Petition for Writ of Certiorari — Michigan Gambling Opposition v. Kempthorne (No. 08-554)

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Supreme C

p ume | ure US.

o\ AY 08-554 OCT 23 2008

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

MICHIGAN GAMBLING OPPOSITION (“MICHGO”),

Petitioner,

DIRK KEMPTHORNE, in his official capacity

as Secretary of the United States

Department of the Interior, e¢ al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

PETITION FORA WRIT OF CERTIORARI

REBECCA A. WOMELDORF JOHN J. BURSCH*

SPRIGGS & HOLLINGSWORTH DANIEL P. ETTINGER

1350 I Street, N.W., Suite 900 JOSEPHA. KUIPER

Washington, D.C. 20005 WARNER NORCROSS &

(202) 898-5800 JUDD LLP

900 Fifth Third Center

111 Lyon Street, N.W.

Grand Rapids, MI 49503

(616) 752-2000

Counsel for Petitioner

OCTOBER 23, 2008 *Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Section 5 of the Indian Reorganization Act of

1934, 25 U.S.C. § 465, authorizes the Secretary of

the Interior — “in his discretion” — to acquire lands

“for Indians.” Two panel members below held that

Section 5 establishes a sufficiently intelligible princi-

ple upon which to delegate the power to take land

into trust, aligning the D.C. Circuit with the First,

Eighth, and Tenth Circuits. Judge Janice Rogers

Brown dissented, agreeing with an earlier Eighth

Circuit decision which held that Section 5 violates the

nondelegation doctrine, agreeing with the Eleventh

Circuit, which has held that Section 5 “does not

delineate the circumstances under which exercise of

[the Secretary's] discretion is appropriate,” and

agreeing with the 24 states that have asked this

Court to hold Section 5 unconstitutional. The first

question presented is:

1. Whether the standardless delegation by

Congress of totally “discretion[ary]” authority to an

Executive official to acquire land “for Indians” is an

unconstitutional delegation of legislative power.

Section 19 of the Indian Reorganization Act of

1934, 25 U.S.C. § 479, defines the term “Indian” to

include members of any recognized Indian tribe “now”

under Federal jurisdiction. On February 25, 2008,

this Court granted the petition for certiorari filed in

Carcieri v Kempthorne, No. 07-526, to determine

whether the Secretary may exercise his unfettered

power to acquire land “for Indians” on behalf of

QUESTIONS PRESENTED - Continued

Indian tribes that were not recognized “now,” i.e., in

1934, when IRA was enacted. The second question

presented here mirrors the question this Court will

answer in Carcieri:

2. Whether the 1934 Act empowers the Secre-

tary to take land into trust for Indian tribes that were

not recognized and under federal jurisdiction in 1934.

ill

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The parties to this proceeding are Petitioner,

Michigan Gambling Opposition; Respondents, Dirk

Kempthorne, in his official capacity as Secretary of

the United States Department of the Interior, and

Lynn Scarlett, in her official capacity as Assistant

Secretary of the United States Department of the

Interior; and Intervenor/Respondent, the Match-E-

Be-Nash-She-Wish Band of Pottawatomi Indians.

Petitioner states that it has no parent corporation or

subsidiaries.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..0...c.cccccesceceeseeeeceseeeees i

PARTIES TO THE PROCEEDING AND RULE

99.6 STATEMENT ........0<c.0-0c-ceccecoseveseosecoceceoseress iii

TABLE OF AUTHORITIES ....0..ccccccccececeececeseeseeeees viii

PETITION FOR CERTIORARI .........cccccccseceeeeeseee- 1

GPINIONS BELOW ........ccccccccccsccecececescscescseseecesees: 1

JURISDICTION ..0.....ccccceceseeee. nan 1

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED ...0..ccccccccccscecescesescsteceacseess 1

INTRODUCTION .......ccccscssscecescsceccscssessseeccecesecescens 3

STATEMENT OF THE CASE ......ccccccsccseseseeeeeseeees

I. At the Time of IRA’s Enactment in 1934,

I].

the Tribe Was Not Federally Recognized....

Sixty-five Years After IRA’s Passage, the

Tribe Is Re-acknowledged by the Federal

RARE LOTR TEE LR STATIN

9.629.008. 50 © Ot ieee eee

The District Court Is Unable to Find an

Intelligible Principle that Would Render

ee ei |

While MichGO’s Case Is On Appeal, This

Court Grants Certiorari in Carcieri uv.

PENI gains cenersdcierenneuaiepmedons

A Divided D.C. Circuit Panel Holds Section

LER I TE TTT EE TOT

Vil.

VIII.

IX.

TABLE OF CONTENTS — Continued

Page

A Divided D.C. Circuit Denies Rehearing

NE iirecsdesicuenesicsihhateeswes ie ialaeiiixnieanenens

The D.C. Circuit Panel Grants a Stay ........

Chief Justice Roberts Denies the Tribe’s

Application to Vacate the Stay....................

REASONS FOR GRANTING THE PETITION.....

AS RECOGNIZED BY THE EIGHTH

CIRCUIT IN SOUTH DAKOTA I, JUDGE

BROWN, AND NO LESS THAN 24

STATES, SECTION 5 OF THE IRA IS A

RARE EXAMPLE OF A STANDARDLESS

DELEGATION. THE STATUTE IS AN

IDEAL VEHICLE FOR THIS COURT

TO REAFFIRM THE NONDELEGATION

DOCTRINE’S CONTINUING VITALITY ..

A. This Court Should Grant the Petition

to Resolve a Conflict with Decisions of

SES SS

B. This Court Should Also Grant the

Petition to Resolve a Circuit Conflict ...

C. The Issues Presented by this Case Are

of National Importance .........................

1. The current economic and political

climate demonstrates the need for

a constitutional check against un-

bridled delegations of legislative

oh ANOS

iw)

TABLE OF CONTENTS — Continued

Page

2. The constitutional validity of Sec-

tion 5 itself has independent, fun-

damental significance ...................085 24

3. Indian gaming has created an

enormous industry that is exempt

from state and local regulation and

ra lctacranetievdseetanvaen sens sce 27

Il. UNDER THIS COURT'S PRECEDENTS,

MICHGO IS ENTITLED TO THE BENE-

FIT OF ANY CHANGE IN LAW RESULT-

ING FROM THE COURT'S DECISION IN

ee pas echaepubicctenassinisbiciveveneseeseses 29

A. This Court’s Precedents Support

Applying Any New Rule Announced in

Carcieri to this Pending Case. ............... 29

B. Applying Carcieri Here Works No

Unfairness and Advances the Public

RS ceabubawebasavows 33

on ss. civ. cabusncndesnedreeeuserevevessevevessonees 35

APPENDIX

Opinion of the Circuit Court of Appeals for the

District of Columbia dated April 29, 2008 ...... App. 1

Opinion of the United States District Court for

the District of Columbia dated February 23,

a acy oahcvdaventacevewswinens App. 36

Vil

TABLE OF CONTENTS — Continued

Page

Order of the Circuit Court of Appeals for the

District of Columbia, denying Appellant’s

petition for rehearing en banc, dated July 25,

BE sivxhicusssscensgreetenticnama nee aaa annie App. 85

Order of the Circuit Court of Appeals for the

District of Columbia, granting Appellant’s

emergency motion for stay of mandate pend-

ing petition of certiorari, dated August 15,

BEE di ckipiarskctiean antioeaacaeensaare App. 87

Order of the Supreme Court of the United

States, denying the motion to vacate the stay

entered by the Court of Appeals, dated Sep-

a, IE isis eco nm annediaelec eed App. 89

TABLE OF AUTHORITIES

Page

CASES

A.L.A. Schechter Poultry Corp. v. United States,

200 UB. 496 (IGG) oisisinviecmmenanene 3,4, 15

American Power & Light Co. v. SEC,

SIO U.S. GO BID ..sciossiiccscesauree ee 12, 16

Carcieri v. Kempthorne,

497 F.3d TS Cl at Car, BO oisdssirseseriesncces passim

Conn. Nat'l Bank v. Germain,

SOD SS. BOD (ISD o.. cssistvs ince csscd eve cceeeene eee 11

Curtis Publishing Co. v. Butts,

S66 US. 190 CRs éteccccuinasoe 30, 31, 32, 33

Federal Power Comm’n v. Hope Nat. Gas Co.,

320 UB. BOE (2G) on ccssiciscccteee 18

Field v. Clark,

143 U.S. GOO (IBD) noivevsesaxisemgs conan 3

Florida Dep’t of Bus. Regulation v. United

States Dept of interior, 768 F.2d 1248 (11th

Cit. 19GB) 6.<0<cicemiannneeeeneeeeeee we, 14; Zi

Harper v. Virginia Dep't of Taxation,

509 UB. OU CRIB) oss ssscosiscsseareoeeie ae 29, 34

Hormel v. Helvering,

3123 UB. G68 CRY ccc 30, 32, 33

Industrial Union Dep't v. American Petroleum

Inst., 448 U.S. 607 (1980) ..... consi 3

Johnson v. Zerbst,

306 US. BEG CHI) wvncdccceccevesvsceeaeee eee 30

TABLE OF AUTHORITIES — Continued

Page

J.W. Hampton, Jr., & Co. v. United States,

EE RRs GE CLOG) cocecscressvessonesoscveseseyeess ekesmaavee 15

Michigan Gambling Opp’n v. Kempthorne,

eee 2. BO CI.U, Gir, BOOB)......00ccevecoevessercevess passim

Michigan Gambling Opp’n v. Kempthorne,

ee ee. BE Lb (TD.DD.C. ZOOT) .....ccecvesscessversrveceseess 1

Mistretta v. United States,

I © cscs ccuoseieeceswvesvesedavscssers 15, 17, 22

Narragansett Indian Tribe v. Narragansett

Elec. Co., 89 F.3d 908 (1st Cir. 1996)...................006 25

National Bread. Co. v. United States,

I OI ss ecbnsvcccnsavvocesasccsnsevensequsesvsasens 18

New York Times Co. v. Sullivan,

I IE OEE cin cascnosnesecvccserenctssovvesecsuens 31, 32

Panama Refining Co. v. Ryan,

EE EE SB UIIED 0. cs cesvencvasecvanssscncessasenncvsesennctly AO

Rosenblatt v. Baer,

363 U.S. 75 (1966)............c0sce00. LOTT

Shivwits Band of Paiute Indians v. Utah,

428 F.3d 966 (10th Cir. 2005), cert. denied,

I ME CED cn vivcnvaseoncccoverevecvscesssnssesveswaees 5, 2

South Dakota v. United States Dep't of the

Interior, 423 F.3d 790 (8th Cir. 2005), cert.

dented, 1275S. Ct. 67 (2006)................... oes 4,5, 20

South Dakota v. United States Dep't of the

Interior, 69 F.3d 878 (8th Cir. 1995), vacated

and remanded, 519 U.S. 919 (1996)............... passim

TABLE OF AUTHORITIES — Continued

Page

Standard Indus., Inc. v. Tigrett Indus., Inc.,

Se Fa te Oe Racanccsckecsissbsccseeasensuainasemeaes 30, 31

Uebersee Finanz-Korporation, A.G. v. McGrath,

Bee ete. ) a nn 30, 31, 32

United States v. Atchison, Topeka, & Santa Fe

Fk, Te Se Oe stirrer 12

United States v. Lopez,

ee re Ce Ce ii tncintrcncetcseseneitcescdeneseceieneiueninges 22

United States v. Roberts,

185 FO LEZ CIDE Ce, PODBD).....0. nc ccccvccesevcscsvesses 4,21

Vanderbark v. Owens-Illinois Glass Co.,

311 U.S. 538 (1941)... usaanehcniaassodaie une 30, 31

Whitman v. American Trucking Assocs., Inc.,

ee ts OE CE Piss ssc ncesstintinenacineceienennens passim

Yakus v. United States,

Ae ras We SI kericcscrintasiniccsccvirnnunaneenan 18

Youakim v. Miller,

GD SF Te. Te CR cee ne snincitieticserensereeennncenned 33

DOCKETED CASES

Carcieri v. Kempthorne, No. 07-526.................0008 10, 20

South Dakota v. United States Dept of the

Pretatent, Ble. DE TD sani vossesncncscccconstnecevessaccesvanes 24, 25

United States v. Roberts, No. 99-991174.................... 22

TABLE OF AUTHORITIES —- Continued

Page

CONSTITUTION

oS Bo NR Re eee werner muvaaaenies wesdly BO

STATUTES

Ne Rumah EME os ccacou sagsncssuivadsncmrennduarseniucanaveccvess passim

ee ie Sh Es casnescseensentincceasenececedenwigetstinensonnde passim

bie foe S| rere sintuleceiatmdpeipucoreaaa alia 1

I os oars nase buena tak geniaeteraphanenetrenoes 1

Se cs, cance cueeus mensiiegmnssar devin seenenaeniin 27

MISCELLANEOUS

GE Fe, Freee: SOAS CIGD svicsicissscccticnsccvnsevssseveserincecsees 7

Cass Sunstein, /s the Clean Air Act Unconstitu-

tional?, 98 MicH. L. REV. 303 (1999) ................. ees

David Schoenbrod, Power Without Responsibil-

ity: How Congress Abuses the People Through

Delegation (1993) ..............0.08 pNP COI RR tN ASR Me 22

Gary Lawson, Delegation and Original Mean-

set, BE VA. Ba, TERY. BET CIE? cvssvtsevienssiasscsevasteeveves 22

http://www.nige.gov/Portals/0/NIGC%20Uploads/

Tribal%20Data/15962006revenues. pdf ................. a7

Iver Peterson, Would-Be Tribes Entice Inves-

tors, N.Y. Times, Mar. 29, 2604 ..............cccccescvesssses 22

TABLE OF AUTHORITIES - Continued

Jan Golab, The Festering Problem of Indian

“Sovereignty”: The Supreme Court ducks.

Congress sleeps. Indians rule., The American

pe a re

John Locke, Second Treatise of Government 87

i eo ec csuavennviwensaal

Marcia Coyle, Bailout proposal grants sweeping

powers to Paulson, but are they legal?, NAT.

Lic, SEDC. ZO, ZOOG.........0.sccsserseccoeeeess Epceeersis

Nicholas S. Goldin, Casting a New Light on

Tribal Casino Gaming: Why Congress Should

Curtail the Scope of High Stakes Indian

Gambling, 84 Cornell L. Rev. 798 (1999)..........

Readjustment of Indian Affairs: Hearings on

H.R. 7902 before the House Committee on

Indian Affairs, 73d Cong., 2d Sess., 8 (1934)....

Page

PETITION FOR CERTIORARI

Petitioner, Michigan Gambling Opposition

(“MichGO”), respectfully petitions this Court to

review the judgment of the United States Court of

Appeals for the D.C. Circuit.

OPINIONS BELOW

The divided opinion of the court of appeals is

reported at 525 F.3d 23 and reproduced in the appen-

dix hereto (“App.”) at 1a. The opinion of the district

court is reported at 477 F. Supp. 2d 1 and reproduced

at App. 36a.

JURISDICTION

The judgment of the court of appeals was entered

on April 29, 2008. App. la. On July 25, 2008, the D.C.

Circuit denied, 7-3, a timely petition for rehearing en

banc. App. 85a. The D.C. Circuit’s jurisdiction was

based on 28 U.S.C. § 1291. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Article I, Section 1 of the United States Constitu-

tion provides:

All legislative Powers herein granted shall

be vested in a Congress of the United States,

which shall consist of a Senate and House of

Representatives.

Section 5 of the Indian Reorganization Act

1934, 25 U.S.C. § 465, provides in pertinent part:

The Secretary of the Interior is hereby au-

thorized, in his discretion, to acquire,

through purchase, relinquishment, gift, ex-

change, or assignment, any interest in lands,

water rights, or surface rights to lands,

within or without existing reservations, in-

cluding trust or otherwise restricted allot-

ments, whether the allottee be living or

deceased, for the purpose of providing land

for Indians.

Section 19 of the Indian Reorganization Act of

1934, 25 U.S.C. § 479, provides in pertinent part:

The term “Indian” as used in this Act shall

include all persons of Indian descent who are

members of any recognized Indian tribe now

under Federal jurisdiction, and all persons

who are descendants of such members who

were, on June 1, 1934, residing within the

present boundaries of any Indian reserva-

tion, and shall further include all other per-

sons of one-half or more Indian blood.

INTRODUCTION

This Court has long recognized the nondelegation

doctrine as “vital to the integrity and maintenance of

the system of government ordained by the Constitu-

tion.” Field v. Clark, 143 U.S. 649, 692 (1892). Yet,

after more than seven decades of disuse, the nondele-

gation doctrine’s continuing vitality is in serious

doubt. Industrial Union Dep’t v. American Petroleum

Inst., 448 U.S. 607, 674-75 (1980) (Rehnquist, J.,

concurring in the judgment). The Court’s reaffir-

mance of the nondelegation doctrine as a guiding

principle is sorely needed, particularly in the current

economic climate, where panic has driven Congress to

consider broad delegations of power to the Executive

Branch without even thinking about separation of

power principles, delegations that the nation has not

seen since the depression-era statutes invalidated in

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935),

and A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935). See, e.g., Marcia Coyle, Bailout

proposal grants sweeping powers to Paulson, but are

they legal?, Nat. L.J., Sept. 29, 2008 (questioning

whether Secretary Paulson’s preliminary bailout

proposal could survive a nondelegation challenge, and

postulating the present IRA litigation as a possible

means “to reinvigorate the doctrine”).

This case is the ideal vehicle for breathing fresh

life into the nondelegation doctrine. MichGO presents

a challenge to a statute, Section 5 of the Indian

Reorganization Act of 1934, 25 U.S.C. § 465, enacted

by the same Congress that enacted the defective laws

at issue in Panama Refining and A.L.A. Schechter.

Section 5 baldly authorizes the Secretary of the

Interior — “in his discretion” — to acquire property

in trust “for Indians.” The Secretary has acquired

thousands of properties across the country under

Section 5, removing vast areas from state and local

jurisdiction. Yet, the statute identifies only a benefici-

ary, not an intelligible guiding principle that allows

courts to discern whether the Secretary’s actions are

in accord with Congressional will.

The Eighth Circuit held Section 5 unconstitu-

tional in South Dakota v. United States Department of

the Interior, 69 F.3d 878 (8th Cir. 1995), vacated and

remanded, 519 U.S. 919 (1996) (“South Dakota I”).

And the Eleventh Circuit in Florida Department of

Business Regulation v. United States Department of

Interior, 768 F.2d 1248, 1256 (11th Cir. 1985), con-

cluded that Section 5 “does not delineate the circum-

stances under which exercise of this discretion is

appropriate.” But the D.C. Circuit has now joined the

First, Eighth, and Tenth Circuits in rejecting non-

delegation challenges to Section 5, in derogation of

this Court’s nondelegation precedent. As Judge Janice

Rogers Brown explained in a lengthy dissent below:

Like other courts that have rejected nondele-

gation challenges to §5, Carcieri v. Kemp-

thorne, 497 F.3d 15, 41-43 (1st Cir. 2007) (en

banc); South Dakota v. U.S. Dep't of the Inte-

rior, 423 F.3d 790, 799 (8th Cir. 2005) [South

Dakota II\; United States v. Roberts, 185 F.3d

1125, 1137 (10th Cir. 1999), the majority

nominally performs a nondelegation analysis

but actually strips the doctrine of any mean-

ing.... Although I agree the nondelegation

principle is extremely accommodating, the

majority’s willingness to imagine bounds on

delegated authority goes so far as to render

the principle nugatory. ... [The panel major-

ity’s] approach differs radically from the

Supreme Court’s analytical process in non-

delegation challenges.

App. 20a-2l1a (emphasis added, citations omitted).

In South Dakota I, Justices Scalia, Thomas, and

O’Connor urged the Court to resolve Section 5’s

constitutionality. 519 U.S. 919, 920-23 (1996) (Scalia,

J., dissenting). Over the last 12 years, that request

has been joined by a chorus of 24 states.' The passage

of time has been more than sufficient for the question

of Section 5’s constitutionality to “percolate.” It is

clear that simply incanting that 75 years have passed

since the last successful nondelegation challenge — as

most courts have done — is an insufficient basis for

' See Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966

(10th Cir. 2005), cert. denied, 127 S. Ct. 38 (2006) (Utah; sup-

porting amici curiae brief of Rhode Island, Alabama, Arkansas,

Colorado, Idaho, lowa, Kansas, Louisiana, Michigan, Missoun,

Nevada, New York, North Dakota, Ohio, South Dakota, and

Wyoming); South Dakota Il, cert. denied, 127 S. Ct. 67 (2006)

(South Dakota); Carcieri, No. 07-526 (2008) (Rhode Islané;

supporting amici curiae brief of Alabama, Alaska, Arkansas,

Connecticut, Florida, Idaho, Illinois, lowa, Kansas, Massachu-

setts, Missouri, North Dakota, Oklahoma, Pennsylvania, South

Dakota, and Utah).

concluding that Section 5’s unbridled delegation of

legislative power is permissible. The fact that parties

and numerous states have been forced to bring suc-

cessive, adverse circuit decisions to this Court is a

compelling reason to grant MichGO’s petition, par-

ticularly where those decisions conflict with this

Court’s jurisprudence. The immense practical and

legal impacts of the nondelegation question, both on

our constitutional system and state sovereignty,

counsel in favor of this Court’s immediate review.

The importance of the second question presented

cannot be reasonably disputed, as the Court has

already agreed to review the same issue in Carcieri: if

Section 5 permissibly delegates to the Executive

branch carte blanche authority to acquire property in

trust for Indians, then does the plain language of 25

U.S.C. § 479 restrict the beneficiaries of such trust

actions to those tribes that were federally recognized

in 1934, when IRA was enacted? MichGO respectfully

requests that the Court grant the petition on this

question as well. Since it is undisputed in this case

that the Tribe was not federally recognized in 1934,

MichGO asks that, in the event the Court adopts the

Petitioner’s position in Carcieri, the Court summarily

reverse and remand the D.C. Circuit’s decision in this

case.

STATEMENT OF THE CASE

I At the Time of IRA’s Enactment in 1934,

the Tribe Was Not Federally Recognized.

The Tribe descends primarily from a band of

Pottawatomi Indians led by Chief Match-E-Be-Nash-

She-Wish during the late 1700s and early 1800s.

From early in its history, the federal government

recognized the Tribe, which had “unambiguous previ-

ous Federal acknowledgement” as a tribe through

1870. D.C. Cir. J.A. at 1767, 1774, 1777, 1785.

in a report on the Tribe’s history, BIA determined

conclusively that the Tribe’s federal acknowledgement

ceased in 1870, when the Tribe chose to discontinue

its compliance with the Treaty of 1855 and received

its last annuity-commutation payment. 62 Fed. Reg.

38,113 (1997). As the Tribe explained below, “the

federal government withheld formal acknowledge-

ment beginning in 1870.... Thus, for well over a

century, the Tribe was denied both federal recognition

and reservation lands....” Appeal Br. of Def.-

Appellee Match-E-Be-Nash-She-Wish Band of Pot-

tawatomi Indians at 3.

II. Sixty-five Years After IRA’s Passage, the

Tribe Is Re-acknowledged by the Federal

Government.

In the mid-1990s, the Tribe applied for federal

acknowledgment through the Department of Inte-

rior’s formal recognition procedure. In a letter to the

Assistant Secretary of Indian Affairs, the Tribe stated

that its tribal council had agreed to pursue federal

acknowledgement provided “there would never be

casinos in our Tribe.” D.C. Cir. J.A. at 1863. Almost

immediately after receiving federal acknowledgment,

however, the Tribe submitted an application request-

ing that the government set aside land in trust for

the benefit of the Tribe to construct and operate a

casino. D.C. Cir. J.A. at 1733-58. On May 13, 2005,

Respondents issued a notice of their intent to take the

proposed casino site in trust for the Tribe. D.C. Cir.

J.A. at 60-61.

Ill. The Lawsuit

MichGO is a Michigan non-profit corporation

that seeks to protect the citizenry and quality of life

in its community by opposing the proliferation of

gambling venues. Its members reside in West Michi-

gan and own the businesses and homes that will be

most affected if the Tribe is successful in its attempt

to bring 3.1 million casino visitors a year to a rural

community of only 3,000 residents. D.C. Cir. J.A. at

21, 465, 1202, 1207-08.

DOIs asserted authority to take land in trust for

the Tribe is Section 5 of the Indian Reorganization

Act of 1934. 25 U.S.C. § 465. Section 5 is a broad,

generic statute that tautologically authorizes the

Secretary to acquire land “for the purpose of provid-

ing land for Indians.” Jd. Count IV of MichGO’s

Complaint alleges that Section 5 contains no intelli-

gible standard to limit the Secretary’s discretion to

take land in trust, and therefore violates the non-

delegation doctrine.

IV. The District Court Is Unable to Find an

Intelligible Principle that Would Render

Section 5 Constitutional.

The District Court issued an opinion dismissing

MichGO’s nondelegation claim on February 23, 2007.

The court did not identify an intelligible limiting

principle in Section 5’s bald statutory text, but rather

relied on the purported limiting regulations the

Department of the Interior had promulgated. App.

81a-83a. The District Court’s holding was directly

contrary to Whitman v. American Trucking Associa-

tions, Inc., 531 U.S. 457, 473 (2001), in which this

Court held that an agency cannot cure an unconstitu-

tional, standardless delegation of power through the

promulgation of limiting regulations. MichGO filed a

timely appeal with the U.S. Court of Appeals for the

D.C. Circuit on March 22, 2007.

V. While MichGO’s Case Is On Appeal, This

Court Grants Certiorari in Carcieri v.

Kempthorne.

After briefing and oral argument, and while the

parties were awaiting a decision from the D.C. Cir-

cuit, this Court granted certiorari on February 25,

2008, to review the First Circuit’s en banc decision in

Carciert v. Kempthorne, 497 F.3d 15 (1st Cir. 2007).

In Carcieri, the First Circuit upheld the Secretary of

Interior’s decision to take land in trust under IRA for

the benefit of the Narragansett Tribe, even though

the tribe had not been federally recognized in 1934,

when IRA was enacted. See itd. at 22. The First Cir-

cuit held that IRA’s definition of eligible “Indian”

tribes — namely, those “recognized [as] Indian tribe[s]

now under Federal jurisdiction,” 25 U.S.C. § 479

(emphasis added) — was ambiguous, and that the

Secretary’s interpretation was entitled to Chevron

deference. See id. Applying that deference, the court

held that the Secretary had reasonably interpreted

IRA to require only that a tribe be federally recog-

nized at the time of the relevant land-in-trust appli-

cation. See id.

As the United States explained in opposing the

certiorari petition in Carcieri, federai courts have

consistently held that a tribe need not have been

recognized in 1934 to qualify as “Indians” under IRA.

Br. in Opp’n, Carcieri v. Kempthorne, No. 07-526, at 5

(Nov. 21, 2007) (stating that the First Circuit’s deci-

sion “does not conflict with the decision of any other

circuit”). The first hint of any contrary judicial opin-

ion on this issue came when this Court granted

certiorari in Carcieri and agreed to review the ques-

tion of “[wjhether the 1934 Act empowers the Secre-

tary to take land into trust for Indian tribes that were

not recognized and under federal jurisdiction in 1934.”

Immediately following that announcement, MichGO

filed with the D.C. Circuit a Motion to Supplement

the Issues Presented for Review to include the new

statutory interpretation issue presented in Carcieri,

but the court denied the motion on March 19, 2008.

VI. A Divided D.C. Circuit Panel Holds Sec-

tion 5 Constitutional.

The D.C. Circuit issued a 2-1 opinion on the

merits of MichGO’s appeal on April 29, 2008. In its

ruling on the nondelegation issue, the majority chas-

tised the District Court for relying on administrative

regulations to provide the intelligible limiting princi-

ple. App. 12a. Nonetheless, the majority upheld the

statute, inferring a limiting principle from IRA’s

purported “purpose” of promoting economic self-

sufficiency, a purpose that the majority found implied

in the Act’s other provisions, general context, and

legislative history. App. 13a-17a. In so holding, the

majority aligned itself with decisions of the First,

Fighth, and Tenth Circuits.

In a lengthy dissent, Judge Janice Rogers Brown

concluded that Section 5 violates the nondelegation

doctrine, agreeing with the Eighth Circuit’s earlier

decision in South Dakota I, and with the Eleventh

Circuit’s decision in Florida that Section 5 contains

no intelligible principle to guide the Secretary’s

statutory discretion. Judge Brown criticized the

majority’s willingness to go beyond statutory text to

find a limiting standard, noting that when a standard

is entirely absent, as is the case here, this Court has

refused to create one out of whole cloth. App. 24a

(Brown, J., dissenting) (citing Conn. Natl Bank v.

Germain, 503 U.S. 249, 254 (1992)). As Judge Brown

observed, “rather than an ambiguous standard that

requires interpretation, §5 provides an obvious,

unambiguous direction that the Secretary is to have

complete discretion,” and the majority’s asserted

intelligible principle “arises from the mayjority’s

imagination, not from the [statutory] sources.” App.

25a. “To rely on the purpose of ‘providing land for

Indians’ does nothing to cabin the Secretary’s discre-

tion over providing land for Indians because it is

tautological. To say the purpose is to provide land for

Indians in a broad effort to promote economic devel-

opment (with a special emphasis on preventing land

loss) is tautology on steroids.” App. 28a.

Judge Brown further noted that even if a “mood

of economic self-sufficiency can be said to permeate

§ 5, [that mood] has never constituted a standard to

guide the Secretary’s decisions.” App. 28a. The BIA

and the courts have interpreted the statute to grant

the Secretary unfettered discretion over which land to

take in trust. App. 28a (listing cases). In holding that

Section 5 is nonetheless constitutional, the panel

majority, following the First, Eighth, and Tenth

Circuits, took an approach that “differs radically from

the Supreme Court’s analytical process in nondelega-

tion challenges.” App. 30a (citing Intermountain Rate

Cases [United States v. Atchison, Topeka, & Santa Fe

Ry.|, 234 U.S. 476, 486-86, 488 (1914), and American

Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)).

Judge Brown concluded by emphasizing Section 5’s

exceptional importance. “[Section] 5 allows the Secretary,

by taking land in trust for Indians, to oust state

jurisdiction in favor of government by the beneficiar-

ies he chooses.” App. 34a; accord South Dakota I, 69

F.3d at 882 (“By its literal terms, the statute permits

the Secretary to [take] a factory, an office building, a

residential subdivision, or a golf course in trust for an

Indian tribe, thereby removing these properties from

state and local tax rolls.”). In so doing, the Secretary

exercises the power “to determine who writes the law,

and thus indirectly what the law will be, for particu-

lar plots of land.” App. 33a.

VII. A Divided D.C. Circuit Denies Rehearing

En Banc.

MichGO filed a timely petition for rehearing en

banc, and the D.C. Circuit ordered Respondents to

file a response on the issue of whether Section 5

violates the nondelegation doctrine. Although the

Court ultimately declined en banc review, Chief

Judge David B. Sentelle and Judge Thomas B. Grif-

fith joined Judge Janice Rogers Brown, indicating

that they would have granted the petition. App. 85a.

VIII. The D.C. Circuit Panel Grants a Stay.

Following denial of the petition for rehearing

en banc, Respondents rejected MichGO’s request to

refrain from taking the Tribe’s land in trust pending

this Court’s decision on MichGO’s petition for certio-

rari. Respondents opposed MichGO’s subsequent

stay motion, arguing that there was no reasonable

probability that four Justices of this Court would vote

to grant certiorari. Apparently rejecting that argu-

ment, the same pane! that ruled 2-1 against MichGO

on the merits unanimously granted MichGO’s stay

motion. App. 87a.

IX. Chief Justice Roberts Denies the Tribe’s

Application to Vacate the Stay.

The Tribe filed an application to the Chief Justice

seeking to vacate the D.C. Circuit’s stay order. Again,

the Tribe argued that there was no “reasonable

probability” that four Justices would vote to grant

certiorari. Chief Justice Roberts promptly denied the

Tribe’s motion, leaving the stay in place until the

Court resolves MichGO’s petition. App. 89a.

REASONS FOR GRANTING THE PETITION

I AS RECOGNIZED BY THE EIGHTH CIR-

CUIT IN SOUTH DAKOTA I, JUDGE

BROWN, AND NO LESS THAN 24 STATES,

SECTION 5 OF THE IRA IS A RARE EX-

AMPLE OF A STANDARDLESS DELEGA-

TION. THE STATUTE IS AN IDEAL

VEHICLE FOR THIS COURT TO REAF-

FIRM THE NONDELEGATION DOC-

TRINE’S CONTINUING VITALITY.

The nondelegation doctrine is one of the corner-

stones of separation of powers jurisprudence,

Mistretta v. United States, 488 U.S. 361, 371 (1989),

existing since the days of Locke. See John Locke,

Second Treatise of Government 87 (R. Cox ed. 1982)

(“The legislat[ure] can have no power to transfer their

authority of making laws, and place it in other

hands.”). The doctrine is codified in the Constitution’s

text, which vests “la]ll legislative Powers herein

granted ...in a Congress of the United States,” U.S.

Const. art. 1, § 1, and the “text permits no delegation

of those powers.” Whitman, 531 U.S. at 472. To avoid

an unconstitutional delegation when conferring

decision-making authority on an agency, Congress is

required to articulate, “by legislative act,” an intelli-

gible principle to direct the person or body authorized

to act. Jd. at 473 (quoting J.W. Hampton, Jr., & Co. uv.

United States, 276 U.S. 394, 409 (1928)).

It has been nearly 75 years since this Court last

struck down a statute on nondelegation grounds, see

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935),

and A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935), leaving the doctrine’s continuing

viability in doubt. But the present case — which

involves a statute enacted by the same depression-era

Congress that enacted the unconstitutional legisla-

tion in Panama Refining and A.L.A. Schechter —

provides the ideal vehicle to affirm the doctrine’s

continued vitality. As the Eighth Circuit observed in

South Dakota I: “It is hard to imagine a program

more at odds with separation of powers principles”

than Section 5 of IRA. 69 F.3d at 885.

A. This Court Should Grant the Petition

to Resolve a Conflict with Decisions of

this Court.

Finding no intelligible guiding principle in Sec-

tion 5’s text, the majority below purported to infer

such a principle from “the purpose and factual back-

ground of the IRA and section 5’s statutory context.”

App. 13a. But the panel majority’s approach — which

mirrors that of the other circuits that have analyzed

Section 5’s constitutionality — “differs radically from

[this] Court’s analytical process in nondelegation

challenges.” App. 30a (Brown, J., dissenting). That is

because “even in a nondelegation challenge, a court

must find meaning for an ambiguous phrase in some

relevant text.” App. 3la (Brown, J., dissenting) (em-

phasis added) (discussing this Court’s decisions in

Intermountain Rate Cases and American Power &

Light Co.). “Here, by contrast, the majority per-

ceive[d] a mood of economic development, which

Congress did not articulate, and the majority justifies

this mood by its own assessment of Congress’s good

intentions.” App. 3la (Brown, J., dissenting).

The Circuits’ willingness to rely on statutory

background and context to restrain Executive branch

authority is particularly suspect where, as here, these

sources do not even uniformly endorse the judicially

defined purpose of “economic self-sufficiency.” App.

25a-26a (Brown, J., dissenting) (noting, for example,

that it is difficult to infer a principle of economic

“self-support” in a statutory structure that “actually

installs a paternalistic scheme of government

support”). To the contrary, as Judge Brown noted,

Section 5’s background and context lend themselves

to any number of potential “intelligible principles”:

Making a different selection from the same

smorgasbord, I might posit quite different

principles — to provide land for landless Indi-

ans; to acquire trust lands to be used for

farming; to supplement grazing and forestry

lands; to provide lands in close proximity to

existing reservations; to consolidate checker-

board reservations. All of these goals would

be reasonable, but none can be derived from

the text of the IRA. The very fact that so

many standards can be proposed merely

highlights the fact that the statute itself fails

to describe how the power conveyed is to be

exercised.

App. 28a (emphasis added).

Similarly misplaced is the panel miajority’s

examination of IRA’s legislative history, which, in the

majority’s view, “underscores [the statute’s] purpose

of addressing economic and social challenges facing

American Indians by promoting economic develop-

ment.” App. 17a (citations omitted). Under this

Court’s precedent, legislative history can further

illuminate an intelligible principle ensconced in the

statutory text, but legislative history cannot supply

one where the statute is silent. See, e.g., Mistretta,

488 U.S. at 376 n.10 (using legislative history to add

content to the statutory factors); Whitman, 531 U.S.

at 472 (Congress must articulate an _ intelligible

principle “by legislative act”) (emphasis added). Here,

inferring any Congressional purpose “would be con-

trary to the plain text of § 5, which gives the Secre-

tary unfettered discretion over such decisions.” App.

3la (Brown, J., dissenting). Moreover, as is nearly

always the case, the legislative history does not point

in a single direction. See, e.g., South Dakota [, 69 F.3d

at 883 (reviewing the legislative history and conclud-

ing that Congress enacted Section 5 for the purpose of

providing homestead or agrarian lands for landless

Indians).

It is the complete lack of any discernible intelli-

gible principle in Section 5’s text that distinguishes

this statute from all others this Court has upheld

over nondelegation challenges in the past 75 years.

Section 5 does not contain even the very broad “public

interest,” “public health,” “fair and equitable,” or “just

and reasonable” standards that have previously

represented the outer limits of a constitutional dele-

gation of legislative power. See, e.g., Whitman, 531

U.S. at 475-76 (statute required EPA “to set air

quality standards at the level that is ‘requisite’... to

protect the public health with an adequate margin of

safety”); Yakus v. United States, 321 U.S. 414, 420

(1944) (statute directed agency to set prices that are

“fair and equitable”); Federal Power Comm’n v. Hope

Nat. Gas Co., 320 U.S. 591, 600-01 (1944) (statute

directed agency to set rates that are “just and reason-

able”); National Broad. Co. v. United States, 319 U.S.

190, 225 (1943) (statute directed agency to grant

broadcast licenses in the “public interest”). In

contrast, Section 5 simply identified the beneficiaries

on whose behalf the government should hold the land:

“for Indians.” 25 U.S.C. § 465. “[W]hen Congress

authorize[d} the Secretary to acquire land in trust ‘for

Indians,’ it [gave] the agency no ‘intelligible principle,’

no ‘boundaries’ by which the public use underlying a

particular acquisition may be defined and judicially

reviewed.” South Dakota I, 69 F.3d at 883. Because

Section 5 lacks any statutory standard allowing the

Judicial branch to measure an agency’s action and

discern whether that action is in accord with Con-

gressional will, this Court should hold Section 5

unconstitutional.

B. This Court Should Also Grant the Peti-

tion to Resolve a Circuit Conflict.

The Eighth Circuit in South Dakota I was the

first appellate court to consider Section 5’s constitu-

tionality. Unable to discern an intelligible principle,

the court was forced to conclude that Section 5 “de-

fine[s] no boundaries to the exercise of this [land

acquisition] power.” 69 F.3d at 882. “Indeed,” the

court observed, Section 5 would “permit the Secretary

to purchase the Empire State Building in trust for a

tribal chieftain as a wedding present.” Jd. “The result

is an agency fiefdom.” Jd. at 885.

Before the Eighth Circuit’s ruling, the Secretary

of the Interior had taken the position that IRA land

acquisitions were not subject to judicial review. South

Dakota [, 519 U.S. at 920 (Scalia, J., dissenting).

Following the decision, the Department of the Inte-

rior promptly changed course and promulgated a new

regulation providing for judicial review. The United

States then petitioned this Court to vacate and re-

mand the Eighth Circuit’s decision, and this Court

granted that request. /d. at 920-21.

In dissent, Justice Scalia, joined by Justices

Thomas and O’Connor, urged the Court to hear the

merits of the nondelegation challenge, finding it

“inconceivable that this reviewability-at-the-pleasure-

of-the-Secretary could affect the constitutionality of

the IRA in anyone’s view, including that of the Court

of Appeals.” Jd. at 922-23. As 16 state amici aptly

noted in support of the petition for certiorari in

Carcieri, “No other court has challenged [the Eighth

Circuit’s conclusion in South Dakota I), or found any

significant limitation on the trust power in the text of

the IRA.” Brief of the States of Alabama et al. as

Amici Curiae Supporting Petitioners, Carcieri v.

Kempthorne, No. 07-526, at 21 (Nov. 21, 2007).

On remand, a different Eighth Circuit panel

upheld Section 5’s constitutionality. South Dakota v.

U.S. Dep't of the Interior, 423 F.3d 790, 799 (8th Cir.

2005) [South Dakota II]. The South Dakota ITI panel

invoked the same suspect historical and statutory

“context” and legislative history that Judge Brown

thoroughly discredited in her dissenting opinion. 423

F.3d at 797-99. And a primary motivator appeared to

be the fact that this Court has struck down only two

statutory provisions on nondelegation grounds, and

not since 1935. Id. at 795. In fact, one or more of the

threads of this questionable analytical triumvirate —

historical/statutory context, legislative history, and

the length of time since the last successful nondelega-

tion challenge — can be found in every circuit decision

holding Section 5 constitutional. See, e.g., App. 15a-

20a; Roberts, 185 F.3d at 1137; Carcieri, 497 F.3d at

42-43.

The Fighth Circuit’s decision in South Dakota I

and Judge Brown’s dissent below directly conflict

with the suspect holdings of the First, Eighth, Tenth,

and D.C. Circuits. But the conflict does not end there.

In Florida Department of Business Regulations v.

United States Department of Interior, 768 F.2d 1248

(11th Cir. 1985), cert. denied, 475 U.S. 1011 (1986),

the Eleventh Circuit expressly held that Section 5

was an unreviewable exercise of discretion because

the statute “does not delineate the circumstances

under which exercise of this discretion is appropri-

ate.” Jd. at 1256. Though not specifically resolving

a nondelegation challenge. the Eleventh Circuit’s

decision in Florida is wholly consistent with the

reasoning of South Dakota I and Judge Brown’s

dissent, furthering the split among the circuits. Given

the post-Whitman trend in favor of upholding the

statute, the split is unlikely to deepen. Further

percolation in the lower courts will therefore not be

beneficial unless and until this Court reaffirms the

nondelegation doctrine’s continuing vitality.

C. The Issues Presented by this Case Are

of National Importance.

1. The current economic and political

climate demonstrates the need for

a constitutional check against un-

bridled delegations of legislative

power.

“It is difficult to imagine a principle more essen-

tial to democratic government than that upon which

the doctrine of unconstitutional delegation is

founded.” Mistretta, 488 U.S. at 415 (Scalia, J., dis-

senting). That is why commentators have continued

to urge this Court to revitalize the nondelegation

doctrine, just as the Court used United States uv.

Lopez, 514 U.S. 549 (1995), to remind Congress that

its powers under the Commerce Clause were in fact

limited. See Cass Sunstein, Js the Clean Air Act

Unconstitutional?, 98 MIcH. L. REv. 308, 356 (1999)

(“In the most extreme cases, open-ended grants of

authority should be invalidated. ... A Supreme Court

decision to this effect could have some of the salutary

effects of the Lopez decision in the Commerce Clause

area, offering a signal to Congress that it is important

to think with some particularity about the standards

governing agency behavior.”); David Schoenbrod,

Power Without Responsibility: How Congress Abuses

the People Through Delegation (1993); Gary Lawson,

Delegation and Original Meaning, 88 VA. L. REv. 327,

351 (2002); see also Petition for Writ of Certiorari,

United States v. Roberts, No. 99-991174, at 28 (Jan.

12, 2000) (“The importance of [whether Section 5

violates the nondelegation doctrine] is beyond cavil.”).

The need for such a revitalization takes on spe-

cial importance in the context of legislative proposals

to address the current economic crisis. Some have

compared the economic climate to the panic that

gripped the country during the Great Depression, and

it is no coincidence that it was Great Depression-era

legislation that this Court last found violated the

nondelegation principle. This Court’s invalidation of

Section 5 would have the important effect of forcing

Congress to consider intelligible guiding principles as

it grants unprecedented authority.

Of course, the mischief that can be wrought by an

agency acting without an intelligible limiting princi-

ple can also be observed in non-crisis situations. For

example, in Shivwits, 428 F.3d at 969-70, the Secre-

tary accepted into trust two parcels of land that a

tribe purchased using a loan from an advertising

company. The tribe then leased the property back to

the advertiser so the advertiser could construct

billboards that would have otherwise been prohibited

by state and local regulations. The transaction was

deliberately structured to assist a private (non-tribal)

company in evading state and local law; yet, the

Secretary did not hesitate to take the land in trust.

This Court should take the opportunity pre-

sented by Section 5’s bald statutory language to

revitalize an important constitutional doctrine that

still has an important role to play in our government

of separated powers. Indeed, even if the Court agrees

with conventional wisdom that the nondelegation

principle is a constitutional doctrine in permanent

exile, then the doctrine should be given a proper,

public burial.

2. The constitutional validity of Sec-

tion 5 itself has independent, fun-

damental significance.

In Whitman, this Court held that the scope of

discretion which can be delegated to administrators,

consistent with the nondelegation doctrine, is de-

pendent on the importance and potential impact of

the program at issue. 531 U.S. at 475. Here, the

monumental importance of Section 5 can hardly be

overstated.

In its Petition for Certiorari in South Dakota I,

the United States informed this Court that IRA is

“one of the most important congressional enactments

affecting Indians,” “the cornerstone of modern federal

law respecting Indians.” Petition for Writ of Certio-

rari, South Dakota v. U.S. Dep’t of the Interior, No.

95-1956 at 15, 16 (June 3, 1996). That statement is

undeniably true. Because of IRA, the Bureau of

Indian Affairs manages more than 50 million acres of

land on behalf of more than 560 recognized Indian

tribes.

The United States in South Dakota I also re-

jected as “unpersuasive” the state’s argument that

Section 5’s constitutionality lacks “national impor-

tance.” Reply Br., South Dakota v. U.S. Dep’t of the

Interior, No. 95-1956 at 1 (Aug. 30, 1996). Again, that

statement is undeniably true. When the Secretary

takes land in trust, he strips away the host state’s

sovereignty and jurisdiction and places them in the

hands of a competing sovereign, insulating the land

from state and local taxation, 25 U.S.C. § 465 para. 4,

and from state regulation, see Narragansett Indian

Tribe v. Narragansett Elec. Co., 89 F.3d 908, 915 (1st

Cir. 1996). “Thus, the trust acquisition authority is a

power to determine who writes the law, and thus

indirectly what the law will be, for particular plots of

land. The consequences of the Indian country desig-

nation are profound.” App. 33a (Brown, J., dissent-

ing).

In sum, one of the greatest powers — the eviscera-

tion of state jurisdiction — is coupled with an unlim-

ited delegation of authority — to provide land “for

Indians.” In the United States’ own words, “This

Court has the overarching responsibility for deter-

mining conclusively whether Congress has _ over-

stepped constitutional limitations.” Petition for Writ

of Certiorari, South Dakota v. U.S. Dep't of the Inte-

rior, No. 95-1956 at 4 (June 3, 1996).

Importantly, the significance of Section 5’s consti-

tutionality is exponentially greater than the harm

alleged in this particular case, which involves the

environmental and societal impacts of a casino draw-

ing more than 3 million visitors annually to a rural

community of only 3,000 residents. The next land-in-

trust decision could involve, for example, the pro-

posed placement of a tribal nuclear waste facility,

exempt from any state or local zoning laws. Would

the Congress that enacted IRA have approved of that

proposed land use, even in the name of economic

development? There is no intelligible principle to

guide such an inquiry.

Ironically, as originally proposed, IRA contained

standards which very likely would have rendered

it constitutional.” While the original bill tried to

articulate basic policy choices and impose _ real

boundaries, the bill was gutted because legislators

could not agree on its purpose. Compare Housing

* The original draft of the bill provided for Indian lands in

Title III. Readjustment of Indian Affairs: Hearings on H.R. 7902

before the House Committee on Indian Affairs, 73d Cong., 2d

Sess., 8 (1934) (hereinafter House Hearings). Section 1 set out a

detailed declaration of policy. Jd. Section 6 required the Secre-

tary to “make economic and physical investigation and classifi-

cation of the existing Indian lands, of intermingled and adjacent

non-Indian lands and of other lands that may be required for

landless Indian groups or individuals” and to make “such other

investigations as may be needed to secure the most effective

utilization of existing Indian resources and the most economic

acquisition of additional lands.” Jd. at 8-9. The Secretary was

further required to classify areas which were “reasonably

capable of consolidation” and to “proclaim the exclusion from

such areas of any lands not to be included therein.” 7d. at 8.

Section 8 allowed the tribe to acquire the interest of any “non-

member in land within its territorial limits” when “necessary for

the proper consolidation of Indian lands.” /d. at 9.

Hearings at 1-14 with 48 Stat. 984 (1934).° Because

Congress deliberately eliminated all _ intelligible

standards from the original bill’s text, it can hardly

be said that Congress articulated such standards in

the 1934 legislative history. While Congress is em-

powered to enact legislation to address societal prob-

lems, it is Congress’s responsibility to devise solutions

that pass constitutional muster, and to specify those

solutions in the statutory text, rather than ceding

that authority to the Executive branch.

3. Indian gaming has created an

enormous industry that is exempt

from state and local regulation and

taxation.

Casino gambling is “one of the nation’s fastest

growing industries.” Nicholas S. Goldin, Casting a

New Light on Tribal Casino Gaming: Why Congress

Should Curtail the Scope of High Stakes Indian

Gambling, 84 Cornell L. Rev. 798, 800 (1999). From

1996 to 2006, tribal gaming revenues quadrupled

from $6.3 billion to $25 billion, according to the

National Indian Gaming Commission.* And _ the

stratospheric growth shows no sign of slowing, as

* The detailed statement of general policy for the Act as a

whole was eliminated. Section 1 was entirely deleted. Section 7,

the predecessor to 25 U.S.C. § 465, was stripped of standards

and renumbered Section 5.

* See http://www. nigce.gov/Portals/0/NIGC%20Uploads/Tribal

%20Data/19962006revenues. pdf.

hundreds of tribes seek federal recognition, nearly all

of them receiving significant financial backing from

non-Indian investcrs hoping to reap substantial

profits from casino management contracts. Iver

Peterson, Would-Be-Tribes Entice Investors, N.Y.

Times, Mar. 29, 2004, at Al.

As tribal gaming has become more widespread,

so have the costs. “[S]tates now facing the biggest

budget deficits are also the states with the largest

number of tax-exempt Indian casinos and tax-evading

tribal businesses.” Jan Golab, The Festering Problem

of Indian “Sovereignty”: The Supreme Court ducks.

Congress sleeps. Indians rule., The American Enter-

prise, Sept. 2004, at 31. This regime raises serious

federalism concerns, as noted by both Judge Brown in

her dissent and the Eighth Circuit in South Dakota I.

App. 34a (“[Section] 5 allows the Secretary, by taking

land in trust for Indians, to oust state jurisdiction in

favor of government by the beneficiaries he chooses.”);

69 F.3d at 882 (“By its literal terms, the statute

permits the Secretary to [take] a factory, an office

building, a residential subdivision, or a golf course in

trust for an Indian tribe, thereby removing these

properties from state and local tax rolls.”). This Court

should review the constitutionality of the Secretary’s

unlimited power to create islands of foreign sover-

eignty within states’ borders.

il. UNDER THIS COURT’S PRECEDENTS,

MICHGO IS ENTITLED TO THE BENEFIT

OF ANY CHANGE IN LAW RESULTING

FROM THE COURT’S DECISION IN CAR-

CIERI.

MichGO requests that the Court grant certiorari

on a second substantial question, the Carcieri issue

that is already pending before the Court. That issue

is whether the Secretary has the authority under

Section 5 to take land in trust for Indian tribes that

were not federally recognized in 1934, the year IRA

became effective. See 25 U.S.C. § 479 (defining “In-

dian” as a member of any federally recognized Indian

tribe “now under federal jurisdiction”) (emphasis

added). If the answer is “no,” the land-in-trust deci-

sion in this case is invalid because the Tribe was not

federally recognized in 1934. Although MichGO did

not raise this argument in the District Court due to

the overwhelming case law that had rejected it, this

Court’s precedents entitle MichGO to the benefit of

any change in the law that results from Carciert.

A. This Court’s Precedents Support Ap-

plying Any New Rule Announced in

Carcieri to this Pending Case.

It is well settled that a federal court must apply

the law in effect at the time it renders its decision.

See Harper v. Virginia Dept of Taxation, 509 U.S. 86

(1993). “When this Court applies a rule of federal law

to the parties before it, that rule is the controlling

interpretation of federal law and must be given full

retroactive effect in all cases still open on direct

review and as to all events, regardless of whether

such events predate or postdate our announcement of

the rule.” Jd. at 97. Accordingly, once the Court issues

its decision in Carcieri, the decision will apply to all

pending cases, including this one.

MichGO attempted to raise the Carcieri issue in

the D.C. Circuit immediately after this Court granted

certiorari. The Tribe argued that MichGO had waived

the issue by failing to raise it below, and the D.C.

Circuit refused to consider it. But the Tribe’s position

is inconsistent with this Court’s precedents concern-

ing intervening changes of law. The Court has held

that, to be effective, a waiver must be “an intentional

relinquishment or abandonment of a known right or

privilege.” Johnson v. Zerbst, 304 U.S. 458, 464

(1938). A party does not waive a “known right” by

failing to raise an issue that only became apparent as

a result of an intervening court decision following

trial. See, e.g., Curtis Publishing Co. v. Butts, 388

U.S. 130, 143-44 (1967); Rosenblatt v. Baer, 383 U.S.

75 (1966); Uebersee Finanz-Korporation, A.G. v. |

McGrath, 343 U.S. 205 (1952); Hormel v. Helvering,

312 U.S. 552 (1941); Vanderhurk v. Owens-Illinois

Glass Co., 311 U.S. 538 (1941).

As Justice Black explained in Standard Indus-

tries, Inc. v. Tigrett Industries, Inc., 397 U.S. 586

(1970) (Gudgment affirmed by an equaliy divided

Court), “we have frequently allowed parties to raise

issues for the first time on appeal when there has

been a significant change in the law since the trial.

The principle has not been limited to constitutional

issues, and the Court has permitted consideration on

appeal of statutory arguments not presented below.”

Id. at 587 (Black, J., dissenting) (citing cases). “In

deciding whether such new arguments can be consid-

ered, we have primarily considered three factors:

first, whether there has been a material change in

the law; second, whether assertion of the issue earlier

would have been futile; and third, whether an impor-

tant public interest is served by allowing considera-

tion of the issue.” Jd. at 587-88.

Applying these standards, the Court has allowed

parties to raise new issues for the first time on appeal

when a decision in another case has changed the legal

landscape following trial. See, e.g., Curtis Publishing,

388 U.S. at 143-44; Rosenblatt, 383 U.S. at 87-88;

Uebersee Finanz-Korporation, 343 U.S. at 212-13;

Hormel, 312 U.S. at 558-60; and Vanderbark, 311 U.S.

at 542-43. In Curtis Publishing, for example, the

defendant in a libel suit raised the defense of sub-

stantial truth but not any constitutional defenses.

388 U.S. at 137. Shortly after trial, this Court decided

New York Times Co. v. Sullivan, 376 U.S. 254 (1964),

which constitutionalized state libel law and required

public officials to prove that defamatory statements

were made with “actual malice.” Jd. at 279-80. The

defendant immediately brought New York Times to

the attention of the trial court, but the court denied a

motion for a new trial and the Court of Appeals

affirmed, holding that the defendant had waived the

defense by failing to raise it at trial. See id. at 138-39.

This Court granted certiorari and reversed. See

id. 143-44. The Court reasoned that the failure to

raise a defense at trial “prior to the announcement of

a decision which might support it cannot prevent a

litigant from later invoking such a ground.” Id. at

143. The Court emphasized that, at the time of trial,

“there was strong precedent indicating that civil libel

actions were immune from general constitutional

scrutiny,” and thus it was reasonable for a lawyer

trying a libel case to assert only state law defenses.”

Id. at 143-44. “We would not hold that [the defendant]

waived a ‘known right’ before it was aware of the New

York Times decision. It is agreed that [the defen-

dant’s] presentation of the constitutional issue after

our decision in New York Times was prompt.” Jd. at

145; accord Hormel, 312 U.S. at 558-60 (allowing the

government to raise new statutory argument on

appeal following intervening Supreme Court ruling;

any other holding “would defeat rather than promote

the ends of justice”); Rosenblatt, 383 U.S. at 87-88

(holding that plaintiff was entitled to retrial of lbel

suit tried before New York Times); Uebersee Finanz-

Korporation, 343 U.S. at 212-13 (permitting plaintiff

to raise new argument created by “novel holding” of

intervening Supreme Court decision).

The same is true here. If this Court decides the

first question presented in Carcieri in Rhode Island’s

favor, the decision will effect an intervening change in

law that MichGO could not have reasonably antici-

pated. MichGO cannot be said to have waived a

“known right or privilege” by failing to raise a futile

argument. See Curtis Publishing, 388 U.S. at 145 &

n.10 (noting that “it is almost certain that [the trial

judge] would have rebuffed any effort to interpose

constitutional defenses” before the New York Times

ruling); Youakim v. Miller, 425 U.S. 231, 235 (1976)

(permitting plaintiffs to raise a supremacy clause

argument for the first time on appeal when it would

have been futile to raise the issue below).

B. Applying Carcieri Here Works No Un-

fairness and Advances the Public In-

terest.

Allowing MichGO to raise the Carcieri issue will

not prejudice the Tribe or Federal Defendants.

MichGO promptly raised the issue in the Court of

Appeals as soon as this Court announced its grant of

certiorari in Carcieri. See Curtis Publishing, 388 U.S.

at 145. Moreover, there is no dispute regarding the

Tribe’s recognition status — both the Tribe and the

Federal Defendants concede that the Tribe was not

federally recognized in 1934.

As in Curtis Publishing, the lower courts here did

not have the benefit of whatever ruling this Court

might make in Carcieri. To hold that MichGO waived

the argument would “defeat rather than promote the

ends of justice,” Hormel, 312 U.S. at 559, because it

would result in the government taking land in trust

for the Tribe when the Tribe was not recognized in

1934 and is thus ineligible under the statute. It would

be incongruous for an issue of such magnitude not to

apply to this pending case simply because the issue

did not become apparent until after the District Court

issued its ruling. The Tribe should not be permitted to

escape the impact of Carcieri when that decision will

affect all other tribes with pending land-in-trust

applications or that apply for land under Section 5 in

the future, as Harper requires. 509 U.S. at 97.

Finally, allowing MichGO to raise Carcieri will

cause no inefficiency or delay. The case presents a

pure legal question and there is no factual dispute

about the Tribe’s recognition status. If the Court rules

in Rhode Island’s favor in Carcieri, the decision will

be dispositive here because it is undisputed that the

Tribe was not federally recognized in 1934.

In sum, MichGO respectfully requests that the

Court apply Carcieri here and summarily reverse and

remand to the D.C. Circuit. If necessary, MichGO

requests that the Court hold this petition in abeyance

until the Court has issued its ruling in Carcieri.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

REBECCA A. WOMELDORF JOHN J. BURSCH*

SPRIGGS & HOLLINGSWORTH DANIEL P. ETTINGER

1350 I Street, N.W., Suite 900 JOSEPH A. KUIPER

Washington, D.C. 20005 WARNER NORCROSS &

(202) 898-5800 JUDD LLP

900 Fifth Third Center

111 Lyon Street, N.W.

Grand Rapids, MI 49503

(616) 752-2000

Counsel for Petitioner

*Counsel of Record

OCTOBER 23, 2008

App. 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided April 29, 2008

No. 07-5092

Michigan Gambling Opposition,

A Michigan Non-profit Corporation,

Appellant

Dirk Kempthorne, In his official capacity as

Secretary of the United States

Department of the Interior, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01181)

John J. Bursch argued the cause for appellant.

With him on the briefs were Rebecca A. Womeldorf,

Daniel P. Ettinger, and Joseph A. Kuiper.

Aaron P. Avila, Attorney, U.S. Department of

Justice, argued the cause for federal appellees. With

him on the brief was Elizabeth A. Peterson, Attorney.

R. Craig Lawrence, Assistant U.S. Attorney, entered

an appearance.

App. 2

Nicholas C. Yost, Seth P) Waxman, Edward C.

DuMont, Demian S. Ahn, and Conly J. Schulte were

on the brief for appellee Match-E-Be-Nash-She-Wish

Band of Pottawatomi Indians.

Before: GINSBURG, ROGERS and Brown, Circuit

Judges.

Opinion for the Court filed PER CURIAM.

Opinion dissenting in part by Circuit Judge

BROWN.

PER CURIAM: In 2005, the Assistant Secretary

for Indian Affairs of the Bureau of Indian Affairs of

the Department of Interior decided to take 147 acres

of land in Wayland Township, Michigan, into trust for

use by the Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians (“the Tribe”), which plans to

construct and operate a Class III casino. This decision

followed federal recognition of the Tribe in 1998. A

non-profit Michigan membership organization —

Michigan Gambling Opposition (“MichGO”) — sued

the Secretary of the Interior, the Bureau of Indian

Affairs (“BIA”) and the National Indian Gaming

Commission (“NIGC”) (collectively the “DOI”) alleging

that the DOIs approval of the proposed casino violated

the National Environmental Protection Act (“NEPA”),

42 U.S.C. § 4321 et seq., and that section 5 of the

Indian Reorganization Act (“IRA”), 25 U.S.C. § 465,

was unconstitutional. The district court granted

summary judgment to the DOI, and MichGO appeals.

We hold that the DOI did not violate NEPA and that

App. 3

section 5 of the IRA is not an unconstitutional delega-

tion of legislative authority. Accordingly, we affirm.

The Match-E-Be-Nash-She-Wish Band of Pot-

tawatomi Indians has lived in Michigan continuously

since it emerged as a recognizable unit under Chief

Match-E-Be-Nash-She-Wish at the turn of the nine-

teenth century. At that time, the Tribe lived near

Kalamazoo, Michigan, along the Kalamazoo River.

The Tribe was party to several treaties with the

United States, and it was adversely affected by

several others, with the result that it lost all of its

lands near Kaiamazoo by the middle of the nine-

teenth century. It avoided being moved to reserva-

tions further west by taking asylum with a church

mission in central Michigan, near the town of Brad-

ley. Around the end of the nineteenth century, land in

the church mission was distributed to individual

members of the Tribe. This distribution was in accord,

although not directly part of, broader federal policies

of the time, which emphasized breaking up tribal

holdings and distributing parcels of land to individu-

als. See Judith V. Royster, The Legacy of Allotment,

27 Ariz. St. L.J. 1, 10-12 (1995). Most of the land

distributed to individual members of the Tribe was

lost because of failure to pay property taxes, as was

the case for large portions of the land distributed

under broader federal policies, id. at 12, but members

of the Tribe continued to reside around the former

church mission.

App. 4

The Tribe, now numbering 277 members, secured

federal acknowledgment of its existence in 1998,

under the BIA’s formal recognition procedure. The

Tribe and BIA plan for BIA to acquire land as a

reservation for the Tribe, using the Secretary of the

Interior’s authority under section 5 of the IRA to take

land into trust for Indians, 25 U.S.C. § 465. They

have identified a 147-acre tract of land (“the Bradley

property”) that they find suitable for this purpose.

The Bradley property is located in Wayland township

(population 3,013), a largely rural area about twenty-

five miles north of Kalamazoo and thirty miles south

of Grand Rapids. Seeking to advance the economic

well-being of its members, who suffer from unem-

ployment rates approximately six times the average

of their surrounding area, and to promote economic

self-sufficiency, the Tribe plans to use the Bradley

property to host a Class III gambling casino. The

planned facility would comprise approximately 99,000

square feet of gambling, with additional floor space

devoted to restaurants, stores, and offices. The Tribe

expects 8,500 visitors per day.

As BIA studied the Tribe’s proposal, it prepared an

environmental assessment (“EKA”) under the auspices of

NEPA, 42 U.S.C. § 4321 et seq. The EA analyzed the

effects the proposed casino would have on area wild-

life, air and water; farming in the vicinity; and

nearby communities. One of the issues addressed by

the EA was the possibility that the casino would

increase local] traffic. The EA used the U.S. Depart-

ment of Transportation (“DOT”) grading system to

App. 5

assess the severity of potential traffic delays: “Level

Of Service A” means free passage, while “Level of

Service F” means a driver can expect to wait eighty

seconds or more before passing through an unsig-

naled intersection. The EA defined acceptable traffic

delays to be “Level of Service C” or better. However,

because Michigan does not grade intersections, the

BIA concluded that approval by the Michigan De-

partment of Transportation (“MDOT”) would also

qualify an intersection’s traffic levels as acceptable.

Applying the DOT classification system, a study

commissioned as part of the EA identified two local

intersections where increased casino-related traffic

would result in Level of Service F at certain times.

These intersections sit at the junction of US-131, a

limited access highway that runs north and south

along the west edge of the Bradley property, and

Michigan-179 (129th Avenue), a two-lane road that

runs east and west along the south edge of the Brad-

ley property. The study predicted that the casino

would cause heavy traffic at the right turn from the

northbound exit onto 129th Avenue (eastbound) and

at the left turn from the southbound exit onto 129th

Avenue (eastbound). Resulting delays would be

particularly severe during afternoon rush hours.

To mitigate the traffic impact of the casino, the

EA recommended construction of a new, dedicated

right-turn lane for the northbound intersection and

adding a four-way stop to the southbound intersec-

tion. It acknowledged the southbound left turn would

still operate during peak periods at Level of Service F,

App. 6

so that a traffic light might be necessary. Although

MDOT apparently will not commit to a traffic light’

based on predictions of traffic volume, it apparently

would approve a dedicated right turn lane and a four-

way stop.’

Having concluded that proposed measures would

sufficiently alleviate traffic delays and that other

potential problems identified in the EA would also be

mitigated, the BIA and the NIGC both issued Find-

ings of No Significant Impact (“FONSI”) with respect

to the casino project and announced their intent to

acquire the Bradley property and allow the casino.

MichGO filed this lawsuit in June 2005, advanc-

ing four claims. The first alleged that the preparation

of a FONSI rather than an environmenta) impact

statement (“EIS”) violated NEPA. The second and

third alleged vioiations of the Indian Gaming Regula-

tory Act (“IGRA”). The fourth alleged that the IRA

is an unconstitutional delegation of authority to

the Secretary of the Interior because there is no

' The EA relicd on a September 25, 2001, letter from

MDOT, which approved the dedicated right-turn lane; this letter

did not expressly mention the four-way stop or any of the traffic

study’s conclusions. Letter from Robert Coy, Region Permit

Agent, MDOT, to Marc Start, URS Corporation (Sept. 25, 2001).

However, a letter from MDOT to the Tribe on February 12, 2002,

cited the completed traffic study and approved its recommenda-

tions, which included the four-way stop. Letter from Robert Coy,

Region Permit Agent, MDOT, to D.K. Sprague, Match-E-Be-

Nash-She-Wish Band of Pottawatomi Indians, Gun Lake Tribe

(Feb. 12, 2002).

App. 7

intelligible principle limiting its discretion on what

land to acquire and hold in trust. The Tribe was

allowed to intervene as a defendant. The district

court granted summary judgment to the DOI on

February 23, 2007. Mich. Gambling Opposition

(MichGO) v. Norton, 477 F. Supp. 2d 1, 22 (D.D.C.

2007). MichGO appeals and our review is de novo.

Sample v. Bureau of Prisons, 466 F.3d 1086, 1087

(D.C. Cir. 2006). However, in view of Citizens Expos-

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

(D.C. Cir. 2007), MichGO does not pursue its IGRA

claims. Appellant’s Reply Br. 2 n.1.

II.

NEPA requires every agency proposing a “major

Federal action” to prepare a statement of its envi-

ronmental impact if the action will “significantly

affect[ ] the quality of the human environment.” 42

U.S.C. § 4332(C). Under regulations promulgated by

the Council on Environmental Quality (“CEQ”) agen-

cies must create procedures identifying “[s]pecific

criteria for and identification of those typical classes

of action” that require or do not require an EIS. 40

C.F.R. § 1507.3(b)(2). In considering any particular

proposed action, an agency must first determine

whether, under its own regulations, the proposal

would “(njormally require| | an [EIS]” or “[nJormally

[would] not require either an [EIS] or an [EA].” dd.

§ 1501.4(a). If the proposed action is not covered by

either of these descriptions, the agency should pre-

pare an EA, and based on its conclusions, decide

App. 8

whether to prepare an EIS. Jd. §§ 1501.4(b)-(c). The

agency may conclude that an EIS is not necessary

and instead issue a FONSI, in which it must explain

why there will be no _ significant impact. Id.

§§ 1501.4(e); 1508.18.

MichGO contends that the Tribe’s casino is large

and controversial, and that the DOI is thus required

by law to prepare an EIS. To support this contention,

MichGO relies on the 2005 “Checklist for Gaming

Acquisitions,” distributed to regional directors by the

BIA, which provides that “[p]roposals for large, and/or

potentially controversial gaming establishments

should require the preparation of an EIS.” MichGO

maintains that 40 C.F.R. § 1501.4(a) requires an EIS

to be performed if mandated by internal DOI guide-

lines such as the Checklist.

The premise underlying MichGO’s contention is

flawed. Section 1501.4(a) does not make the Checklist

binding on the DOI. The CEQ does require each

agency to “[djetermine under its procedures” whether

a project is of a type that normally requires an EIS.

Id. § 1501.4(a). But it also specifies that these proce-

dures will be established pursuant to section 1507.3.

Id. Section 1507.3 sets out a specific process for

“ OFFICE OF INDIAN GAMING MGM?., DEP’T OF THE INTERIOR,

CHECKLIST FOR GAMING ACQUISITIONS GAMING-RELATED ACQUISITIONS

AND IGRA SECTION 20 DETERMINATIONS 10 (2005) (“Checklist”).

App. 9

developing the relevant agency procedures; as part of

this process, the CEQ must approve the procedures

before they are implemented. Jd. § 1507.3(a). The

DOI complied with these requirements when it

established its NEPA procedures, now codified in its

manual. DEP’T OF THE INTERIOR, DEPARTMENT MANUAL,

Pt. 516, Chpt. 10 (May 27, 2004). These procedures do

not encompass the Checklist, which in any event does

not appear to have been approved by the CEQ as

required by section 1507.3(a). The manual does,

however, include lists of activities that under its

precedures normally require or do not require an EIS

or EA. Jd. Gaming activities are not included in these

lists. In these circumstances, the section 1501.4(b)-(c)

process — EA preparation followed by a decision on

whether to prepare an EIS — is applicable. The DOT

followed these procedures and lawfully determined

not to prepare an EIS on the basis of the EA.”

Because we are unpersuaded that the Checklist

is binding on the DOI, we do not reach MichGO’s

contention that the casino project at issue is “large”

and “controversial” within the meaning of the Check-

list.

MichGO’s suggestion in its bref that the Checklist is

binding independent of 40 C.F-R. § 1501.4 is not appropriately

developed and thus not properly before the court. Schneider v

Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005). MichGO also

maintains that ignoring non-binding regulations is arbitrary

and capricious, but this contention is waived as it is raised only

in the reply brief. Corson & Gruman Co. v. NLRB, 899 F.2d 47,

50 n.4 (D.C. Cir. 1990).

App. 10

Alternatively, MichGO contends that it was

arbitrary or capricious for the DOI to issue a FONSI

without having prepared an EIS because two inter-

sections would continue to experience Level of Service

F at certain times, even after mitigation measures.*

A court reviews an agency’s FONSI or EIS under

the Administrative Procedure Act, 5 U.S.C. § 706, and

“cannot substitute [its] judgment for that of an

agency if the agency’s decision was ‘fully informed

and well considered.’” Cabinet Mountains Wilderness

v. Peterson, 685 F.2d 678, 684 (D.C. Cir. 1982) (quot-

ing Vt. Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 558 (1978)). If the agency decided to issue a

FONSI, it must either have concluded there would be

no significant impact or have planned measures to

mitigate such impacts. A court must review whether

the agency:

(1) has accurately identified the relevant en-

vironmental concern, (2) has taken a hard

look at the problem in preparing its EA, (3)

is able to make a convincing case for its find-

ing of no significant impact, and (4) has

* MichGO maintains in a footnote of its initial brief and in

its Reply Brief that increased traffic in the Village of Hopkins

will constitute a significant, unmitigated impact. We do not

censider this argument. “{|Ajbsent extraordinary circumstances

. we do not entertain an argument raised for the first time in

a reply brief... or a footnote.” United States v. Whren, 111

F.3d 956, 958 (D.C. Cir. 1997)

App. 11

shown that even if there is an impact of true

significance, an EIS is unnecessary because

changes or safeguards in the project suffi-

ciently reduce the impact to a minimum.

TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006)

(internal quotations omitted).

The EA found that at least one intersection

would experience Level of Service F at certain times

even after mitigation measures. However, contrary to

the assumption underlying MichGO’s contentions, the

EA’s definition of acceptable traffic performance was

not based solely on the level-of-service classification.

Rather, the EA noted that loca! authorities had no

standards for traffic intensity; thus the EA deployed

two separate indicators as proof of acceptable traffic

conditions: either Level of Service C or above or

approval by relevant local authorities. MDOT, the

agency with jurisdiction over these roads, found the

traffic levels projected after the DOI’s mitigation

measures would be acceptable. It was not inherently

arbitrary or capricious for the DOI to rely on MDOT’s

assessment, cf. Coliseum Square Ass’n v. Jackson,

465 F.3d 215, 237 (5th Cir. 2006), and MichGO gives

us no reason to question that reliance. The DOI was

thus justified in finding that mitigation of the traffic

impact was sufficient, and that an EIS was unneces-

sary.

App. 12

III.

Article I of the Constitution provides that “{aJll

legislative Powers herein granted shall be vested ina

Congress of the United States.” U.S. Const. art I, § 1.

In considering a challenge to a delegation of power,

“the test is whether Congress has set forth ‘an intelli-

gible principle to which the person or body authorized

to act is directed to conform.” TOMAC, 433 F.3d at

866 (quoting Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 472 (2001) (alterations and internal quota-

tions omitted)). The Supreme Court has underscored

that “the general policy and boundaries of a delega-

tion ‘need not be tested in isolation’... [as] the statu-

tory language may derive content from the ‘purpose of

the Act, its factual background and the statutory

context.’” Jd. (quoting Am. Power & Light Co. v. SEC,

329 U.S. 90, 104 (1946)). Courts “have almost never

felt qualified to second-guess Congress regarding the

permissible degree of policy judgment that can be left

to those executing or applying the law.” Whitman, 531

U.S. at 474-75 (internal quotations omitted).

MichGO contends that section 5 of the IRA is an

unconstitutional delegation of legislative power

because, apart from the DOI’s internal regulations,

which cannot fill the void, it is “completely devoid of

intelligible standards to guide or limit the Secretary’s

discretion.” Appellant’s Br. at 35. We are not con-

vinced. An agency cannot “cure an unconstitutionally

standardless delegation of power by declining to

exercise some of that power,” Whitman, 531 U.S. at

473, as the district court incorrectly suggested,

App. 13

MichGO, 477 F. Supp. 2d at 21-22. But giving due

consideration to the purpose and factual background

of the IRA and section 5’s statutory context, as the

Supreme Court instructs, see Am. Power & Light Co.,

829 U.S. at 104, and having due regard that “Con-

gress 1s not confined to that method of executing its

policy which involves the least possible delegation of

discretion,” Yakus v. United States, 321 U.S. 414, 425-

26 (1944), we conclude the statute provides an intelli-

gible principle.’

Section 5 of the IRA authorizes the Secretary of

the Interior to obtain land “for Indians.” 25 U.S.C.

* Hence the court has no occasion to address the Tribe’s

contention that the non-delegation doctrine is inapplicable

because section 5 of the IRA does not involve a delegation of

legislative power.

* Section 5 of the IRA provides in relevant part:

The Secretary of the Interior is authorized, in his dis-

cretion, to acquire, through purchase, relinquishment,

gift, exchange, or assignment, any interest in lands,

water rights, or surface rights to lands, within or

without existing reservations, including trust or oth-

erwise 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 expenses in-

cident to such acquisition, there is authorized 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. .. .

(Continued on following page)

App. 14

§ 465. This court has not previously considered

whether section 5 constitutes an unconstitutionally

standardless delegation of power. But on its face, the

delegation is no broader than other statutes, which

the Supreme Court has upheld, that direct agencies

to act in the “public interest,” Natl Broad. Co. v.

United States, 319 U.S. 190, 216 (1943), or in a way

that is “fair and equitable,” Yakus, 321 U.S. at 420,

see also Whitman, 531 U.S. at 473-75. Furthermore,

the courts of appeals for the First, Eighth and Tenth

Circuits have rejected challenges contending that

section 5 is an unconstitutional delegation. See Carci-

ert v. Norton, 497 F.3d 15, 41-43 (1st Cir. 2007) (en

banc), cert. granted in part, denied on non-delegation

issue, 128 S. Ct. 1443 (2008); South Dakota v. U.S.

Dep’t of Interior, 423 F.3d 790, 799 (8th Cir. 2005);

United States v. Roberts, 185 F.3d 1125, 1137 (10th

Cir. 1999). These courts have held “that an intelligi-

ble principle exists in the statutory phrase ‘for the

purpose of providing land for Indians’ when it is

viewed in the statutory and historical context of the

IRA.” This principle involves “providing lands suffi-

cient to enable Indians to achieve self-support and

ameliorating the damage resulting from ... prior

[federal policy].” South Dakota, 423 F.3d at 799

Title to any lands or rights acquired pursuant to this

Act ... shall be taken in the name of the United

States in trust for the Indian tribe .. . for which the

land is acquired, and such lands or rights shall be ex-

empt from State and local taxation.

25 U.S.C. § 465.

App. 15

(quoting 25 U.S.C. § 465); accord Carcieri, 497 F.3d at

42: Roberts, 185 F.3d at 1137.

Our review of the purpose and structure of the

IRA confirms that, as our sister courts have held, and

contrary to the view of our dissenting colleague, the

statute provides an intelligible principle rather than

a tautology when it authorizes the Secretary to

acquire land “for the purpose of providing land for

Indians”: the Secretary is to exercise his powers in

order to further economic development and self-

governance among the Tribes. Cf. Dissenting Op. at 7-

8. The Supreme Court has noted that “(tlhe intent

and purpose of the [IRA] was to rehabilitate the

Indian’s economic life and to give him a chance to

develop the initiative destroyed by a century of op-

pression.” Mescalero Apache Tribe v. Jones, 411 U.S.

145, 152 (1973) (internal quotations omitted). This

accords with the IRA’s stated purpose of “conserv[ing]

and developling] Indian lands and resources;

extend[ing]} to Indians the right to form business and

other organizations; ... establish{ing] a credit system

for Indians; ... grant[ing] certain rights of home rule

to Indians; ... and [effectuating! other purposes.”

Pub. L. No. 383, 48 Stat. 984, 984 (1934).

In addition to section 5, the IRA includes numer-

ous other provisions addressing land use and eco-

nomic development; among other things, these extend

tribal trusts indefinitely, 25 U.S.C. § 462; restore

lands previously declared “surplus” to these trusts,

id. § 463; restrict land transfers from tribal reserva-

tions, id. § 464; and provide federal appropriations to

App. 16

support Indian economic development, id. § 470. This

context underscores section 5’s role as part of a broad

effort to promote economic development among Ameri-

can Indians, with a special emphasis on preventing

and recouping losses of land caused by previous fed-

eral policies. The Supreme Court has acknowledged

this emphasis, explaining that the I[RA’s passage

brought “an abrupt end” to the previous federal

“policy of allotment” that had led to individuals who

were not American Indians acquiring “over two-thirds

of the Indian lands allotted.” County of Yakima v.

Confederated Tribes & Bands of Yakima Indian

Nation, 502 U.S. 251, 255 (1992). The Court also em-

phasized that through the IRA Congress “[rJeturn{ed] to

the principles of tribal self-determination and self-

governance which had characterized” earlier federal

policy. Id.

The standards revealed by examining the pur-

pose and structure of the IRA are confirmed by re-

viewing the broader factual context of the statute.

The IRA was enacted against a backdrop of great

concern over economic and social challenges facing

American Indians, and especially over the conse-

quences of the federal government’s allotment policy,

which had resulted in many tribal lands being dis-

tributed to individuals who then lost control of them,

often because of fraud or inability to pay taxes. Royster,

27 Ariz. St. L.J. at 12. By 1928, a report commis-

sioned by the Secretary of the Interior found that the

allotment policy had “destructive effects ... on the

economic, social, cultural and physical well-being of

App. 17

the tribes.” Jd. at 16. As both the Supreme Court,

Mescalero Apache Tribe, 411 U.S. at 152, and circuit

courts, South Dakota, 423 F.3d at 798; Carcieri, 497

F.3d at 42, have acknowledged, the legislative history

of the IRA also underscores its purpose of addressing

economic and social challenges facing American

Indians by promoting economic development. See

H.R. Rep. No. 73-1804, at 6 (1934); S. Rep. No. 73-

1080, at 1-2 (1934).’

There is nothing to suggest that section 5 is

removed from the overall IRA purpose of advancing

economic development among American Indians.

While certain sections of the IRA include more spe-

cific language than section 5, see, e.g., 25 U.S.C.

" The IRA's provisions constitute one chapter in a long and

complicated history of interactions between the United States

and American Indians. Our dissenting colleague asserts a trust

relationship arises between the Indians and the United States

only after the Government acquires land for the Indians,

Dissenting Op. at 6, but this confuses the fiduciary relationship

that arises because the United States is to hold newly-acquired

land “in trust” under section 5 of the IRA, see Cobell v. Norton,

240 F.3d 1081, 1088 (D.C. Cir. 2001); see also Untted States v.

Wilson, 881 F.2d 596, 600 (9th Cir. 1989), with the pre-existing

“special relationship” that arose by virtue of the Government’s

historical relations with the Indians, see 1 FELIX R. COHEN,

COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 5.04[4jlaj (2005)

(“HANDBOOK”). That unique history informs our understanding of

section 5 of the IRA; a statute authorizing the acquisition of land

“for the purpose of providing land for Indians” is simply not the

same as a Statute authorizing the acquisition of land “for the

purpose of providing land for persons taller than 6 feet.” See

generally Reid P. Chambers, Judicial Enforcement of the Federal

Trust Responsibility to Indians, 27 STAN. L. REv. 1213 (1975).

App. 18

§ 463, this does not detract from the overall purposes

of the statute. Although, as our dissenting colleague

suggests, particular clauses of the IRA could be

interpreted as not advancing the goal of economic

development, not alleviating all the problems caused

by the allotment policy, or advancing goals more

narrow than general economic development, Dissent-

ing Op. at 5-7, this analysis ignores the unambiguous

purpose of the [RA as a whole.

Finally, we note that the Supreme Court has

observed that “the degree of agency discretion that is

acceptable varies according to the scope of the power

congressionally conferred.” Whitman, 531 U.S. at 475.

The scope of authority delegated to the Secretary

under section 5 — to decide whether to grant status as

“Indian Country” to specific plots of land owned by

Indians or that is acquired for them — is not so broad

as to require limiting principles more specific than

pursuing Indian economic development. Our conclu-

sion is underscored by examining historical and

contemporary context. The Executive has historically

enjoyed extensive authority in conducting relations

with American Indians, which has included negotiat-

ing treaties with Indian tribes and granting reserva-

tions to them by executive order. See, e.g., HANDBOOK,

supra, §§ 1.03; 15.04[4]; ch Zemel v. Rusk, 381 U.S. 1,

17-18 (1965). “|E]ven in sweeping regulatory schemes

.. statutes [are not required to] provide a determi-

nate criterion” delimiting precisely how much of

a good or harm an agency must address. Whitman,

531 U.S. at 475 (internal quotations omitted). Our

App. 19

dissenting colleague asserts that the Secretary’s

powers under section 5 are vast, Dissenting Op. at

38-40, pointing to the many significant consequences

that flow from the Secretary’s decision to accept land

in trust for the Indians. But these consequences

follow from section 5 and from other statutes, not

from the decision of the Secretary to acquire land in

trust, for section 5 gives the Secretary no power to

regulate state taxing authority or anything else. Our

dissenting colleague further faults Congress for not

providing a narrower standard, but Congress must

provide only an “intelligible” standard, Whitman, 531

U.S. at 474-75. That standard need not be utterly

unambiguous, for it is settled that Congress may

delegate interstitial lawmaking authority to executive

agencies. See Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984).”

For these reasons, we join the First, Eighth and

Tenth Circuits, Carcieri, 497 F.3d at 43; South Da-

kota, 423 F.3d at. 799; Roberts, 185 F.3d at 1137, in

upholding section 5 of the IRA. In cases entertaining

(and rejecting) challenges asserting an unconstitu-

tional delegation, the Supreme Court has “givien]

" Nor are we concerned, for purposes of the non-delegation

doctrine, that the Secretary’s decision to take land in trust

might be unreviewable in a court of law. Dissenting Op. at 7-8

(citing State of Fla., Dept of Bus. Regulation v. U.S. Dep't of

Interior, 768 F.2d 1248 (11th Cir. 1985)). Section 5 of the TRA

intelligibly guides the Secretary’s exercise of discretion, and that

is all that the non-delegation doctrine requires. Yakus, 321 U.S.

at 425-26; 5 U.S.C. § 701.

App. 20

narrow constructions to statutory delegations that

might otherwise be thought to be unconstitutional,”

Mistretta v. United States, 488 U.S. 361, 373 n.7

(1989), and has done so by looking at clauses that

neighbor the delegation of power, e.g., Am. Power &

Light Co., 329 U.S. at 104-05, as well as the statute’s

overriding purpose, e.g., N.Y. Cent. Sec. Corp. v.

United States, 287 U.S. 12, 24-25 (1932). Congress

may legislate its goals explicitly, see, e.g., Mistretta,

488 U.S. at 374, but it need not do so. We thus hold,

relying upon the text, structure, and purpose of the

IRA, as well as the context of its enactment, that

section 5 contains an intelligible principle and that it

is not an unconstitutional delegation of legislative

authority.

Accordingly, we affirm the grant of summary

judgment.

Brown, Circuit Judge, dissenting in part: I join

Parts I and II of the court’s opinion, but I cannot

agree § 5 of the IRA is constitutional. Consequently, I

dissent from Part ITI.

Like other courts that have rejected nondelega-

tion challenges to § 5, Carcieri v. Kempthorne, 497

F.3d 15, 41-43 (1st Cir. 2007) (en banc); South Dakota

v. U.S. Dept of the Interior, 423 F.3d 790, 799 (8th Cir.

2005); United States v. Roberts, 185 F.3d 1125, 1137

App. 21

(10th Cir. 1999), the majority nominally performs a

nondelegation analysis but actually strips the doc-

trine of any meaning. It conjures standards and

limits from thin air to construct a supposed intelligi-

ble principle for the § 5 delegation. Although I agree

the nondelegation principle is extremely accommodat-

ing, the majority’s willingness to imagine bounds on

delegated authority goes so far as to render the

principle nugatory. Analyzing the statute using

ordinary tools of statutory construction, as the Su-

preme Court has always done in nondelegation cases,

I am forced to conclude § 5 is unconstitutional.

The nondelegation doctrine prohibits Congress

from making unbridled delegations of authority. The

rule is not only a fundamental aspect of the separa-

tion of powers; it is an essential feature of democratic

government. “[T]he delegation doctrine|} has devel-

oped to prevent Congress from forsaking its duties.”

Loving v. United States, 517 U.S. 748, 758 (1996).

“(Tlhe constitutional question is whether the statute

has delegated legislative power to the agency... [The

Constitution’s] text permits no delegation of those

powers.” Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 472 (2001); see also Mistretta v. United States,

488 U.S. 361, 371 (1989) (“The nondelegation doctrine

is rooted in the principle of separation of pow-

ers....”); J.W. Hampton, Jr, & Co. v. United States,

276 U.S. 394, 406 (1928) (“[I]t is a breach of the

National fundamental law if Congress gives up its

legislative power... .”). The nondelegation principle is

integral to any notion of democratic accountability.

App. 22

Thus, when Congress directs an agency to exer-

cise its judgment, it must guide that judgment in

some way. I agree with the majority that the nondele-

gation principle is not an onerous requirement.

Nevertheless, Congress must at least “clearly deline-

ate[ ] the general policy, the public agency which is to

apply it, and the boundaries of this delegated author-

ity.” Mistretta, 488 U.S. at 372-73; Am. Power & Light

Co. v. SEC, 329 U.S. 90, 105 (1946). The central

question is whether there are “limits on [an agency’s]

discretion.” Whitman, 531 U.S. at 473.

Like the majority, I take Whitman to have identi-

fied two ways in which Congress may provide the

necessary bounds on a delegation: standards to guide

an agency’s judgment or, in their absence, stringent

limits on the scope of the delegated authority. Stan-

dards to guide an agency are the ordinary way to

limit its discretion. In the leading case, A.L.A.

Schechter Poultry Corp. v. United States, the Su-

preme Court invalidated § 3 of the National Indus-

trial Recovery Act, which allowed trade associations

to develop codes of fair competition the President

could adopt as law, with conditions as he thought

“necessary.” 295 U.S. 495, 522-23, 542 (1935). This

statute was flawed because it “conferred authority to

regulate the entire economy on the basis of no more

precise a standard than stimulating the economy by

assuring ‘fair competition.” Whitman, 531 U.S. at

474. Alternatively, “Congress need not provide any

direction” if the “scope of the power congressionally

conferred” is sufficiently small. Jd. at 475. Either type

App. 23

of limit suffices on its own, but at least one must be

present.

Thus, the “intelligible principle” required of a

constitutional delegation is fairly minimal: a statute

will fail only if it gives an agency too broad an author-

ity with no standards to guide the agency’s decisions.

Section 5 is a rare example of a standardless delega-

tion, allowing the Secretary of the Interior to take

land in trust for whichever Indians he chooses, for

whatever reasons. This power is far too broad in

scope for Congress to have delegated without any

standards.

First, § 5 lacks standards to guide the Secretary

in the exercise of his authority. Such standards would

not have to provide a “determinate criterion” to

govern agency decisions, as long as they provide

“substantial guidance.” Whitman, 531 U.S. at 475.

Standards need only provide some criteria, some

guidelines, or some direction, so that when an agency

exercises its judgment, the agency and the courts

have some “intelligible principle” by which to gauge

whether the agency’s decision will further the pur-

pose of the delegation. For example, to guide the

Sentencing Commission, “Congress directed it to

consider seven factors,” listed in the statute. Mis-

tretta, 488 U.S. at 375. In Whitman, the Clean Air Act

required the EPA “to set air quality standards at the

App. 24

level that is ‘requisite’. . . to protect the public health

with an adequate margin of safety.” 531 U.S. at 475-

76.

“Whet!l er [a] statute delegates legislative power

is a question for the courts,” Whitman, 531 U.S. at

473, and the purpose of an intelligible principle is to

make sure it is not “impossible in a proper proceeding

to ascertain whether the will of Congress has been

obeyed.” Yakus v. United States, 321 U.S. 414, 426

(1944). Congress must provide legal standards be-

cause “[pJrivate rights are protected by access to the

courts to test the application of the policy in the light

of” the standards. Am. Power & Light Co., 329 USS.

at 105. Thus, since Congress must lay down these

standards by “legislative act,” Mistretta, 488 U.S. at

372, we should seek standards for a delegation using

the ordinary tools of statutory construction.

The kinds of tools the majority uses are occasion-

ally appropriate aids for ascertaining the meaning of

ambiguous statutory text. On the other hand, when a

standard is not ambiguous, but simply absent, we

may not supply one by ourselves. See Conn. Nat'l

Bank v. Germain, 503 U.S. 249, 254 (1992): Gen. Elec.

Co. v. EPA, 360 F.3d 188, 191 (D.C. Cir. 2004). The

majority not only supplies an absent standard, it

actually invents the standard, imbuing §5 with a

spirit of “economic development” that somehow

emanates from the context of the TRA.

In many nondelegation cases, Congress at least

hints at a standard by directing an agency to exercise

App. 25

its authority “in the public interest” — words indicat-

ing some congressionally imposed limit, even if the

vagueness of the phrase makes a court work to inter-

pret it. Here, by contrast, the Secretary “is author-

ized” to acquire land for Indians “in his discretion.”

Rather than an ambiguous standard that requires

interpretation, § 5 provides an obvious, unambiguous

direction that the Secretary is to have complete

discretion.

The majority proceeds, in the teeth of this clear

text, to find, in the emanation from a variety of

sources, the supposed true intelligible principle

behind § 5: promoting Indian economic development

so Indians can achieve “self-support,” and recouping

losses of land. But this standard arises from the

majority’s imagination, not from the sources.

First, the court cites the preamble to the IRA: “to

conserve and develop Indian land and resources.”

Maj. Op. at 13. A policy of developing land is no more

informative than a purpose of providing land, as a

standard to help the Secretary decide whether to

acquire a particular parcel. Nor do the preamble’s

policies of “extending the right to form businessles]

. establishing a credit system,”

any better direction.

and the rest, give

Second, the majority examines the structure of

the IRA. Maj. Op. at 13. Among its many provisions,

the IRA makes trust status permanent, §§ 2 and 4,

and provides for the recovery of Indian lands that had

been opened for sale, § 3. Ironically, the restoration of

App. 26

lands under § 3 is not automatic, but rests in the

Secretary's hands. Unlike § 5 acquisitions, the Secre-

tary is to restore surplus lands “if he shall find it to

be in the public interest.” Ordinarily, a comparison of

§ 3 and § 5 would lead us, first, to conclude § 5 gives

the Secretary authority to acquire new land, and,

second, to construe §5 to grant Secretary broader

discretion when he acquires new land than when he

restores surplus land. Instead the majority reads into

§5 an “emphasis” on recouping losses of land, an

emphasis the text does not support. The majority aiso

sees an emphasis on preventing losses of existing

land, even though § 8, which declares that the IRA

shall not cover “Indian holdings of allotments or

homesteads upon the public domain outside” of

reservations, actually limits the effect of the IRA on

existing Indian land. Nor is it plausible to find a

principle of “self-support” in a statute that actually

installs a paternalistic scheme of government sup-

port. See § 4 (barring Indians from selling or transfer-

ring their trust land); § 12 (directing the Secretary to

establish preferences for hiring Indians at the Indian

Office); § 11 (appropriating money to send Indians to

“vocational and trade schools” of which only a limited

amount may be spent for education in “high schools

and colleges”); § 6 (establishing the Secretary’s au-

thority over how Indians should manage their forests

and how many cows they may graze on their pas-

tures).

The majority also cites the special trust relation-

ship the United States bears towards Indians, waving

App. 27

the idea of this relationship as a talisman to bless the

statute rather than actually using it to interpret the

text. Nor could this trust relationship be useful to

interpret § 5, because in fact the government has no

free-standing duty, outside of specific statutes, trea-

ties, or executive orders, to ensure its actions do not

harm Indian interests. N. Slope Borough v. Andrus,

642 F.2d 589, 611 (D.C. Cir. 1980) (Secretary’s trust

obligations, if any, were coterminous with the ESA’s

requirements); see also United States v. Wilson, 881

F.2d 596, 600 (9th Cir. 1989) (“Absent ... a fiduciary

duty based on an authorizing document such as a

statute or a regulation ... there can be no trust

relationship between [a tribe] and the BIA.”). The

only trust responsibility created by § 5 exists after the

government acquires a parcel of land and therefore

cannot guide the Secretary’s decision whether to

acquire the parcel. The majority adverts to the

“unique history” of Indians in the United States, but

this history gives rise only to “a moral obligation,

without justiciable standards for its enforcement.”

Reid P. Chambers, Judicial Enforcement of the Fed-

eral Trust Responsibility to Indians, 27 STAN. L. REV.

1213, 1227 (1975). At best, courts distinguish statutes

relating to Indians by applying the Indian canon of

construction, County of Yakima v. Confederated Tribes

& Bands of Yakima Indian Nation, 502 U.S. 251, 269

(1992), but “[t]he canon of construction regarding the

resolution of ambiguities in favor of Indians, however,

does not permit reliance on ambiguities that do not

exist.” South Carolina v. Catawba Indian Tribe, Inc.,

476 U.S. 498, 506 (1986).

App. 28

To summarize, the statutory language lacks any

discernible boundaries. To rely on the purpose of

“providing land for Indians” does nothing to cabin the

Secretary’s discretion over providing land for Indians

because it is tautological. To say the purpose is to

provide land for Indians in a broad effort to promote

economic development (with a special emphasis on

preventing land loss) is tautology on steroids. Making

a different selection from the same smorgasbord, I

might posit quite different principles — to provide

land for landless Indians; to acquire trust lands to be

used for farming; to supplement grazing and forestry

lands; to provide lands in close proximity to existing

reservations; to consolidate checkerboarded reserva-

tions. All of these goals would be reasonable, but none

can be derived from the text of the IRA. The very fact

that so many standards can be proposed merely

highlights the fact that the statute itself fails to

describe how the power conveyed is to be exercised.

Thus, the Secretary’s assertion of unguided power is

not subject to any judicial check; nor, conversely, can

he be required to act whenever he voluntarily re-

frains from using his discretionary power.

Even if this mood of economic self-sufficiency can

be said to permeate § 5, it has never constituted a

standard to guide the Secretary’s decisions. Courts,

hike the BIA, have consistently interpreted the stat-

ute to mean what it says: the Secretary has unfet-

tered discretion over which land to take in trust. See,

e.g., State of Fla., Dep't of Bus. Regulation v. U.S.

Dept of the Interior, 768 F.2d 1248 (llth Cir. 1985)

App. 29

(Secretary may waive BIA regulations to acquire land

for a tribal museum, and the court may not review

his decision because it is committed to agency discre-

tion). Again and again, courts have rejected chal-

lenges to acquisitions as beyond the Secretary’s

power, concluding that the “deliberately broad and

flexible grant of power” in § 5, Stevens v. Comm’r of

Internal Revenue, 452 F.2d 741, 748 (9th Cir. 1971),

encompasses any possible acquisition. E.g., Chase v.

McMasters, 573 F.2d 1011, 1015-16 (8th Cir. 1978)

(“Congress did not limit the Secretary’s discretion to

select land for acquisition”; therefore, it was valid to

accept land an Indian already owned and was giving

to the United States in trust solely for the purpose of

avoiding property taxes). The BIA has also regarded

the Secretary’s discretion as absolute, and its review

board may only verify whether BIA considered the

factors laid out in its own regulations. Eades, 17

I.B.1.A. 198, 200 (1989). Most recently, BIA has begun

to deny trust applications for building casinos if it

finds the casinos to lie beyond a “commutable” dis-

tance from tribes’ existing reservations. See Memo-

randum from Car] Artman, Ass’t Sec’y of the Interior,

on Taking Off-Reservation Land into Trust for Gam-

ing Purposes 1, 3 (Jan. 3, 2008) (“The decision

whether to take land into trust ... is discretionary

with the Secretary.”).'

' BIA denies these applications because for far-away

applications, the benefit to Indians doves not outweigh the

“concerns of state and local governments.” /d. at 5 (citing 25

(Continued on following page)

App. 30

In light of this history, it is a bit late for the court

to claim there is in fact a standard, however loose, to

which the Secretary must conform in his exercise of

§ 5 authority. Nor, given the weight of precedent,

would I expect any court to apply the majority’s

“economic development with special emphasis” stan-

dard in reviewing an acquisition decision.

My point here is not to quibble with the major-

ity’s conclusion that the purpose of § 5 is to enable

self-support rather than dependency or to prevent

losses rather than acquire new land. Rather, the

court should not be playing this game at all. Indeed,

the court’s approach differs radically from the Su-

preme Court’s analytical process in nondelegation

challenges. For example, in the Intermountain Rate

Cases, the Court, recognizing that “we must be gov-

erned by the statute and its plain meaning,” inter-

preted a challenged section to incorporate a

prohibition on “undue preference and discrimination”

from the text of a neighboring section. 234 U.S. 476,

485-86, 488 (1914). In American Power & Light Co.,

the Court relied on a statute’s specific standards for

new security issues that constituted “a veritable code

of rules” to inform the SEC’s discretion to ban “un-

duly or unnecessarily complicate[d]” corporate struc-

tures. 329 U.S. at 105. I could continue with

C.F.R. § 151.11(b)). If the majority is right about the principle

guiding these decisions, it cannot be proper for BIA to deny an

acquisition because of the harm to local government caused by

“the removal of the land from the tax rolls,” rd.

App. 31

examples, but they all illustrate the same point: even

in a nondelegation challenge, a court must find

meaning for an ambiguous phrase in some relevant

text. Here, by contrast, the majority perceives a mood

of economic development, which Congress did not

articulate, and the majority justifies this mood by its

own assessment of Congress’s good intentions.

In short, this court, like the First, Eighth, and

Tenth Circuits before it, has constructed an intelligi-

ble principle for § 5 that consists simply of knowing

why Congress enacted the provision. I do not deny

that Congress wanted to alleviate the problems faced

by Native Americans. Nevertheless, this alleged

intelligible principle is relevant only for nondelega-

tion challenges. The fact that the Supreme Court has

also acknowledged the motivation for the IRA, Maj.

Op. at 13-14, does not make that motivation any more

meaningful as a standard to guide the Secretary’s

decisions on trust acquisitions. If it were meaningful,

it would be contrary to the plain text of §5, which

gives the Secretary unfettered discretion over such

decisions.

* Amusingly, Mescalero Apache Tribe v. Jones, in perhaps

ill-considered dicta, recited the same legislative history as the

majority on its way to limiting the tax immunities enjoyed by

Indians. 411 U.S. 145, 152-59 (1973).

App. 32

Given the absence of standards to govern the

Secretary's exercise of his § 5 authority, 1 conclude the

authority is too broad to be valid. Unquestionably, a

standardless delegation is valid if it is smail; “the

degree of agency discretion that is acceptable varies

according to the scope of the power congressionally

conferred.” Whitman, 531 U.S. at 475. While the

majority recognizes that scope matters, it fails to

acknowledge that under established nondelegation

doctrine, a standardless delegation must be quite

narrow. Whitman provided the canonical example of a

sufficiently small delegation: EPA can “define ‘coun-

try elevators, which are to be exempt from new-

stationary-source regulations governing grain eleva-

tors.” Id.; see 42 U.S.C. § 7411(i) (“Any regulations

promulgated by the Administrator under this section

applicable to grain elevators shall not apply to coun-

try elevators (as defined by the Administrator) which

have a storage capacity of less than two million five

hundred thousand bushels.”).

By contrast, the §5 power is quite broad. The

majority blandly characterizes it as the power to

grant status as Indian country, but the majority

ignores the far-reaching consequences of that status.”

The majority also regards the power to hold land in trust

as having aspects of Executive authority, apparently akin to the

foreign relations powers that mitigated a delegation in Zemel v.

Rusk, 381 U.S. 1, 17-18 (1965). Maj. Op. at 14-15. Regardless of

the Executive’s role in concluding treaties with Indians, “the

(Continued on following page)

App. 33

By taking land in trust for Indians, the Secretary

removes it from the jurisdiction of the State in which

it sits and places it under the authority of a tribe.

Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S.

520, 529-31 (1998) (noting federal land held in trust

for Indians is Indian country (citing United Stctes v.

McGowan, 302 U.S. 535 (1938)). Thus, the trust

acquisition authority is a power to determine who

writes the law, and thus indirectly what the law will

be, for particular plots of land.

The consequences of the Indian country designa-

tion are profound. Most obviously, Indian country and

its beneficial owners are “exempt from State and local

taxation.” 25 U.S.C. § 465 para. 4. Indeed, tribal

residents of Indian country are even exempt from

motor vehicle and state income taxes. Okla. Tax

Comm’n v. Sac & Fox Nation, 508 U.S. 114, 127-28

(1993); McClanahan v. Ariz. State Tax Comm’n, 411

U.S. 164, 165 (1973). More generally, Indian country

is subject to federal and tribal jurisdiction in both

civil and criminal matters. Native Vill. of Venetie, 522

U.S. at 527 & n.1 (civil); DeCoteau v. Dist. County

Court for the Tenth Judicial Dist., 420 U.S. 425, 428

n.2 (1975) (civil); see United States v. John, 437 U.S.

634, 649, 654 (1978) (reversing state conviction for a

Constitution places the authority to dispose of public lands

exclusively in Congress,” and that includes the power to hold

lands in trust. Sioux Tribe of Indians v. United States, 316 U.S

317, 326 (1942); see also U.S. Const. art. IV, § 3 cl. 2 (Property

Clause).

—

App. 34

crime committed on trust land). A state “presump-

tively lacks jurisdiction to enforce” its regulations in

Indian country. Narragansett Indian Tribe v. Narra-

gansett Elec. Co., 89 F.3d 908, 915 (lst Cir. 1996). A

tribal sovereign ousts a state, unless Congress ex-

pressly provides otherwise. California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 207 (1987).°

These consequences result not from other statutes, as

the majority claims, Maj. Op. at 15-16, but from the

“attributes of sovereignty” that “Indian tribes retain.”

Id. at 207: see also Okla. Tax Comm’n, 508 U.S. at

128, Surely we need not avert our gaze from the

constitutional backdrop against which Congress

legislates.

Thus, § 5 allows the Secretary, by taking land in

trust for Indians, to oust state jurisdiction in favor of

government by the beneficiaries he chooses. Although

there are certain limits on the scope of this power,

such as the restriction that land may only be held “for

Indians,” they are not nearly narrow enough to

validate a standardless delegation. By comparison to

the EPA’s authority to define country elevators, the

§5 power is astoundingly broad. While the EPA

was allowed to exempt certain pollution sources,

* The Gun Lake Band casino project nicely illustrates how

substantially a change to Indian country status can affect both

Indians and non-Indians in the vicinity of trust land. Local

governments stand to lose $85,000 per year in direct property

taxes, while the extra traffic and other activity connected to the

casino will force local police to hire additional staff at a cost of

over $400,000 per year.

App. 35

circumscribed by size, from pollution regulations the

EPA itself had imposed under a specific provision, 42

U.S.C. § 7411, here the Secretary can completely

remove areas of land from the jurisdiction of state

and local governments. Although this power may not

need the “substantial guidance” the Supreme Court

thought necessary for the EPA's broad authority to set

air-quality standards, Whitman, 531 U.S. at 476, the

power it confers is far too broad to survive without

any guidance at all.

Section 5 gives the Secretary unguided authority

to transfer areas of land from the jurisdiction of state

and local government to that of various bands of

Indians. None of the foregoing implies BIA has exer-

cised its authority wantonly. But the question is not

what it has done, but what it has authority to do. The

authority was Congress’s to give and the boundaries

were for Congress to provide as well. Since it has

failed to do so, | am forced to conclude § 5 of the IRA

is an unconstitutional delegation.

App. 36

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MICHIGAN GAMBLING

OPPOSITION (“MichGO”),

a Michigan non-profit

corporation,

Plaintiff,

Vv.

)

GALE NORTON, inher

official Capacity as )

SECRETARY OF THE —?_ Civil Action No.

UNITED STATES ) 05-01181 (IGP)

DEPARTMENT OF THE ?) __

INTERIOR, ct. al. ) (Filed Feb. 23, 2007)

)

Defendants.

MATCH-E-BE-NASH-SHE-

WISH BAND OF POT-

TAWATOMI INDIANS,

a federally-recognized

Indian Tribe,

intervenor.

OPINION

This comes before the Court on the United

States Motion to Dismiss or in the Alternative

for Summary Judgment [#33] (“Def.’s Mot.”), and

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

tawatomi Indians’ Motion for Judgment on the

App. 37

Pleadings or, in the Alternative for Summary

Judgment [#32] (“Intv.’s Mot.”).’

Defendants argue, among other things, that

there are no genuine issues of material fact in dispute

which merit this case proceeding to trial. Def.’s

Memo, at 1. For nearly identical reasons, intervenor

also argues for dismissal of the Complaint. Intv.’s

Mot., at 2.

Plaintiff opposes the dispositive Motions on the

following grounds: “First,” according to plaintiff,

defendants’ classification of the proposed casino site

as an “initial reservation” is inconsistent with the

requirements imposed by the Indian Gaming Regula-

tory Act (““IGRA”), 25 U.S.C. §§ 2701 et seq. Pl.’s Opp.,

at 1. “Second,” plaintiff argues that defendants have

violated the National Environmental Policy Act

(“NEPA”), 42 U.S.C. §§ 4321 et seq. by failing to issue

an environmental impact statement (“EIS”), and

When citing the Statement of Points and Authorities in

Support of the United States’ Motion to Dismiss or in the

Alternative for Summary Judgment, the Court will use the

abbreviation “Def.’s Memo.” The Court will use the abbreviation

“Intv.’s Memo” when citing the Statement of Points and Authori-

tics in Support of the Intervenor’s Motion for Judgment on the

Pleadings or, in the Alternative, for Summary Judgment

* Plaintiff opposes both dispositive Motions within the same

pleading. See generally Michgo’s Combined Statement of Points

and Authorities in Opposition to Federal] Defendants’ and the

Gun Lake Band’s Motions to Dismiss or in the Alternative for

Summary Judgment [#50] (“Pl.’s Opp.”). Accordingly, the Court

addresses both dispositive Motions within this Opinion

App. 38

instead issuing a finding of no significant impact

(“FONSI”). Jd. “Third,” plaintiff argues that defen-

dants cannot legally authorize Class II] gaming

because they have not yet secured a tribal-state

gaming compact. /d. at 2. And fourth, plaintiff argues

that “Defendants have no constitutionally valid

authority on which to acquire land in trust for {inter-

venor].” Id.

Having considered the dispositive Motions,

plaintiff’s Opposition, the Replies thereto, and the

entire record, the Court concludes that plaintiff has

raised no genuine issues of material fact and defen-

dants and intervenor are entitled to judgment as a

matter of law. A full explanation of the Court’s con-

clusions follows.

BACKGROUND

This dispute arises from defendants’ decision to

place two parcels of land (“Bradley Property”) into

' The Bradley Property, according to intervenor,

is nearly 200,000 square feet, [and] ... the precise

footage of the existing warehouse and factory building

that will be converted to the proposed gaming complex

is 193,424 square feet. . . . [T}he facility includes gam-

ng space, two casual dining restaurants, a buffet-

style restaurant, two fast food outlets, some retail

space, a sports bar, an entertainment lounge, office

space, and parking space... . |T}he specific size of the

/ gaming area is 98,879 square feet, and the actual

number of parking spaces will total 3,352, including

17 spaces for buses and 26 for Recreational Vehicles.

Continued on following page

App. 39

trust for intervenor which intervenor contends is vital

to its economic development, self determination and

economic sufficiency. Motion to Intervene [#7] (“Mot.

to Intv.”), at 2; Def.’s Memo, at 1. Intervenor expects

that the Bradley Property, which is located “approxi-

mately 25 miles from Kalamazoo and approximately

30 miles from the City of Grand Rapids” in Wayland

Township, Michigan, will bring a large number of jobs

and income to its approximately 300 members if

converted into a casino.” Intv.’s Answer, at ] 69.

Moreover, intervenor expects that the Bradley Prop-

erty will “attract an average of approximately 8,500

visitors per day, and that approximately 1,800 people

will be employed at the facility.” Jd. at 4 60.

On August 23, 1999, intervenor, descendants of

an Indian tribe who lived in a village near the present-

day City of Kalamazoo, Michigan in the late 1700's,

gained official recognition from defendants, the U.S.

government.’ 63 Fed. Reg. 56936 (“Final Determination

Answer of Intervenor Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians [#19} (“Intv.’s Answer”), at 4 27 (internal

quotation marks omitted); see also Complaint, at J 27.

* Defendants assert that the “tribe resides in an area that

_ . [suffers] six times the unemployment rate of the rest of the

area.” Oral Argument Transcript (“Tr. Oral Arg.”), at 21.

* Collectively, detendants are the Secretary of the Interior,

the Bureau of Indian Affairs (“BLA”), and the National Indian

Caming Commission (“NIGC”). The BIA is an administrative

agency which falls under the authority of the Secretary of the

Interior. Lincoln v. Vigil, 508 U.S. 182, 185, 113 Sect. 2024

(.993). The NIGC, an agency “charged with the deveiopment of

r-gulations and administrative enforcement of IGRA!,|” United

(Continued on following page)

App. 40

to Acknowledge the Match-e-be-nash-she-wish Band

of Pottawatomi Indians of Michigan”). Intervenor

submitted an application to defendants for a proposed

casino on August 7, 2001, seeking to have defendants

take into trust the 147-acre Bradley Property. Com-

plaint, at ¥ 6; Pl.’s Opp., at 2. Defendants prepared

and issued a FONSI on February 27, 2004, based on

an Environmental Assessment (“EA”) that defendants

published in December 2003. Intv.’s Answer, at {{ 3,

52; Complaint, at ¢ 3. Publication of the EA was

preceded by a seventy-five day public comment pe-

riod. Intv.s Memo, at 6. Defendants then issued a

notice of their intent to take the Bradley Property

into trust on May 13, 2005. Pl.’s Opp., at 4.

On June 13, 2005, plaintiff, a Michigan non-

profit corporation that opposes the proliferation of

gambling venues, filed the Complaint alleging that

defendants have violated IGRA, NEPA and the Con-

stitution’s non-delegation doctrine. Complaint, at

States v. Seminole Natton of Okla., 321 F.3d 939, 941 (10th Cir.

2002) (citing 25 U.S.C. §§ 2705, 2706), was also instrumental in

helping shape many of the administrative findings in this case.

E.g., Intv.’s Answer, at { 27 (“The Tribe admits that the NIGC

has concluded that gaming will be permitted on the land once it

is taken into trust as the Tribe’s initial reservation under

IGRA.”). Under the law, federal recognition means that a “tribe

shall be considered a historic tribe and shall be entitled to the

privileges and immunities available to other federally-

recognized historic tribes by virtue of their government-to-

government relationship with the United States.” 25 C.F.R.

§ 83.12(a).

App. 41

qq 1, 4, 12. The Court heard oral argument on the

dispositive Motions on November 29, 2006.

STANDARD OF REVIEW

[. Motion to Dismiss

Dismissal is appropriate when considering a

motion to dismiss only when the moving party has

established that the non-moving party can prove no

facts in support of its claims which entitles it to relief.

Bell v. Exec. Comm. of the United Food & Commer.

Workers Pension Plan for Emples., 191 F. Supp. 2d 10,

15 (D.D.C. 2002) (citing In re Swine Flu Immuniza-

tion Products Liability Litigation, 279 U.S. App. D.C.

366, 880 F.2d 1439, 1442 (D.C. Cir. 1989)) Gin turn

citing Fed. R. Civ. P. 12(b)(6)). Generally, a complaint

need only contain “a short and plain statement that

[provides] the defendant fair notice of what the

plaintiff’s claim is and the grounds upon which it

rests.” Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

346, 125 S. Ct. 1627 (2005) (citation omitted). “(T]he

allegations of the complaint should be construed

favorably to the pleader.” Aerovias de Mex., S.A. de

C.V. v. Natl Mediation Bd., 211 F. Supp. 2d 1 (D.D.C.

2002). That is, a plaintiff’s allegations of fact must be

accepted by the Court as true and all reasonable

inferences should be construed in the plaintiff’s

favor. Marshall County Health Care Auth. v. Shalala,

300 U.S. App. D.C. 263, 988 F.2d 1221, 1225 (D.C. Cir.

1993). “If the court considers matters outside the

pleadings before it in a 12(b)(6) motion, the above

App. 42

procedure will automatically be converted into a Rule

56 summary judgment procedure.” Mortensen v. First

Federal Sav. & Loan Asso., 549 F.2d 884, 891 (3d Cir.

1977) (citing 5 C. Wright and A. Miller, Federal

Practice and Procedure § 1350 (1969)). A court “will

not accept unsupported conclusions, unwarranted

inferences, or sweeping legal conclusions cast in the

form of factual allegation” when addressing a motion

to dismiss for failure to state a claim. Kelley v. Edison

Twp., 2006 U.S. Dist. LEXIS 23510, at *15 (D.N_J.

April 25, 2006) (citation omitted).

il. Motion for Judgment on the Pleadings

A motion for judgment on the pleadings is virtu-

ally identical to a motion to dismiss for failure to

state a claim. Cleveland v. Caplaw Enters., 448 F.3d

518, 521 (2d Cir. 2006) (citation omitted). Under this

legal standard as well, “the court must accep: as true

the complaint’s factual allegations and draw all

inferences in the plaintiff’s favor.” Jd. (quoting Kare-

des v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir.

2005) (other citations and internal quotation marks

omitted)). “A complaint should not be dismissed on

the pleadings unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” /d. (citations

omitted).

App. 43

Ill. Motion for Summary Judgment

A court should grant a motion for summary

judgment only when it determines that “reasonable

jurors could [not] find by a preponderance of the

evidence that the plaintiff is entitled to a verdict[.]”

Griffin v. Acacia Life Ins. Co., 151 F. Supp. 2d 78, 79-

80 (D.D.C. 2001) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986)). A

court should dismiss the case under this standard

“when evidence on file shows that there is no genuine

issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” /d.

(citations and internal quotation marks omitted).

[A] genuine dispute about material facts ex-

ists if the evidence is such that a reasonable

jury could return a verdict for the nonmoving

party. If the evidence is merely colorable, or

is not significantly probative, summary

judgment may be granted.

While a nonmovant is not required to

produce evidence in a form that would be

admissible at trial, the evidence still must be

capable of being converted into admissible

evidence. Otherwise, the objective of sum-

mary judgment — to prevent unnecessary tri-

als — would be undermined.

Id. at 80 (internal citations, alterations and quotation

marks omitted) (emphésis added). As with the preced-

ing motions, “[w]Jhen ruling on a motion for summary

judgment, [ ] Court{s] must view the evidence in the

light most favorable to the non-moving party.” Worth

App. 44

v. Jackson, 377 F. Supp. 2d 177, 180-81 (D.D.C. 2005)

(citing Bayer v. United States Dep't of Treasury, 294

U.S. App. D.C. 44, 95€ F.2d 330, 333 (D.C. Cir. 1992)).

Notwithstanding, “the non-moving party cannot rely

on mere allegations or denials ... , but ... must set

forth specific facts showing that there [are] genuine

issues for triai.” Jd. (citation and internal quotation

marks omitted) (alterations in original).

ANALYSIS

I. Classification of the Bradley Property as

“Initial Reservation”

The Court first addresses plaintiff’s claim that

defendants’ classification of the Bradley Property as

an “initial reservation” violates the statutory limita-

tions imposed by IGRA on Indian tribes engaged in

gaming activities. Complaint, at 4 6. Defendants and

intervenor argue that plaintiff has misread IGRA.

Intv.’s Memo, at 45; Def.’s Memo, at 40.

“Congress’ central purpose in enacting IGRA was

to provide a statutory basis for the operation of

gaming by Indian tribes as a means of promoting

tribal economic development, self-sufficiency, and

strong tribal governments.” Chickasaw Nation ov.

United States, 534 U.S. 84, 99, 122 S. Ct. 528 (2001)

{citation and internal quotation marks omitted).

Under the judicial review section of the statute, final

administrative decisions are to be appealed to federal

district courts pursuant to the Administrative Proce-

dure Act. United States ex rel. St. Regis Mohawk Tribe

App. 45

v. President R.C.-St. Regis Mgmt. Co., 451 F.3d 44, 48

(2d Cir. 2006). Section 20 of IGRA states that “gaming

is not permitted on Indian land taken into trust by

the Secretary after IGRA’s effective date, October 17,

1988, unless},]” inter alia, the “land [is] taken into

trust as part of... the initial reservation of an Indian

tribe acknowledged by the Secretary[.]”° City of

Roseville v. Norton, 358 U.S. App. D.C. 282, 348 F.3d

1020, 1024 (D.C. Cir. 2003) (citing 25 U.S.C.

§ 2719(b)(1)(B)Gi) (internal quotation marks omitted)

(emphasis added)).

Here, plaintiff reads the term “reservation” as

provided within § 20 of IGRA to “refer[] to land set

aside under federal protection for the residence of

tribal Indians, regardless of origin.’” Pl.’s Opp., at 10

(quoting Felix S. Cohen, Federal Indian Law 34 (1982

ed.) (emphasis in original)). Plaintiff argues that this

is the only logical interpretation since the term

“reservation” is not defined in IGRA. Id. at 9. Princi-

pally, plaintiff relies on Sac and Fox Nation of Mis-

sourt uv. Norton, 240 F.3d 1250 (10th Cir. 2001) in

* Plaintiff asserts that a two-step process must be under-

taken before intervenor can engage in gaming on the Bradley

Property. Pl.’s Opp., at 10 (“Where none of these exceptions is

available, gambling is permitted on offreservation sites only by

way of a two-step approyal process in which DOI and the State’s

governor concur that the casino ‘would not be detrimental to the

surrounding community.’” (quoting 25 U.S.C. § 2719(b)(1)(A)

(emphasis in original)). Notwithstanding, because the Court

concludes that the Bradley Property meets the “initial reserva-

tion” exception under § 20 of IGRA, the two-step process is not

triggered in this case. See 25 U.S.C. § 2719(b\1)(B)(ii).

App. 46

support of its position, which concluded that (1) the

Secretary of the Interior lacked authority to interpret

the term “reservation,” and therefore (2) the court

owed “no deference” — typically referred to as Chevron

deference — to the Secretary’s interpretation. 240 F.3d

1250, 1265 (10th Cir. 2001) (referencing Chevron,

U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844, 104

S.Ct. 2778 (1984)). The Sac and Fox court then

concluded that the interpretation that a “reservation”

must include housing to be legally defined as such

was “the one Congress intended to adopt when it

enacted IGRA.” /d. at 1267 n.19 (emphasis added).

Were this Court to instead accept defendants’

position that land may qualify as a “reservation”

without including housing, plaintiff argues that the

Bradley Property cannot be intervenor’s “initial”

reservation because intervenor had at least one

federally recognized reservation in the past. Pl.’s

Opp., at 2526 (citing AR 1986; AR 2033).’

A. Whether Land Used for Gaming must

Aliso Be Used for Housing

It is indeed settled law that Congress did not

define the term “reservation” within IGRA. Arizona

Pub. Serv. Co. v. EPA, 341 U.S. App. D.C. 222, 211

F.3d 1280, 1293 (D.C. Cir. 2000). Despite this fact,

“almost immediately” following the ruling in Sac and

‘ The abbreviation “AR” is used when citing to the adminis-

trative record.

App. 47

Fox, “Congress rebuked the decision ... , enacting

legislation stating that the authority to determine

whether land is a ‘reservation’ was delegated to the

Secretary as of the effective date of IGRA.” City of

Roseville, 348 F.3d at 1029 (citing Pub. L. No. 107-63,

§ 134 (2001) (emphasis added)).° Pursuant to the

holding in City of Roseville, and in light of § 134,

which Congress did not limit to the “restored lands”

exception within § 20 of IGRA, the Secretary’s inter-

pretation of the term “reservation” is owed Chevron

deference.

The court in Citizens Exposing Truth About

Casinos v. Norton, 2004 U.S. Dist. LEXIS 27498

(D.D.C. April 23, 2004) (““CETAC”) reached a similar

conclusion, explaining that

there appears to be no statutory or regula-

tory requirement that land must contain

housing in order for the Secretary to pro-

claim it a reservation under the IRA and for

it to qualify as an initial reservation under

IGRA. When taking property into trust, the

Secretary acts pursuant to the IRA, not...

the IGRA, and regulations promulgated un-

der the IRA define a reservation as “that

area of land over which the tribe is recog-

nized by the United States as having gov-

ernmental jurisdiction.” 25 C.F.R. § 151.2(f).

> The holding in City of Roseville addresses the “restored

lands” exception within § 20. Here, the Court addresses the

“initial reservation” exception.

App. 48

It is altogether reasonable, therefore, for the

Secretary to adopt the definition of reserva-

tion contained in the regulations promul-

gated pursuant to the statute under which

she acts. The Court concludes that the Secre-

tary has authority to interpret the phrase

“inttial reservation” as she has done.

2004 U.S. Dist. LEXIS 27498, at *15 (D.D.C. April 23,

2004) (internal citation omitted) (emphasis added).”

As in CETAC, this Court concludes that because

there has been a congressional delegation of authority

to the administrative agency to interpret § 20 of

IGRA, and defendants’ interpretation of the term

“reservation” is not demonstrably arbitrary, capri-

cious, or contrary to the statute’, the Court “must

* The purpose of the Indian Reorganization Act (“IRA”), 25

U.S.C. § 461 et seq. is “to rehabilitate the Indian’s economic life

and to give him a chance to develop the initiative destroyed by a

century of oppression and paternalism.” Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267 (1973) (quoting

H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)).

The arbitrary and capricious standard has been defined

this way:

An agency's rule would be arbitrary and capricious if

the agency relied on factors that Congress has not in-

tended it to consider, cntirely failed to consider an im-

portant aspect of the problem, offered an explanation

for its decision that runs counter to the evidence be-

fore the agency, or is so implausible that it could not

be ascribed to a difference in view or the product of

agency expertise. [| Although our inquiry into the

facts is to be searching and careful, this court ts not

empowered to substitute its judgment for that of the

agency.{ ]

(Continued on following page)

App. 49

accept” the agency’s interpretation that the term

“reservation” does not include a housing requirement.

See Sac and Fox, 240 F.3d at 1261. Also, the Indian

Canon of statutory construction supports the Court’s

conclusion, pursuant to which “[t]he Supreme Court

has on numerous occasions noted that ambiguities tn

federal statutes are to be read liberally in favor of the

Indians....” City of Roseville, 348 F.3d at 1032

(citing County of Yakima v. Confederated Tribes &

Bands of Yakima Indian Nation, 502 U.S. 251, 269,

112 S. Ct. 683 (1992) (other citation omitted) (empha-

sis added))." Plaintiff’s argument therefore fails.

B. Whether the Bradley Property Is an

“Initial Reservation”

Plaintiff alternatively argues that the Bradley

Property is not an “initial” reservation because inter-

venor had at least one reservation in the past. PIl.’s

Opp., at 2526. Plaintiff further expounded upon its

position at oral argument:

Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283,

287-88 (4th Cir. 1999) (internal citations omitted) (emphasis

added).

" Cf. Arizona Pub. Serv. Co., 211 F.3d at 1293 (“[T]he term

‘reservation’ has no rigid meaning as suggested by petition-

ers.... The [] varying definitions of ‘reservation’ lay to waste

petitioners’ argument... . (G]iven the varying definitions of the

term ... , it would be a curious result indeed for this court to

insist that the absence of a definition requires [the agency] to

advance the most restrictive definition as put forth by petition-

ers.”).

App. 50

(T]he problem for the government and the

tribe here is that it is undisputed that the

tribe has previously had at least one federal

reservation near the Kalamazoo area. They

had a three-mile reserve and they may have

had more. They’ve contended that they’ve

had more than one but they’ve at least had

one.

And so this is admitted in the tribe’s ap-

plication in several places. [Plaintiff directs]

the court to AR 1986 and AR 2033.

Tr. Oral Arg., at 46.

In contrast, defendants state:

[T]he two [| ] reservations that Plaintiff re-

fers to are actually the same 3-mile parcel in

Kalamazoo, Michigan.... [which] Plaintiff

also fails to point out ... was ceded by the

Potawatomi to the United States in the

Treaty of 1827.

Def.’s Reply, at 18 (citing AR 1986, 2033). Defendants

insist that the 3-mile parcel in question certainly does

not constitute tntervenor’s “initial” reservation be-

cause the definition of “Indian lands” as provided

within IGRA and the IRA “includes only those lands

which the United States recognizes as the tribe exer-

cising its governmental jurisdiction.” Def.’s Memo, at

46 (emphasis added). In defendants’ view, because

intervenor “currently does not exercise governmental

jurisdiction over any land,” it “currently does not

possess land that meets the definition of reservation

under IGRA or the IRA.” /d. at 47.

App. 51

To meet the “initial reservation” exception as a

matter of iaw, a tribe must be recognized by the U.S.

Government. See 25 U.S.C. § 2719(b)(1)(B)(1); see also

25 C.F.R. § 83.10 (explaining the process by which an

American Indian group becomes an officially recog-

nized Indian tribe). The history in this case regarding

the 3-mile parcel’s transfer to the government back in

1827 is murky. It is unclear if the parties themselves

are even fully aware of the circumstances surround-

ing the land transfer. Whatever the case, the land is

not intervenor’s “initial reservation” because interve-

nor only gained official governmental recognition on

August 23, 1999, 63 Fed. Reg. 56936, and has thus

never exercised jurisdiction over any land. Accord-

ingly, defendants’ classification of the Bradley Prop-

erty as intervenor’s “initial reservation” does not

violate the law.

On this issue, then, there is no genuine issue of

material fact in dispute.

II. Issuance of FONSI Instead of an EIS

Next, the Court considers plaintiff’s argument

that defendants’ decision to issue a FONSI and not an

EIS violates NEPA. Pl.’s Opp., at 1. Defendants and

intervenor counter that this decision, under the broad

discretion generally afforded administrative agencies,

is legally sound. Def.’s Memo, at 2438; Intv.’s Memo,

at 16-38.

Fundamentally, “NEPA ‘imposes only procedural

requirements on federal agencies with a particular

App. 52

focus on requiring agencies to undertake analyses of

the environmental impact of their proposals and

actions.” S.D. Warren Co. v. Me. Bd. of Envitl. Prot.,

_ US. __, 126 S. Ct. 1843, 1852 (2006) (citation

omitted). The Act “simply guarantees a particular

procedure, not a particular result.” Ohio Forestry

Ass’n vu. Sierra Club, 523 U.S. 726, 737, 118 S. Ct.

1665 (1998) (emphasis added). NEPA requires agen-

cies “to consider the cumulative environmental im-

pacts of any proposed action.” Town of Cave Creek uv.

FAA, 355 U.S. App. D.C. 420, 325 F.3d 320, 328

(D.C.Cir. 2003) (citation and internal quotation

marks omitted). Nevertheless, NEPA-related agency

decisions are afforded a considerable degree of defer-

ence, and “(aJn agency’s decision not to prepare an

EIS can be set aside only upon a showing that it was

arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.” Department of

Transportation v. Public Citizen, 541 U.S. 752, 763,

124 S. Ct. 2204 (2004) (citation and internal quota-

tion marks omitted).

Plaintiff makes two arguments which appear to

compete with one another in support of its position.

First, plaintiff argues that “the length and complex-

ity” of the EA “militates in favor of preparing an EIS”

because “CEQ advises that an EA should be no more

than 10-15 pages in length” and the EA contains

“ The Council of Environmental Quality (“CEQ”), “estab-

lished by NEPA with authority to issue regulations interpreting

it, has promulgated regulations to guide federal agencies in

(Continued on following page)

App. 53

“208 pages of text plus almost 1,000 pages of attach-

ments.” Pl.’s Opp., at 32 (emphasis added). Plaintiff

then appears to argue that the EA lacks sufficient

complexity, stating that it “is inadequate in its treat-

ment of the casino’s expected impact on the surround-

ing rural area [,]”” “fail/s] to address a number of

significant impacts from increased traffic generated

by the casino[,]” “gives short shrift to the expected

impact of the proposed casino on the broader West

Michigan community [,]” and is “deficien/t] ... in its

treatment of indirect impacts.” Jd. at 35, 39, 43, 45

(emphasis added).

A. Length and Complexity of EA

With regard to plaintiff’s length and complexity

argument, it was roundly rejected by the D.C. Circuit

in TOMAC v. Norton, 369 U.S. App. D.C. 85, 433 F.3d

852 (D.C. Cir. 2006), a recent case where, like here, a

determining what actions are subject to that statutory require-

ment.” Public Citizen, 541 U.S. at 757 (citing 40 C.F.R. § 1500.3).

Plaintiff asserts that the area which surrounds the

Bradley Property is rural. To this assertion, intervenor states

that the Bradley Property is currently zoned “light industrial.”

Intv.’s Memo, at 1 (discussing how intervenor “proposes to create

its casino by redeveloping existing (but currently vacant) factory

and warehouse buildings, on a site lying between a highway and

a railroad line that is already zoned for, and surrounded by, light

industrial and commercial uses.”). Plaintiff has constructively

“admitted” this characterization of the areas surrounding the

Bradley Property by not disputing it in filings or during oral

argument. LCvR 7(h).

App. 54

Michigan non-profit corporation challenged an agency

decision to take land into trust on behalf of an Indian

tribe. In that case, the parties “anticipated arrival of

4.5 million visitors a year to a rural community of

less than 5,000 residents[,]” while the EA took “four-

and-a-half years” to complete and was “almost 900

pages [.]” 369 U.S. App. D.C. 85, 433 F.3d 852, 862

(D.C.Cir. 2006). Here, in comparison, the Bradley

Property is anticipated to attract substantially less

visitors annually, see Intv.’s Answer, at 960, to a

slightly smaller area currently zoned “light indus-

trial.” Intv.s Memo, at 1. Moreover, the instant EA

appears to have taken much less time to complete and

is only slightly longer in page length, when including

attachments, than the EA in TOMAC. See Intv.’s

Memo, at 6, 32.

Still, when faced with an identical argument to

the length and complexity argument that plaintiff

makes here, the TOMAC court held that “the length

of an EA has no bearing on the necessity of an EIS.”

TOMAC, 433 F.3d at 862 (citation omitted). Addition-

ally, the court held that EA complexity and contro-

versy “do not by themselves show that the EAs’

conclusion — ‘no significant impact’ — is... incorrect.’”

Id. (quoting Szterra Club v. Marsh, 769 F.2d 868, 875

(1st Cir. 1985)). And regarding plaintiff’s reliance “on

the CEQ guidelines, which advise that an EA should

be no more than 10-15 pages in length[,]” the court

held that “[t]his guideline is not a binding regula-

tion{.]” Id. (emphasis added). Contrary to plaintiff’s

position, “‘[w]hat ultimately determines whether an

App. 55

EIS rather than an EA is required is the scope of the

project itself, not the length of the agency’s report.’”

Id. (quoting Heartwood, Inc. v. U.S. Forest Serv., 380

F.3d 428, 434 (8th Cir. 2004)).

Pursuant to the TOMAC holding, then, plain-

tiff’s length and complexity argument fails.“

B. Substantive Challenges to EA

Plaintiff also challenges the EA on substantive

grounds, arguing that it “glosses over” the Bradley

Property’s potential impacts on traffic, and its sur-

rounding and broader West Michigan communities.

‘“ The TOMAC ruling also undercuts plaintiff’s argument,

made a few months after oral argument on the dispositive

Motions, that an internal Interior Department document

entitled “Checklist for Gaming Acquisitions, Gaming Related

Acquisitions and IGRA Section 20 Determinations” mandates

that an EIS be prepared in this case. See generally Michgo’s

Post-Hearing Statement of Points and Authorities in Opposition

to Federal Defendants’ and the Gun Lake Band’s Motions to

Dismiss or in the Alternative for Summary Judgment [#68]

(“Pl.’s Post-Hearing Opp.”). The critical language that plaintiff

points to is as follows:

Proposals for large, and/or potentially contro-

versial gaming establishments should require

the preparation of an EIS, especially if mitiga-

tion measures are required to reduce significant

impacts.

Pl.’s Post-Hearing Opp., at 1-2 (emphasis in original). Notwith-

standing, if the CEQ guidelines do not bind the agency to

produce an EIS, TOMAC, 433 F.3d at 862, certainly the agency

is not bound to produce one by its own internal checklists.

App. 56

Pl.’s Opp., at 35-43. Plaintiff further argues that the

EA fails to adequately address indirect effects. Jd. at

43. In responding, intervenor described the threshold

question this way during oral argument: “It is not a

question of whether you or I or MichGO would have

made a different decision. The question is did [the

EA] actually ... consider the environmental conse-

quences.” Tr. Oral Arg., at 21.

Courts apply a four-part test when determining if

a FONSI was properly issued: (1) whether the agency

has “accurately identified the relevant environmental

concern|;]” (2) whether the agency has “taken a hard

look at the problem in preparing the EAI;]” (3)

whether the agency has made “a convincing case for

its finding” within the FONSI; and (4) “if the agency

does find an impact of true significance, preparation

of an EIS can be avoided only if the agency finds that

the changes or safeguards in the project sufficiently

reduce the impact to a minimum.” Grand Canyon

Trust v. FAA, 351 U.S. App. D.C. 253, 290 F.3d 339,

340-41 (D.C. Cir. 2002) (citations and internal quota-

tion marks omitted). Further, the Court reiterates the

long-standing rule that an administrative agency’s

decision to issue a FONSI instead of an EIS may only

be overturned “if it was arbitrary, capricious or an

abuse of discretion.” Sierra Club v. United States

Dept of Transportation, 243 U.S. App. D.C. 302, 753

F.2d 120, 126 (D.C. Cir. 1985).

Here, defendants analyzed the full range of

potential environmental impacts of taking the Brad-

ley Property into trust, took a “hard look” at the

App. 57

associated problems in preparing the EA, and offered

substantial mitigation measures where they found

truly significant impacts. Grand Canyon Trust, 290

F.3d at 340-41. Thus, the Court will leave the admin-

istrative finding undisturbed.

Below, the Court more closely examines the

potential environmental impacts of the Bradley

Property, as well as plaintiff’s specific challenges.

i Surrounding and Broader West

Michigan Communities

Plaintiff makes this argument regarding the

proposed casino site’s direct impact on its surround-

ing and broader Western Michigan communities: “The

farmland that makes up the area is a defining feature

of the community. Those who live in the area, includ-

ing MichGO’s members, did not move to the country so

they could be down the road from a massive casino.”

Pl.’s Opp., at 35 (emphasis added). Plaintiff also

raises the issue of the federal ozone standard as a

ground upon which the Court should order that an

EIS be prepared, arguing that defendants failed to

predict that Southwestern Michigan, which includes

the Bradley Property, would become a_ non-

attainment area for ozone under the Clean Air Act.

Id. at 33. Further, plaintiff argues that compulsive

gambling and crime will result if the Court allows the

administrative finding to stand. Jd. at 36-37. Defen-

dants and intervenor counter that the EA rigorously

examines the potential impacts on farmland and

App. 58

historic properties, the problem of atmospheric pollu-

tion and other such pollutants considered harmful to

public health and the environment, as well as cul-

tural resources and socioeconomic conditions. Def.’s

Memo, at 13; Intv.’s Memo, at 16-40. Having carefully

weighed the arguments of the parties, the Court

concludes that plaintiff’s argument lacks merit.

With regard to farmland and historic properties,

defendants assert that the Bradley Property fully

complies with the Farmland Protection Policy Act and

the National Historic Preservation Act, and is thus

not expected to impact federally designated farmland

or historic properties. Def.’s Memo, at 29. This asser-

tion finds ample support within the record. AR 125-26

(Prime and Unique farmland); AR 93-94 (historic

properties); see also Intv.’s Reply, at 23 (“[W)hile it is

true the facility will affect 21 acres of ‘locally impor-

tant’ farmland ... , this amounts to .011 percent of

County farmland bearing that designation —- a per-

centage ... reasonably deemed ‘relatively small.’”

(quoting AR 126)); Intv.’s Memo, at 6 (“[NJo signifi-

cant historical resources will be affected.”). Moreover,

plaintiff’s argument that those who have brought

this action and others “did not move to the country so

they could be down the road from a massive casinol,]”

Pl.’s Opp., at 35, simply does not establish that de-

fendants acted arbitrarily, capriciously or abused

their discretion in reaching the preceding conclusion.

On the issue of pollution, plaintiff argues that the

Bradley Property is located within an ozone non-

attainment area. Pl.’s Opp., at 33. Intervenor responded

App. 59

during oral argument that the area has not yet been

so designated. Tr. Oral Arg., at 24 (“{Al]fter the EPA

changed the means of monitoring ozone, Congress

passed a specific law that for a period of time that

includes the present has declared that this area is an

ozone attainment area. So it has not yet even become

a non-attainment area.” (emphasis added)). However,

in anticipation of the area eventually being desig-

nated a non-attainment zone by the federal govern-

ment, defendants conducted an additional study

which lead them to the following conclusion:

whether this is an attainment or non-

attainment zone, this project will have no

significant environmental effects with re-

spect to ozone in particular, air-quality in

general because the level of emissions from

this project will fall below the federal thresh-

old of 100 tons per year of significance|.]

Tr. Oral Arg., at 25 (emphasis added).

This conclusion makes a convincing case for the

administrative finding because it details how the

Bradley Property will avoid significantly impacting

current air-quality levels, and will likewise avoid

significantly impacting air-quality levels in the event

that “future regulations” are put into place. 7d. De-

fendants also note that the Bradley Property fully

complies with the Clean Air Act and the National

* But see TOMAC, 433 F.3d at 863-64 (“BIA [i]s under no

obligation to hypothesize about future regulations.”).

App. 60

Ambient Air Quality Standards. Def.’s Memo, at 39.

Moreover, defendants insist that any potential im-

pacts to water quality posed by the Bradley Property

will be mitigated. Jd. The immediately preceding

assertions also find record support. See AR190, 1239-

46; see also AR185-91 (discussing EPA requirement

that a Storm Water Pollution Prevention Plan be

prepared to limit soil erosion and address any im-

pacts to water quality brought on by the proposed

casino).

And with regard to the issues of cultural re-

sources and socioeconomic conditions, plaintiff argues

that the Bradley Property, if converted into a casino,

will trigger a marked increase in compulsive gam-

bling and crime, yet “the EA devotes not a single word

to discussing the implications” of these increases. PI.’s

Opp., at 36-37 (citations omitted); but see id. at 33

(admitting that the EA examined the effects of com-

pulsive gambling and crime, concluding “that they

are not expected to be significant|.]” (emphasis

added)). Defendants and intervenor contend, however,

that the EA provides exhaustive analysis in these

areas. See Intv.’s Memo, at 31-33; see also Def.’s

Memo, at 30. As set forth below, the Court concludes

that the facts simply do not bear plaintiff’s argument

out.

Defendants, to be sure, found no convincing

evidence demonstrating that compulsive gambling

and crime increase with the introduction of a casino

into a community. AR 134-35. Plaintiff has failed to

identify the defect in this conclusion, and has likewise

App. 61

failed to identify any flaws in the process undertaken

in reaching this conclusion. See Ohio Forestry, 523

U.S. at 737 (procedural requirements under NEPA).

Rather, plaintiff asserts with no authority that casi-

nos cause “well/-/known impacts of compulsive gam-

bling on individuals and families, including increased

rates of alcoholism, drug abuse, divorce, crime, and

bankruptcy.” Pi.’s Opp., at 37 (emphasis added).

Further, the Court notes that intervenor is signatory

to a legally-binding agreement which is specifically

designed to combat resultant crime and gambling,

having

waived its sovereign immunity with the local

police department to pay for four additional

deputies to the tune of [approximately]

$400,000 a year in order to be available to

respond to any crime consequences that oc-

cur in the casino or as a result.

[Further,] the tribe has undertaken to

engage in training efforts and other commu-

nity-based efforts to deal with any tendency

to compulsive gambling. ...

Tr. Oral Arg., at 31-32; accord Def.’s Reply, at 31 n.13

(“(Wlhile respected studies show no correlation be-

tween casinos and the string of societal ills MichGO

lists, the Tribe nonetheless committed to undertake

significant, particularized mitigation to alleviate local

concerns.”). Again, plaintiff has failed to show how

the foregoing mitigation measures do not comply with

the procedural requirements imposed under NEPA.

App. 62

For these reasons, the Court does not deem the

finding of no significant impact relating to the pro-

posed casino site’s impact on its surrounding and

broader Western Michigan communities to be arbi-

trary, capricious, or an abuse of discretion.

ii. Indirect Effects

Plaintiff also takes issue with the EA’s findings

regarding indirect effects, which “are caused by the

action and are later in time or farther removed in

distance, but are still reasonably foreseeable.” 40

C.F.R. § 1508.8. Specifically, plaintiff argues that the

EA is deficient in its analysis of “induced growth as it

relates to traffic from the casino[,]” in addition to

“land use patterns, population density and growth,

and effects on air, water, and other natural re-

sources....” Pl.’s Opp., at 46. Plaintiff further chal-

lenges the EA on the ground that “indirect growth

induced by the casino would result in the destruction

of 13 acres of wetlands and 23 acres of federally

recognized ‘prime farmlands.’” Pl.’s Opp., at 36 (citing

AR 167, 179). Further, plaintiff argues that the EA

continually “attempts to downplay the potential for

significant indirect impacts from the casino by point-

ing to the alleged ability of local planning and zoning

to control the impacts once the casino is in place.” /d.

Defendants and intervenor argue that the EA

fully complies with the requirements imposed under

NEPA regarding indirect effects. See Def.’s Memo, at

30, 36-37; Intv.s Memo, at 35-37; see also Tr. Oral

App. 63

Arg., at 29 (“[The EA] contains 37 pages of discussion

of the possible indirect effects ... and concludes as to

each one that there will be no environmentally sig-

nificant consequences particularly taking into ac-

count the mitigation measures that the tribe has

undertaken to conduct.”). The Court concludes that

defendants’ and intervenor’s arguments prevail for

the reasons that follow.

As is required by law, the EA thoroughly consid-

ered the Bradley Property’s foreseeable impacts on

growth, residential and commercial development,

land and water resources, wetlands, wildlife, socio-

economic and cultural issues, traffic and pollution.

See AR 146-183. Defendants justify their finding of no

significant impact regarding indirect effects by stat-

ing that the Bradley Property will not significantly

impact wetlands”, see AR 166-67, emissions, see AR

'° Defendants have presented preventative mitigation

measures to curb impacts to wetlands, although they maintain

that wetlands will not be impacted.

Such mitigation included, in part, (1) the use of a

sediment erosion control plan, “enforceable under a

NPDES permit issued by the KPA”; (2) the sitting of

all construction staging areas away from all water-

ways and wetlands; and (3) the construction of a 120-

foot long retaining wall on the parking lot to prevent

disturbance of the nearby wetland area.

Intv.’s Memo, at 20 (citing AR 187-88, 1125-26, 1136). “NPDES”

is an acronym for the National Pollutant Discharge Elimination

System. The Michigan Department of Environmental Quality

manages the NPDES permit program within the State of

(Continued on following page)

App. 64

1241-42, land resources, see AR 135, 164-65, water

resources, see AR 135-36, 165-66, biological resources,

see AR 136, 166-68. historic properties and religious

freedom, see AR 137, 168-69, socioeconomic conditions/

environmental justice, see AR 137, 169-77,

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