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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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,

V.

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 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).

12

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, and re-
source use patterns, see AR 137-45, AR 177-83. Def.’s
Memo, at 28-30, 33, 35-37. Defendants’ findings
which relate to foreseeable indirect effects are, as
shown, supported by the record. See also AR 147-56
(housing growth of core area and outer core area).
Plaintiff has failed to support its argument that
“(djefendants’ EA is [] deficient in this case” with
respect to the treatment of indirect effects, Pl.’s Opp.,
at 45, as plaintiff has not demonstrated how defen-
dants’ findings do not comport with the NEPA re-
quirements.

And despite plaintiff’s objection to the EA’s
discussion of local planning and zoning in addressing
indirect effects, it has provided no controlling author-
ity which explains why this administrative approach
somehow violates the procedural requirements im-
posed under NEPA. Besides, defendants argue that
the EA does not rely on local planning and zoning in
addressing indirect effects, but merely “assume[s]
that all reasonably foreseeable indirect development
will be in compliance with local planning and zoning
laws.” Def.’s Memo, at 36-37. A close reading of the

Michigan. United States v. Kuhn, 345 F.3d 431, 432-33 (6th Cir.
2003).

App. 65

record reveals that defendants’ interpretation in this
respect is the correct one. See AR 135-37, 145-46.
Indeed, plaintiff seems to concede the point by stating
in relevant part:

The EA admits that “reasonably foresee-
able indirect development. ... is anticipated
to occur” but that the impacts will be mini-
mized because any such development will
take place “in compliance with local plan-
ning and zoning ordinances and other man-
dates.” { ] The EA states that no impacts to
area land resources are expected because
“proper design for site conditions will avoid
potential impacts... .” [ ] The EA [concludes
that there will not be] any significant impact
to agriculture and prime farmlands because
“any future development would need to con-
form to local government plans for develop-
ment....” [] And the EA states that no
significant socioeconomic impacts are ex-
pected because “any additional development
within the project vicinity would be required
to conform to existing township zoning... .”

Pl.’s Opp., at 39 at 46-47 (citation omitted) (emphasis
added).

Fundamentally, plaintiff appears to object more
to the conclusion reached regarding indirect effects
than to the process undertaken within the EA. How-
ever, as established above, NEPA “simply guarantees
a particular procedure, not a particular result.” Ohio
Forestry Ass’n, 523 U.S. at 737 (emphasis added).
Therefore, plaintiff has failed to demonstrate that the

App. 66

administrative findings regarding indirect effects are
arbitrary, capricious, or an abuse of discretion.

ili. Traffic

Plaintiff’s objection to the Bradley Property’s
potential impact on traffic ~ and particularly the
impact to northbound and southbound intersections —
is perhaps its strongest argument. Regarding traffic
volume, plaintiff argues that the EA erroneously
compares the Bradley Property and the Turtle Creek
casino, which is also in Michigan, because interve-
nor’s

casino would be three times larger than
Turtle Creek, closer to larger population cen-
ters than Turtle Creek, visibly located next
to a highway with nearly twice the daily
traffic of Turtle Creek, and located in south-
west Michigan, which has fewer casinos than
the area where Turtle Creek is located.

Pl.’s Opp., at 39 (emphasis in original). In addition,
plaintiff argues that defendants’ own data shows that
northbound and _ southbound intersections which
surround the Bradley Property “will operate at unac-
ceptable levels of congestion once the casino is in
operation, yet they still conclude that this is not
potentially significant for purposes of NEPA.” dd.
(emphasis added). And with respect to the role of
state and local agencies in the final administrative
finding, plaintiff makes this argument:

App. 67

(The Michigan Department of Transportation
(““MDOT”)] was not aware of the significant
traffic problems identified by Defendants in
their study. Moreover, the ... MDOT dfid]
not mention anything about the proposed
“all-way stop control” at the US-131
southbound ramps recommended by the EA,
or offer any opinion as to whether it would
solve the problem. Thus, although the EA
concedes there will be a significant impact to
southbound traffic as a result of the casino, it
incorrectly suggests that MDOT has ap-
proved of the proposed mitigation.

The EA suggests that the Allegan
County Board of Road Commissioners agrees
with Defendants’ conclusion of no significant
impact to the Village of Hopkins. (ARO0O116).
But this is disingenuous. The letter from the
Board of Road Commissioners is dated
March 13, 2003, which is three months be-
fore Defendants completed their traffic study
on the Village of Hopkins on June 6, 2003,
(see AROO0590). This means, at the time it
wrote its letter, the Board could not have
known about the significant impacts that
would be identified in the traffic study three
months later. Thus, Defendants’ suggestion
that the Board agrees with its conclusion of
no significant impact on the Village of Hop-
kins is patently false. Defendants’ own traffic
study shows that impacts at the key inter-
section in the Village of Hopkins will be sig-
nificant, and the EA contains no mitigation

App. 68

measures to reduce those impacts below the
level of significance. (ARO00189-90). There-
fore, as with other parts of the traffic study
discussed above, Defendants cannot main-
tain that the EA’s conclusion of no significant
impacts is reasonable.

Id. at 41, 42-43 (citations omitted) (emphasis in
original)."’

Defendants counter that the EA took a “hard
look” at each specific problem associated with traffic,
and that significant impacts will be reduced to a
minimum with the implementation of enforceable
mitigation measures. Def.’s Memo, at 39 (citing AR
221-22, 239). For the following reasons, the Court is
convinced that defendants’ finding of no significant
traffic impact does not violate NEPA.

The Court first considers plaintiff’s objection to
the EA’s comparison of the Bradley Property with the
Turtle Creek casino. It bears repeating that when
analyzing NEPA-related decisions, a court must be
“deferential to the administrative agency|.]” Williams
v. Dombeck, 151 F. Supp. 2d 9, 18 (D.D.C. 2001)
(citing Environmental Defense Fund, Inc., v. Costle,
211 U.S. App. D.C. 313, 657 F.2d 275, 282 (D.C. Cir.
1981)). This means that a court “presumes the agency
action to be valid” unless convinced otherwise. Id.

1

' “LOS” is an acronym for levels of service. Id. at 40. “An ‘A’
is the highest LOS rating available, followed by B, C, D, E, and
F.” Jd. at n.17.

App. 69

(citing Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 419, 91S. Ct. 814 (1971)).

Here, the EA purportedly makes a comparison
between the Bradley Property and the Turtle Creek
casino because of Turtle Creek’s “similarity to the [ ]
proposed casino....” Intv.’s Memo, at 24. The EA
considers the Bradley Property and Turtle Creek to
be similar, despite their differences in size, because
Turtle Creek also “abuts a state highway, [ ] is situ-
ated in a similar setting with tourism in the area, and
its casino features two restaurants.” Jd. (citing AR
109). The EA certainly reflects an awareness of the
size disparity between the Bradley Property and
Turtle Creek. AR 109 (noting that the Bradley Prop-
erty “is about three times larger than the Turtle Creek
casino....” (emphasis added). However, factors such
as the accessability to highways and restaurants, and
the anticipated affect on tourism proved far more
relevant when determining if the Bradley Property
would pose a significant impact on traffic. See id.
Piaintiff has not adequately identified the defect in
this methodology, especially in light of the consider-
able deference owed NEPA-related agency decisions.
Moreover, “this court is not empowered to substitute
its judgment for that of the agency.” Hughes River
Watershed Conservancy, 165 F.3d at 288; see also
County of San Diego v. Babbitt, 847 F. Supp. 768, 775
(D. Cal. 1994) (holding that even “disagreement
between experts does not invalidate an EIS.” (citing
Havasupat Tribe v. Robertson, 943 F.2d 32, 34 (9th
Cir. 1991)).

App. 70

The issue of northbound and southbound traffic
congestion, however, gives the Court pause because
intervenor appears to have contradicted itself. Ini-
tially, intervenor seemed to concede in its papers that
traffic at northbound and southbound intersections
close to the Bradley Property presents a significant
problem, explaining that the EA offers responsive
mitigation measures and how the traffic engineering
firm that it retained, URS Corporation, helped to
reach this conclusion. Specifically, intervenor stated:

The study did find that the infusion of casino
traffic could affect the flow of afternoon rush
hour traffic in two directions. ...

[These directions are] southbound at the
US-131/129th Avenue ramp and northbound
at the US-131 Avenue ramp intersections
near the project site[.]

URS identified road improvements that
would either eliminate the projected traffic
congestion at the identified intersections

or alleviate it to the satisfaction of the
MDOT. ...

Intv.s Memo, at 22-23 & n. 8 (emphasis added).
Notwithstanding this apparent concession, intervenor
then made the following assertion at oral argument,
which suggested a conclusion reached by URS that
traffic congestion at northbound and southbound
intersections would be of little to no impact:

App. 71

[T]he low rating, the F rating or E rating
that was reflected in their study, is traffic on
the intersection that travels northbound on
the 22 but they found all of the casino traffic
goes — it is either east or west. I can’t re-
member which, on route 42.

Tr. Oral Arg., at 68-69. Intervenor continued:

Therefore, they found that the casino
traffic would not have any affect, significant
or otherwise, on whatever traffic problems
may exist going north or south. In fact, ...
the URS Corporation’s expert traffic study

. reveals | | that in terms of casino traffic
which is on route not route 22, the peak vol-
ume is 70 trips per hour.

In other words one car every minute will
be going over this road in a different direc-
tion in the eastbound direction and west-
bound 40 trips per hour during the peak
hour that was studied.

I mean, it is not the burden of this court
and it is not the office of this court to second-
guess what the URS experts reviewed not
once but twice and what the BIA and the
NIGC and the Michigan Department of
Transportation and the Allegan County
Roads Commission have all concluded is not
a significant impact.

But it speaks volumes about how weak
NEPA arguments are that we are reduced to
arguing about whether, in fact, with respect

App. 72

to this one intersection they came to the
right conclusion.

Id. at 69 (emphasis added). Putting aside intervenor’s
opinion of the relative strength of NEPA challenges,
the Court will assume that the Bradley Property, if
converted into a casino, would place a significant
burden on northbound and southbound intersections.
But that is not the end of the inquiry.

Turning to analyze the proposed mitigation
measures, then, the following is proposed within the
EFA: building a “right turn lane from the northbound
US-131 off-ramp turning onto 129th Avenue, east-
bound” to mitigate the impact on northbound traffic,
and installing an “all-way stop control at the US-131
southbound ramps/129th Avenue intersection” to
mitigate the impact on southbound traffic. AR 189-90.
The EA concludes that such mitigation measures will
reduce traffic congestion to acceptable levels, id.,
which is a conclusion that plaintiff has not shown to
be flawed under NEPA. Further, it is important to
again note that all of the mitigation measures pro-
posed in response to the anticipated environmental
impacts of the Bradley Property — including traffic
impacts at the northbound and southbound intersec-
tions — are enforceable. See Intv.’s Reply, at 18 (“[T]he
Tribe expressly agreed to waive its sovereign immu-
nity vis-a-vis the local agencies for purposes of enforc-
ing those agreements (AR 221-222, 239), and it
possesses no sovereign immunity vis-a-vis the federal
government in any event.... Accordingly, the BIA

App. 73

can enforce the mitigation upon which its FONSI
rests... .”).

And with regard to the input of state and local
agencies, intervenor asserts that defendants con-
ducted a study with the input of MDOT and the
Allegan County Road Commission, and concluded
that Hopkins, Michigan and areas close to the Brad-
ley Property would not be significantly impacted.
Intv.’s Memo, at 26 (discussing Hopkins, Michigan
(citing AR 115-16; 509-17; 1090)); Intv.’s Reply, at 25
(“Both MDOT and the Board of County Road Com-
missioners of Allegan County ... concluded the
project, as mitigated, would not adversely affect
traffic flows.” (citing AR 586-90)). Plaintiff counters
that MDOT could not have agreed with the traffic
study because a letter from the state agency express-
ing support for the finding “was written before
Defendants’ traffic study was completed on November
2, 2001.” Pl.’s Opp., at 41 (citing AR 442). Similarly,
plaintiff argues that a “letter from the [Allegan]
Board of Road Commissioners [| ] dated March 13,
2003” is also irrelevant to the administrative finding
because it was written “three months before Defen-
dants completed their traffic study on the Village of
Hopkins on June 6, 2003{.|” Jd. at 42 (citing AR 590)
(emphasis in original).

Despite plaintiff’s objection, it is apparent that
both MDOT and the Allegan County Road Commis-
sion supported the traffic mitigation measures that
are proposed within the EA. The MDOT initially
expressed its support by submitting a “plan and field

App. 74

review” of the Bradley Property on September 25,
2001. AR 586-87. This document preceded the final
traffic study by less than two months. Pl.’s Opp., at 41
(“Defendants’ traffic study was completed on Novem-
ber 2, 2001.”); Intv.’s Reply, at 26 (same). The Court
concludes that the brief passage of time between
MDOT’s submission of the “plan and field review” and
the final traffic study does not support the reasonable
inference that “MDOT was not aware of the signifi-
cant traffic problems identified by Defendants in
their study[,]” Pl.’s Opp., at 41 (emphasis added), nor
does it undermine the proposed mitigation measures.
As further evidence of its support, MDOT submitted
an additional document on February 12, 2002 which
conveyed its favorable opinion of the administrative

finding. AR 589.

And with regard to the Allegan County Road
Commission and its stance on Hopkins, Michigan, the
local agency initially expressed that the Bradley
Property, if converted into a casino, would pose “no
significant impact to the roadways under [its] juris-
diction... .” Jd. at 590. However, the Village of Hop-
kins requested reconsideration following this traffic
study, prompting defendants to re-examine the poten-
tial impacts on the Hopkins area. /d. at 510-11.
Defendants conducted the second study with the
input of the Allegan County Road Commission and, as
before, the Commission concluded that the Bradley

Property would pose no significant traffic problems.
Id.

App. 75

In sum, upon consideration of the EA’s extensive
analysis of the cumulative environmental impacts of
the Bradley Property, plaintiff’s argument falls short
of demonstrating that the actions of defendant were
arbitrary, capricious, or an abuse of discretion. On
this claim, there are no issues of material fact in
dispute.

III. Authorization of Class III Gaming

Plaintiff claims that defendants cannot lawfully
authorize Class III gaming at the Bradley Property
under IGRA in the absence of a tribal-state gaming
compact. Complaint, at 47; see Def.’s Memo, at 2.
Defendants and intervenor counter, inter alia, that
the absence of a tribal-state compact should not stand
as an impediment to acquiring the Bradley Property
in trust. See Def.’s Memo, at 47; Intv.’s Memo, at 48.

IGRA divides gaming into three classes. Narra-
gansett Indian Tribe v. National Indian Gaming
Comm’n, 332 U.S. App. D.C. 429, 158 F.3d 1335, 1337
(D.C. Cir. 1998).

“Class I gaming is described as ‘social games
solely for prizes of minimal value or tradi-
tional forms of Indian gaming.’ 25 U.S.C.
§ 2703(6). Class II gaming includes games of
chance such as binyo or poker. See 25 U.S.C.
§ 2703(7). All other forms of gaming are
listed under Class III. See 25 U.S.C.
§ 2703(8). Each class is progressively more
regulated.”

App. 76

Vending v. Nat'l Indian Gaming Comm’n, 2001 U.S.
Dist. LEXIS 26013, at *3 n.2 (D. Fla. April 5, 2001).

With regard to Class III gaming, which is the
focus of plaintiff’s challenge here, IGRA “permits
such activities on Indian lands provided that five
requirements are met.” United States v. Garrett, 122
Fed. Appx. 628, 630 (4th Cir. 2005). Among these
requirements, IGRA provides that the gaming activi-
ties must be: “conducted in conformance with a Tribal-
State compact entered into by the Indian tribe and
the State[.]” Jd. (quoting 25 U.S.C. § 2710(d)(1)(C)).

Regarding IGRA and the issue of tribal-state
compacts, the overwhelming weight of authority is
clear: “[AjJn Indian tribe may conduct [Class IIT]
gaming activities only in conformance with a valid
compact between the tribe and the State in which the
gaming activities are located.” Seminole Tribe v. Fla.,
517 U.S. 44, 47, 116 S.Ct. 1114 (1996) (emphasis
added); accord United States ex rel. St. Regis Mohawk
Tribe v. President R.C.-St. Regis Mgmt. Co., 451 F.3d
44, 49 (2d Cir. 2006) (“Class III gaming is to be regu-
lated by compacts between states and tribes.”); Lac
Du Flambeau Band v. Norton, 422 F.3d 490, 492-93
(7th Cir. 2005) (“The IGRA allows tribes to operate
casinos on their reservations or on lands held in trust
for their benefit ... only if conducted pursuant to an
agreement between the tribe and the state....”
(emphasis added)); N. Arapaho Tribe v. Wyoming, 389
F.3d 1308, 1310 (10th Cir. 2004) (“Under the IGRA,” to
engage in Class III gaming, “a tribe must negotiate

App. 77

with the state and enter into a ‘tribal-state’ com-
pact....” (emphasis added)); Artichoke Joe’s Cal.
Grand Casino v. Norton, 353 F.3d 712, 716 (9th Cir.
2003) (discussing “IGRA’s [Class III] compacting
requirement” (emphasis added)).

However, a tribal-state compact is not required to
engage in Class II gaming. Seneca Cayuga Tribe of
Okla. v. Nat'l Indian Gaming Comm’n, 327 F.3d 1019,
1023 (10th Cir. 2003) (“Class II gaming may be con-
ducted in Indian country without a tribal-state com-
pact.” (citation omitted)); accord Diamond Game
Enters. v. Reno, 343 U.S. App. D.C. 351, 230 F.3d 365,
367 (D.C. Cir. 2000); United States v. Santee Sioux
Tribe of Neb., 324 F.3d 607, 611 (8th Cir. 2003);
United States v. 103 Elec. Gambling Devices, 223 F.3d
1091, 1094 (9th Cir. 2000).

As of the date of oral argument in this case,
intervenor had not secured a tribal-state compact. Tr.
Oral Arg., at 14 (admission by defendants that “there
is no compact|.]”). Defendants previously attributed
this fact to a vote in “the Michigan Senate [ |] to
rescind the resolution that awarded a compact to
[intervenor] ... before the Governor was able to sign
the compact.” Def.’s Memo, at 10. Whatever the case,
defendants recognize that Class III gaming can only
be conducted on Indian land “in conformance with a
Tribal State compact.” /d. at 9 (citing 25 U.S.C.
§ 2710(d)). Defendants maintain, however, that
intervenor will “operate a Class II facility on the site
[ ] if a Tribal State compact is not negotiated and
signed with the State of Michigan.” Def.’s Memo, at

App. 78

10. Intervenor echoed this sentiment, arguing that
after defendants take the Bradley Property into trust,
it “will be free to offer Class II gaming, as no compact
with the state is required” under this scenario. Intv.’s
Memo, at 49 (citations omitted).

Plaintiff does not dispute the substance of the
counter arguments or attempt to distinguish the
cases regarding Class II gaming, but has instead
responded this way:

The EA fails to address what becomes of
these measures now that [intervenor] has no
compact. Will they simply be abandoned? If
not, how will they be paid for? The EA does
not say, because it was written on the false
assumption that [intervenor] would have a
compact.

Pl.’s Opp., at 33-34.

Plaintiff’s foregoing response does not aid its
argument that the absence of a tribal-state compact
should prevent defendants from acquiring the Brad-
ley Property in trust. The alternative solution put
forward by defendants and intervenor, which is to
offer Class II gaming until the Class III gaming
requirements are met, is in full compliance with
IGRA. Diamond Game Enters., 230 F.3d at 367.
Consequently, there is no genuine issue of material
fact as to the absence of a tribal-state gaming com-
pact.

App. 79

IV. Delegation of Legislative Authority

Finally, the Court addresses plaintiff’s argument
that defendants’ intent to place the Bradley Property
in trust disregards the Constitution’s limitation on
delegated legislative power. Complaint, at {| 4. More
specifically, plaintiff argues that § 5 of the IRA is “a
standardless delegation of legislative authority by
congress,” and is therefore unconstitutional. PIl.’s
Opp., at 49. Defendants and intervenor regard plain-
tiff’s argument to be an incorrect reading of constitu-
tional law. See Intv.’s Memo, at 50; Def.’s Memo, at
50.

“(DJerived from the ... Constitution’s mandate
that ‘all legislative Powers herein granted shall be
vested in a Congress of the United States,’ U.S.
Const. Art I, § 1,” the non-delegation “doctrine pro-
hibits Congress from delegating its entire legislative
power to another branch of government.” United
States v. Walker, 910 F.Supp. 837, 850 (N.D.N_Y.
1995) (citing Mistretta v. United States, 488 U.S. 361,
372, 109 S. Ct. 647 (1989)). Despite this constitu-
tional mandate, the doctrine does “not prevent Con-
gress from obtaining the assistance of the coordinate
branches.” National Federation of Federal Employees
v. United States, 284 U.S. App. D.C. 295, 905 F.2d
400, 404 (D.C. Cir. 1990) (citation omitted). The
Supreme Court has developed the “intelligible princi-
ple” test to determine if Congress violated the non-
delegation doctrine. Jd. The test provides that as
“long as Congress ‘shall lay down an intelligible
principle to which the person or body authorized to

App. 80

[exercise the delegated authority] is directed to
conform, such legislative action is not a forbidden
delegation of legislative power.” Jd. (quoting J.W.
Hampton, Jr. & Co. v. United States, 276 U.S. 394,
406, 409, 48 S. Ct. 348 (1928) (other citation omitted)
(emphasis and alterations in original)). The Court
“has not invalidated legislation on non-delegation
grounds in over fifty years.” Jd. Indeed, “[o]nly the
most extravagant delegations of authority, those
providing no standards to constrain administrative
discretion, have been condemned ... as unconstitu-
tional.” Humphrey v. Baker, 270 U.S. App. D.C. 154,
848 F.2d 211, 217 (D.C.Cir.), cert. denied, 88 U.S. 966,
109 S.Ct. 491 (1988) (emphasis added). Measured
against the foregoing legal standard, plaintiff’s
argument is unpersuasive.

Preliminarily, it is important to note here that
plaintiff does not argue that defendants have violated
the IRA. See Pl.’s Opp., at 49. Rather, it is plaintiff’s
position that a portion of the IRA is itself unconstitu-
tional. Complaint, at 9 4. Applying the “intelligible
principle” test to the statute, then, the Court’s task is
to determine whether §5 qualifies as a “most ex-
travagant delegation[| | of authority,” “providing no
standards to constrain administrative discretion. .. .”
Humphrey, 848 F.2d at 217.

Section 5 provides the following:

The Secretary of the Interior is hereby
authorized, in his discretion, to acquire

App. 81

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.

25 U.S.C. § 465.

The statute cannot be read in isolation — as
plaintiff has done — because it works in conjunction
with administrative regulations to provide the stan-
dards for the administrative exercise of discretion.
United States v. Roberts, 185 F.3d 1125, 1136 (10th
Cir. 1999). In other words, while § 5 “authorizes the
Secretary to take certain lands into trust for the
benefit of an Indian tribe [,]” “[t]he procedures gov-
erning the Secretary’s exercise of discretion in this
regard are set forth in Department of Interior regula-
tions.” Connecticut ex rel. Blumenthal v. United States
DOI, 228 F.3d 82, 85 (2d Cir. 2000) (citing 25 U.S.C.
§ 465; 25 C.FR. §151) (other citations omitted)
(emphasis added). This is apparent from a plain
language reading of the notes to § 5, which state that
the statute “is implemented by the BIA in its regula-
tions concerning ‘land acquisitions’... .” McAlpine ov.
United States, 112 F.3d 1429, 1431 (10th Cir. 1997)
(citing 25 C.F.R. § 151) (emphasis added).

“In evaluating requests to acquire land in trust
status, the regulations provide that the Secretary, or

App. 82

his or her authorized representative, shall consider”
the factors below:

(a) The existence of statutory authority for
the acquisition and any limitations contained
in such authority;

(b) The need of the individual Indian or the
tribe for additional land;

(c) The purpose for which the land will be
used;

(d) Ifthe land is to be acquired for an indi-
vidual Indian, the amount of trust or re-
stricted land already owned by or for that
individual and the degree to which he needs
assistance in handling his affairs,

(e) If the land to be acquired is in unre-
stricted fee status, the impact on the State
and its political subdivisions resulting from
the removal of the land from the tax rolls;

(f) Jurisdictional problems and _ potential
conflicts of land use which may arise; and

(g) If the land to be acquired is in fee
status, whether the Bureau of Indian Affairs
is equipped to discharge the additional re-
sponsibilities resulting from the acquisition
of the land in trust status.

Id. at 1432 (citation omitted) (emphasis added).
Further, “[iJn the event that the Secretary determines
that a request should be denied, the regulations
require the Secretary to inform the applicant as to the
reasons in writing and notify him or her of the right

App. 83

to appeal this decision....” Id. (citation omitted)
(emphasis added).

Clearly, not only does the preceding regulatory
scheme, which the agency is obliged to follow pursu-
ant to § 5, “require” the Secretary to consider a host
of enumerated factors, id. at 1431, it also provides for
written decisions when applications are denied and
appellate review of those decisions. 25 C.F.R.
§ 151.10-11. The Court therefore concludes that in
enacting § 5, “Congress clearly delineate[d] the gen-
eral policy, the public agency which is to apply it, and
the boundaries of this delegated authority.” Mistretta,
488 U.S. at 372 (citations and internal quotation
marks omitted).

Accordingly, plaintiff’s claim that § 5 of the IRA
violates the non-delegation doctrine fails as a matter
of law.

CONCLUSION

For the reasons set forth above, the United
States Motion to Dismiss or in the Alternative for

" Cf. TOMAC, 433 F.3d at 867 (“We categorically reject the
suggestion that the Secretary has been given no direction as to
where she is to take land into trust for the Tmbe. It is obvious
here that the Secretary’s delegated authority ... is cabined by
‘intelligible principles’ delineating both the area in and the
purpose for which the land should be purchased. We therefore
find that Congress’s delegation to the agency was lawful.”).

App. 84

Summary Judgment [#33], and the Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians’ Motion
for Judgment on the Pleadings or, in the Alternative
for Summary Judgment [#32] will be granted. An
appropriate Order will follow this Opinion.

Date: February 23, 2007 JOHN GARRETT PENN
United States District
Judge

App. 85

United States Court of Appeals
For THE DISTRICT OF COLUMBIA CIRCUIT

No. 07-5092 September Term 2007
05cv01181
Filed On: July 25, 2008
Michigan Gambling Opposition,
A Michigan Non-profit Corpora-
tion,
Appellant
v.

Dirk Kempthorne, In his official
capacity as Secretary of the
United States Department of
the Interior, et al., et al.,

Appellees

BEFORE: Sentelle,* Chief Judge, and Gins-
burg, Henderson, Randolph, Rogers,
Tatel, Garland, Brown,* Griffith,*
and Kavanaugh, Circuit Judges

ORDER

Appellant’s petition for rehearing en banc and
the response thereto were circulated to the full court,
and a vote was requested. Thereafter, a majority of

* Chief Judge Sentelle, and Circuit Judges Brown and
Griffith would grant the petition.

App. 86

the judges eligible to participate did not vote in favor
of the petition. Upon consideration of the foregoing,
it is

ORDERED that the petition be denied.

FOR THE COURT:

Mark J. Langer, Clerk
BY: /s/

Michael C. McGrail

Deputy Clerk

App. 87

United States Court of Appeals
For THE DISTRICT OF COLUMBIA CIRCUIT

No. 07-5092 September Term 2007
05cv01181
Filed On: August 15, 2008

Michigan Gambling Opposition,
A Michigan Non-profit Corpora-
tion,

Appellant
V.

Dirk Kempthorne, In his official
capacity as Secretary of the
United States Department of
the Interior, et al., et al.,

Appellees

BEFORE: Ginsburg, Rogers, and _ Brown,
Circuit Judges

ORDER

Upon consideration of appellant’s emergency
motion for stay of mandate pending petition of certio-
rari, and the oppositions thereto, it is

App. 88

ORDERED that the motion for stay be granted.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk
BY: /s/

Michael C. McGrail

Deputy Clerk

App. 89

Supreme Court of the United States
No. 08A184

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

Applicant,
v.

MICHIGAN GAMBLING OPPOSITION

ORDER

UPON CONSIDERATION of the application of
counsel for the applicant, and the response filed
thereto

The motion to vacate the stay entered by the
Court of Appeals is denied. See Commodity Futures
Trading Comm’n v. British American Commodity
Options Corp., 434 U.S. 1816, 1319 (1977) (Marshall,
J., in chambers) (“Since the Court of Appeals was
quite familiar with this case ... its determination
that stays were warranted is deserving of great
weight”).

/s/ John G. Roberts, Jr.,
Chief Justice of the United States

Dated this 3rd
day of September, 2008.

OPPOSITION
BRIEF

Supreme Const -
.

DEC 5 - 2008

IN THE

Supreme Court of the United States

MICHIGAN GAMBLING OPPOSITION,
Petitioner,
Vv.

DIRK KEMPTHORNE, SECRETARY OF INTERIOR, et al.,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT
MATCH-E-BE-NASH-SHE-WISH BAND OF

POTTAWATOMI INDIANS

CONLY J. SCHULTE SETH P. WAXMAN
SHILEE T. MULLIN Counsel of Record
FREDERICKS PEEBLES & ETHAN G. SHENKMAN

MORGAN LLP DEMIAN S. AHN
3610 North 163rd Plaza WILMER CUTLER PICKERING
Omaha, NE 68116 HALE AND DORR LLP
(402) 333-4761 1875 Pennsylvania Ave., NW

Washington, DC 20006
(202) 663-6000

QUESTIONS PRESENTED

1. Whether Section 5 of the Indian Reorganiza-
tion Act of 1934, 25 U.S.C. § 465, is an unconstitutional
delegation of legislative power to the Secretary of the
Interior.

2. Whether the Court should hold this case pend-
ing the resolution of Carcieri v. Kempthorne, No. 07-
526, for possible remand to the court of appeals on a
question that has never been properly presented in this
case and was not considered by either court below.

(1)

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED .n.. The Match-E-Be-Nash-She-Wish Band of Potawatomi Indi-
ans is now the only federally-recognized Indian Tribe in Michigan
that does not have reservation or federally-protected trust lands.
All eleven of the other federally-recognized Indian Tribes in
Michigan currently operate (or are in the process of constructing)
casinos pursuant to tribal-state gaming compacts. See http://
www.michigan.gov/mgceb/0,1607,7-120-1380_1414 2182---,00.html
(last visited Dec. 5, 2008). The tribes operating casinos under
those compacts annually pay tens of millions of dollars in revenues
to the State and to local governments. See http://www-michi-
gan.gov/mgeb/0,1607,7-120-1380_1414_2182-11370--,00.htm! (last
visited Dec. 5, 2008).

6

duct full casino gaming on the land at issue; and the
compact is pending ratification in the Michigan Senate.’

3. The Secretary approved the Tribe’s request on
May 18, 2005, after a lengthy administrative process.
See 70 Fed. Reg. 25,596 (May 13, 2005) (Notice Of Final
Agency Determination). On June 13, 2005, petitioner
filed this action in the U.S. District Court for the Dis-
trict of Columbia. The complaint asserted that the Sec-
retary’s decision to accept land into trust viclated the
National Environmental Policy Act (42 U.S.C. §§ 4321
et seq.) and the Indian Gaming Regulatory Act (25
U.S.C. § 2719), and that the statute authorizing the
Secretary’s action (Section 5 of the IRA) was an uncon-
stitutional delegation of legislative power. Petitioner’s
complaint was not supported by any state or local gov-
ernment. In fact, the local government that has juris-
diction over the land at issue filed an amicus brief sup-
porting the Tribe. Joint Amicus Curiae Brief of Way-
land Township, et al., Michigan Gambling Opposition
v. Norton, No. 05-CV-01181 (D.D.C. Jan. 19, 2006). Af-
ter more than twenty months of litigation delay, the
district court rejected all of petitioner’s claims and dis-
missed the complaint on February 23, 2007. Pet. App.
83-84.

* The compact includes, pursuant to IGRA, provisions regard-
ing “the application of the criminal and civil laws and regulations of
the Indian tribe or the State” on the land at issue. 25 U.S.C.
§ 2710(d)(3)(C)(i).. The Tribe has also concluded agreements with
state and local governments concerning law enforcement, emer-
gency services, and taxes. See CAJA 119, 121; http://www.michi-
gan.gov/taxes/0,1607,7-238-43513_43517---,00.htm] (last visited
Dec. 5, 2008).

7

4. Petitioner appealed, raising only its NEPA and
nondelegation claims. Four months after oral argu-
ment, more than six months after briefing was com-
pleted, and shortly after this Court denied review on
the Section 5 nondelegation question in Carcieri v.
Kempthorne, 128 S. Ct. 1448 (2008), petitioner asked
the court of appeals to “supplement the issues” in this
case with the question on which the Court granted re-
view in Carcieri: How to construe the definition of “In-
dian tribe” in Section 19 of the IRA, which refers to
members of “any recognized Indian tribe now under
Federal jurisdiction.” See id. (argued Nov. 3, 2008).
The court of appeals rejected petitiorer’s request and
declined to consider the untimely-raised Carcieri issue.
Order, Michigan Gambling Opposition v. Kempthorne,
No. 07-5092 (D.C. Cir. Mar. 19, 2008).

On April 29, 2008, the court of appeals affirmed the
dismissal of petitioner’s complaint. Pet. App. 3. In re-
jecting petitioner’s nondelegation claim, the court ob-
served that Section 5 is “no broader than other stat-
utes, which the Supreme Court has upheld” against
such challenges. Jd. at 14. It reasoned that the IRA
supplies an “intelligible principle” to guide the Secre-
tary’s discretion because, in acquiring land “for the
purpose of providing land for Indians,” the Secretary
must “exercise his powers in order to further economic
development and_ self-governance” among Indian
Tribes. Jd. at 15. Accordingly, Section 5 “is not an un-
constitutional delegation of legislative authority.” Jd.
at 3, 20. Judge Brown dissented from the court’s deci-
sion.

Petitioner sought en banc rehearing on its nondele-
gation claim, and on its belated Carcieri claim. The full
court rejected that petition on July 25, 2008 (Pet. App.
85-86), after requesting a response from the United

8

States and the Tribe on the nondelegation question, but
not on the Carcieri issue. Order, Michigan Gambling
Opposition v. Kempthorne, No. 07-5092 (D.C. Cir. May
20, 2008).”

REASONS FOR DENYING THE PETITION

1. Petitioner seeks review of its claim that Sec-
tion 5 of the IRA violates the nondelegation doctrine.
That question is properly presented, but it does not
warrant review.

a. This Court has considered petitions for certio-
rari on this same issue three times over the past three
years. It has denied review every time, most recently
in Carcieri v. Kempthorne, 128 8S. Ct. 1443 (2008)
(granting certiorari but limiting review to exclude non-
delegation challenge to Section 5). See also South Da-
kota v. Department of Interior, 549 U.S. 8138 (2006) (de-
nying certiorari); Utah v. Shivuits Band of Paiute In-
dians, 549 U.S. 809 (2006) (same). There is no reason

>The district court had stayed its judgment in favor of the
Secretary and the Tribe pending resolution of proceedings in the
court of appeals. See Order, Michigan Gambling Opposition v.
Norton, No. 1:05-CV-01181 (D.D.C. Mar. 5, 2007). After the court
of appeals affirmed and rehearing was denied, petitioner moved to
stay that court’s mandate pending the filing and disposition of a
petition for certiorari. Over the opposition of the Tribe and the
United States, the court of appeals granted a stay, without expla-
nation, on August 15, 2008. See Order, Michigan Gambling Oppo-
sition v. Kempthorne, Case No. 07-5092 (D.C. Cir. Aug. 15, 2008)).
The Chief Justice denied the Tribe’s application (unopposed by the
United States) to vacate the stay. Order, Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians v. Michigan Gambling Oppo-
sition, No. 08-A184 (Sept. 3, 2008). The Secretary is thus effec-
tively precluded from acquiring the land in trust until the present
petition is denied.

9

for a different result here—especially in light of the fact
that the State of Michigan has never objected to the
proposed trust acquisition in this case, and the local
government with jurisdiction over the land has actively
supported the Secretary’s decision. See Joint Amicus
Curiae Brief of Wayland Township, et al., Michigan
Gambling Opposition v. Norton, Case No. 05-CV-01181
(D.D.C. Jan. 19, 2006).

b. There is no circuit conflict on the nondelegation
question. To the contrary, every court of appeals—and
every district court—that has resolved a nondelegation
challenge to Section 5 has upheld the statute. See Car-
cieri v. Kempthorne, 497 F.3d 15, 41-4- (1st Cir. 2007)
(en banc), cert. denied on this question, 128 S. Ct. 1443
(2008); Shivwits Band of Paiute Indians v. Utah, 428
F.3d 966, 972-974 (10th Cir. 2005), reaffirming United
States v. Roberts, 185 F.3d 1125, 1136-1187 (10th Cir.
1999); South Dakota v. Department of Interior, 423
F.3d 790 (8th Cir. 2005) (“South Dakota IT’); Sauk
County v. Department of Interior, No. 07-CV-543, 2008
WL 2225680, at *4 (W.D. Wis. May 29, 2008); City of
Lincoln City v. Department of Interior, 229 F. Supp. 2d
1109, 1128 (D. Or. 2002).

Petitioner suggests a conflict based on one decision
that was vacated twelve years ago, and one case that
involved irrelevant questions under the Administrative
Procedure Act (APA). First, petitioner relies on South
Dakota v. Department of Interior, 69 F.3d 878 (8th Cir.
1995) (“South Dakota I’). That decision was vacated by
this Court, 519 U.S. 919 (1996), has no precedential
value, and has since been rejected by the Eighth Cir-
cuit itself. See South Dakota II, 423 F.3d 790. Second,
petitioner quotes out-of-context dicta from Florida De-
partment of Business Regulation v. Department of In-
terior, 768 F.2d 1248, 1256 (11th Cir. 1985). But the is-

10

sue in that case was whether decisions under Section 5
of the IRA and related regulations at 25 C.F.R. pt. 151
were “committed to agency discretion by law” under
the APA, 5 U.S.C. § 701(a)(2), not whether Section 5
itself violated the nondelegation doctrine. Florida De-
partment of Business Regulation, 768 F.2d at 1255-
1257.

c. Inany event, the decision below is correct. The
only “question [in a nondelegation challenge] is whether
the statute has delegated legislative power,” Whitman
v. American Trucking Ass’ns, Inc., 581 U.S. 457, 472
(2001), and this Court has made clear that only the most
sweeping delegations will fail that test. See, e.g., id. at
474-475 (“[W]e have almost never felt qualified to sec-
ond-guess Congress regarding the permissible degree
of policy judgment that can be left to those executing or
applying the Jaw.”) (quotations omitted). So long as
Congress establishes an “intelligible principle” to guide
the implementing agency in administering the statute,
even a broad delegation of regulatory power will be
sustained. Touby v. United States, 500 U.S. 160, 165
(1991).

Section 5 of the IRA provides such an intelligible
principle. The statute expressly limits land acquisitions
to those that serve the “purpose of providing land for
Indians,” specifies the means by which land may be ac-
quired (i.e., consensually), and subjects acquisitions by
purchase to a limited authorization and the further
oversight of the appropriations process. 25 U.S.C.
§ 465. The purposive limitation by itself is sufficient to
satisfy the constitutional requirement because, as the
court of appeals held, it requires the Secretary “to ex-
ercise his powers in order to further economic devel-
opment and self-governance among the Tribes.” Pet.
App. 15; see also Carcieri, 497 F.3d at 41-43; Shivwits,

11

428 F.3d at 972-974; South Dakota II, 423 F.3d at 797-
798. That guide for the exercise of the Secretary’s au-
thority is at least as clear as an agency’s determination
of what is “fair” or “equitable” (American Power &
Light Co. v. SEC, 329 U.S. 90, 104 (1946); Yakus v.
United States, 321 U.S. 414, 420, 423-426 (1944)) or “in
the public interest” (National Broad. Co. v. United
States, 319 U.S. 190, 225-226 (1943); New York Cent.
Sec. Corp. v. United States, 287 U.S. 12, 24-25 (1932)).

Moreover, Section 5 of the IRA does not authorize
the Secretary to make any law; to promulgate any rule
restricting private conduct; to compel any act; or to im-
pose any tax—and its limited author.zation for pur-
poses of land acquisition pales in comparison to general
appropriations this Court has upheld without particular
scrutiny under the nondelegation doctrine. See, e.g.,
Cincinnati Soap Co. v. United States, 301 U.S. 308, 322
(1937) (“Appropriation and other acts of Congress are
replete with instances of general appropriations of
large amounts, to be allotted and expended as directed
by designated government agencies. ... The constitu-
tionality of this delegation of authority has never been
seriously questioned.”).°

° As the Tribe argued below (Tribe Appeal Br. 47-49), it is not
clear why the “intelligible standards” requirement should even
apply to a statute such as Section 5, which does not delegate any
lawmaking or rulemaking power at all. The Court has rarely dis-
cussed the nondelegation doctrine outside the rulemaking context,
and when it has it has dispatched the issue quickly. See, e.g., Cin-
cinnati Soap, 301 U.S. at 322; Clinton v. City of New York, 524
US. 417, 466-467 (1998) (Scalia, J., dissenting) (“From a very early
date Congress also made permissive individual appropriations,
leaving the decision whether to spend the money to the Presi-
dent’s unfettered discretion. ... The constitutionality of such ap-
propriations has never seriously been questioned).

12

d. The dissenting opinion below provides no basis
for granting certiorari. Pet. App. 20-31. The dissent
asserts that the limiting purpose of Section 5 cannot be
“derived from the text of the [statute],” and that the
statute is “tautological” and devoid of meaning. Id. at
28.’ But the dissent reached that conclusion only by
abandoning traditional rules of statutory interpreta-
tion. Section 5 limits the Secretary’s authority to land
acquisitions which serve “the purpose of providing
lands for Indians.” The text of that provision must be
interpreted in light of the historical context in which
Section 5 was enacted; the surrounding statutory text
and the text and structure of the statute as a whole;
longstanding precedent construing the purposes behind
the IRA; and the rule that statutes should be construed
to avoid constitutional questions. See, e.g., American
Power & Light, 329 U.S. at 104 (“the statutory lan-
guage may derive content from the purpose of the
[statute], its factual background and statutory con-
text.”) (quotations omitted); Mistretta v. United States,
488 U.S. 361, 373 n.7 (1989) (noting cases which nar-
rowly construed statutes to avoid or reject nondelega-
tion challenges). The court of appeals properly inter-
preted Section 5 in light of these principles, and cor-

’ Petitioner and the dissent err in asserting that federal
courts have “consistently” interpreted Section 5 of the IRA to
provide “unfettered discretion” (Pet. 12, 18; Pet. App. 28, 31) that
“encompasses any possible acquisition” (id.). Every court con-
fronted with a nondelegation challenge to Section 5 has concluded
otherwise. See, e.g., Carcieri, 497 F.3d at 41-43; Shivunts, 428 F.3d
at 972-974; South Dakota II, 423 F.3d at 797-798; Roberts, 185 F.3d
at 1186-1137; Sauk County, 2008 WL 2225680, at *4; Lincoln City,
229 F. Supp. 2d at 1128.

13

rectly concluded that there is nothing tautological
about it. Pet. App. 15.

2. Petitioner also seeks review of a question that
it improperly attempted to raise at the eleventh hour
below—namely, whether the Tribe and its members
are “Indians” and an “Indian tribe” under the defini-
tions set out in Section 19 of the IRA, 25 U.S.C. § 479.
The court of appeals twice recognized that petitioner
waived that claim by failing to raise it until after this
Court granted review of a similar question in Carci-
eri—well after the appeal in this case was briefed and
argued. First, the court of appeals denied petitioner’s
motion to supplement the issues on zppeal after oral
argument. Order, Michigan Gambling Opposition v.
Kempthorne, Case No. 07-5092 (D.C. Cir. Mar. 19,
2008). Second, the court rejected petitioner’s request
for rehearing en banc without requesting a response on
this issue. See Order, Michigan Gambling Opposition
v. Kempthorne, No. 07-5092 (D.C. Cir. May 20, 2008)
(requesting response on the nondelegation question,
but not on the Carcieri issue).

* The courts, in any event, lack jurisdiction to consider peti-
tioner’s statutory claim, as petitioner’s alleged injuries fall outside
of, and indeed are directly inconsistent with, the “zone of inter-
ests” protected by the IRA. Clark v. Securities Indus. Ass’n, 479
U.S. 388, 399 (1987) (“if the [party’s] interests are marginally re-
lated to or inconsistent with the purposes implicit in the statute,”
it will not have prudential standing to bring a claim under the Ad-
ministrative Procedures Act). See, e.g., City of Sault Ste. Marie v.
Andrus, 458 F. Supp. 465, 468 (D.D.C. 1978) (no standing under
Section 5 of the IRA for private non-Indian taxpayers); Western
Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1054 (10th Cir.
1993) (no standing for private law firm to challenge Secretary’s
decision not to review a contract under 25 U.S.C. § 81).

14

There is no reason for this Court to depart from its
ordinary practice and consider an issue that was nei-
ther timely raised in nor addressed by the courts be-
low. See, e.g., Auer v. Robbins, 519 U.S. 452, 464 (1997)
(declining to consider argument that was “inadequately
preserved in the prior proceedings”); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 147 n.2 (1970) (“Where issues
are neither raised before nor considered by the Court
of Appeals, this Court will not ordinarily consider
them.”); accord Zobrest v. Catalina Foothills Sch.
Mist., 509 U.S. 1, 8 (1998); Rogers v. Lodge, 458 U.S.
618, 628 n.10 (1982).”

Petitioner seeks to avoid that result by invoking
cases that involved exceptional circumstances (not pre-
sent here), where this Court excused parties for failing
to timely raise arguments that had previously been “fu-
tile’ because they were contrary to established prece-
dent. See, e.g., Standard Indus., Inc. v. Tigrett Indus.,
Inc., 397 U.S. 586, 587 (1970) (allowing previously “fu-
tile” argument to be raised after contrary precedent
had been “specifically overruled”); Curtis Pub. Co. v.
Butts, 388 U.S. 130, 144 (1967) (excusing failure to
timely raise issue in light of previous “strong prece-
dent” that civil libel actions were immune from consti-

” ‘There is likewise no justification for holding the present pe-
tition pending this Court’s decision in Carcieri. Even if this case
were returned to the court of appeals after a decision in Carcieri,
ordinary waiver principles would preclude petitioners from ad-
vaneing in that court a claim they first raised after oral argument
on appeal. See Hussain v. Nicholson, 435 F.3d 359, 364 (D.C. Cir.
2006) (declining to hear arguments raised for the first time on ap-
peal); Worldwide Moving & Storage, Inc. v. District of Columtia,
445 F.3d 422, 427 n.7 (D.C. Cir. 2006) (declining to hear arguments
raised for the first time after oral argument).

15

tutional scrutiny). Those cases are inapposite. Peti-
tioner’s argument in this case is based on statutory lan-
guage that has not changed during the course of these
proceedings, and there was no established precedent in
this Court or the court of appeals that would have made
the argument legally futile in the district court or the
court of appeals.'°

In any event, even if the Court accepts petitioner’s
statutory argument in Carcieri, the Tribe in this case
was a “recognized Indian tribe ... under Federal juris-
diction” (25 U.S.C. § 479) when the IRA was enacted in
1934. The administrative record demonstrates that the
Tribe was recognized by the United States no later
than 1821, when it signed a treaty granting it a federal
reservation near Kalamazoo (see 62 Fed. Reg. 38,113),
and that the Tribe’s federally-recognized status has
never been lawfully terminated (7d. at 38,114; see also
63 Fed. Reg. 56,936, affirming proposed findings).

'0 Indeed, by the time petitioner filed its complaint in this
case, the plaintiffs in Carcieri had been arguing the IRA Section
19 issue for several years, producing at least two published deci-
sions of which petitioner presumably (see Pet. 29) was aware. See
Carcieri v. Norton, 290 F. Supp. 2d 167, 172, 178-181 (D.R.1. 2003),
aff'd, 398 F.3d 22, 29-32 (1st Cir. 2005), superseded on rehearing,
423 F.3d 45, 53-56 (1st Cir. 2005); superseded on rehearing en banc
Carcieri v. Kempthorne, 497 F.3d 15, 41-43 (2007). Moreover, the
Carciert plaintiffs relied heavily on dictum that they claimed sup-
ported their position from this Court’s decision two decades ago in
United States v. John, 487 U.S. 634, 649 (1978) (dicta referring to
“1934”):; see also United States v. Tax Comm'n, 505 F.2d 633 (5th
Cir. 1974) (“tribal status is to be determined as of June, 1934”).
Petitioner may have decided for strategic reasons not to raise the
issue in this case, but the Section 19 argument was no more un-
available here than it was in Carciern itself.

16

Petitioner’s argument depends on a distortion of
the record, along with statements taken out of context
from briefing that did not address issues under Section
19 of the IRA. For example, petitioner asserts that the
“BIA determined conclusively that the Tribe’s federal
acknowledgement ceased in 1870.” Pet. 7. That is
wrong. As the BIA expressly explained, it chose 1870
as the last date of “unambiguous Federal acknowledg-
ment” (CAJA 1791) solely for purposes of defining the
temporal scope of its analysis under 25 C.F.R. 83.8 (cer-
tain recognition criteria to be analyzed from date of last
unambiguous feceral acknowledgment to the present),
and “[t]he use of the 1870 date ... in these reports is
not to be regarded as a determination by BIA that un-
ambiguous Federal acknowledgement of the [Tribe’s/
antecedent group ceased at that date.” CAJA i791
(emphasis added)."’

Petitioner’s belated attempt to use a petition for
discretionary review in this Court to interject a new
issue into a case that has already been fully litigated, at
great cost to the Tribe and the United States, lacks
both justification and merit and should be rejected.

'''The statement petitioner highlights (Pet. 7) from the
Tribe’s appellate brief was not directed to whether, as of 1934, it
was a “recognized Indian tribe ... under federal jurisdiction,” 25
U.S.C. § 479, precisely because petitioner had never raised any
question concerning the Tribe’s IRA status during the briefing on
appeal. The Tribe’s statement reflects the diminished federal
benefits the Tribe received from the BIA after its last annuity
payments in 1870. See 62 Fed. Reg. 38,113; CAJA 1772 (noting
cessation of annuity payments in 1870). As noted above (see pp. 4-
5, 15-16), however, the Tribe’s status was never lawfully termi-
nated—in fact, the BLA expressly confirmed that the Tribe’s legal
status and relationship to the United States, dating back at least
to 1821, were never terminated by Congress. 62 Fed. Reg. 38,114.

17

CONCLUSION
The petition for a writ of certiorari should be de-
nied.

Respectfully submitted.
CONLY J. SCHULTE SETH P. WAXMAN
SHILEE T. MULLIN Counsel of Record
FREDERICKS PEEBLES & ETHAN G. SHENKMAN

MORGAN LLP DEMIAN S. AHN

3610 North 163rd Plaza WILMER CUTLER PICKERING
Omaha, NE 68116 HALE AND DORR LLP
(402) 333-4761 1875 Pennsylvania Ave., NW

Washington, DC 20006
(202) 663-6000

DECEMBER 2008

OPPOSITION
BRIEF

No. 08-554

Jn the Supreme Court of the United States

MICHIGAN GAMBLING OPPOSITION, PETITIONER
Vv.

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR,
ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

GREGORY G. GARRKE
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General

AARON P. AVILA
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether Section 5 of the Indian Reorganization
Act, 25 U.S.C. 465, is an unconstitutional delegation of
legislative authority to the Secretary of the Interior.

2. Whether the Indian Reorganization Act, 25
U.S.C. 461 £ seq., authorizes the Secretary of the Inte-
rior to take land into trust on behalf of an Indian tribe
that was not a recognized Indian tribe under federal
jurisdiction on June 18, 1934, the date on which that
statute was enacted.

1 ABLE Gre UUSTENISTS

Page
SE Oe oT Peer er eo tee eee ee eee l
REECE TST ORT EET PEROT E CECE T TEE TEE 1
EE rn ee a ee er) ar res Pe
rat an eae se ae CARES AERTS OER VEE EE Ss 5
Ss os och pe eineees ances Peay ia 34 as 998 14
TABLE OF AUTHORITIES
Cases:
Acknowledginent of Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians, In ve, 33 1.B.1.A.
ce sa ee Coe ita eh Pie sans ces ees 3
American Power & Light Co. v. SEC, 329 U.S. 90
Ra RS Oe ee ey ee ee ee 8,9
Auer v. Robbins, 519 U.S. 452 (1997) ................ 12
Bray v. Alexandria Women’s Health Clinic,
Pe A AD oo on iv hes de Verde Ree eenc neers 12
Carcieri v. Kenupthorne:
Se A ED ob hace Sede ede cavers sey eeivn 4,5
497 F.3d 15 (1st Cir. 2007), cert. granted in part,
oe ee | ee rrr a en ree 6
Cass County v. Leech Lake Band of Chippewa
Imtaies, 524. US. TOD CISGR) .. . wc. ee ec c ee cnees 7
City of Sherrill v. Oneida Indian Nation,
oS eg Ee ee eee 7, 8, 10
County of Yakima v. Confederated Tribes & Bands of
the Yakima Indian Nation, 502 U.S. 251 (1992) ...... 7
Fahey v. Mallonee, 332 U.S. 245 (1947) .... .9
Federal Radio Comi'nv. Nelson Bros. Bond &
Mortgage Co. , 289 US. 266 (1938)... enc cc ec cec ccs: 9

(ITT)

IV

Cases—Continued: Page
Florida Dep't of Bus. Regulation v. United States

Dep't of the Interior, 768 F.2d 1248 (1ith Cir.

1985), cert. denied, 475 U.S. 1011 (1986) ............. 6
Hagen v. Utah, 510 U.S. 399 (1994) ..... 0.0... .0 eee ees 10
J.W. Hampton, Jr., & Co. v. United States,

og 0 Sn ee 8
Lichter v. United States, 334 U.S. 742 (1948) ............ 9
Mescalero Apache Tribe v. Jones, 411 U.S. 145

By PRR eer en re 7,9, 11
Mistretta v. United States, 488 U.S. 361 (1989) .......... 8
Morton v. Mancari, 417 U.S. 535 (1974)... 2.2.02... 10, 11
New Mexico v. Mescalero Apache Tribe,

A NN ik See vicew none vinciscess 10, 11
O'Connor v. Donatdsoit, 422 U.S. 563 (1975) «2.2.2... ee. 6
Shivwits Band of Paiute Indians v. Utah, 428 F.3d

966 (10th Cir. 2005), cert. denied, 549 U.S. 809

te RR per er Ee ee en ae 6
South Dakota v. United States Dep't of the Interior:

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

Ce SPREE ons v ic ecess bese drawer eeersess 6

423 F.3d 790 (8th Cir. 2005), cert. denied, 549 U.S.

PCE aie we of the ek ou kere kak teks 6

GST FOG GEE Bn Cir. F007) . . ow. ccc ccs cesses cccas 6
Touby v. United States, 500 U.S. 160 (1991) ............, 8
United States v. Roberts, 185 F.3d 1125 (10th Cir.

1999), cert. denied, 529 U.S. 1108 (2000) ............. 6
Washington v. Coifederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) ............ 11

Cases—Continued: Page
White Mountain Apache Tribe v. Bracker,
ai ee is vie ew eras exeresveces 10
Whitman v. American Trucking Ass ‘ns,
ek | 6, 8
Statutes and regulations:
Indian Gaming Regulatory Act, 25 U.S.C. 2701
eet Ree eas anys an Kiev ep se everens ou nen 2
Indian General Allotment Act, ch. 119, 24 Stat. 388 ..... 10
Indian Land Consolidation Act, 25 U.S.C. 2201
tS 7
Indian Reorganization Act, ch. 576, Pmbl.,
Ee 10
Indian Reorganization Act, 25 U.S.C. 461 ef seg. ........ 1
a 10
ee 10
25 U.S.C. 463(a) 2... cece ce cee eee 10
EE oR re 10
EE 8) |) passim
me Us. 4 ........... .10
0 .10
ks, ae 10
8 te > A 10
25 U.S.C. 476 10
25 U.S.C. 477 .. . 10
Indian Reorganization Act Amendmerts of 1988,
Pub. L. No. 100-581, § 101, 102 Stat. 2938 . 7

VI

oirditives ana rey uraclotis—-WT offuntiea, * rape

Indian Reorganization Act Amendments of 1990,

Pub. L. No. 101-301, § 3(b)-(c), 104 Stat. 207.......... 7
Indian Reorganization Act Amendments of 1994,
Pub. L. No. 108-263, § 5(b), 108 Stat. 709 ............ 7
National Environmental Policy Act of 1969,
eee esd bs Gases sseccesseses 2
25 C.F.R. :
REE ee 13
a 13
Utne cess etocceoeseeenees 2
EE 8
ee ey ys oe 04s obs x ees 8 8
Section 151.10(g) ...... ee a ee 8

Miscellaneous:

ME CRUNED os cccrovcessesevescvesese 13
GS POG. MOG. GE.GGG(IOGS) ... nce cccccsvcecvcceons 3, 13
H.R. Rep. No. 1804, 73d Cong., 2d Sess. (1934) ....... 9,11

S. Rep. No. 1080, 73d Cong., 2d Sess. (1934) ........... 1]

In the Supreme Court of the Anited States

No. 08-554
MICHIGAN GAMBLING OPPOSITION, PETITIONER
Vv,

DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR,
ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-35)
is reported at 525 F.3d 23. The opinion of the district
court (Pet. App. 36-84) is reported at 477 F. Supp. 2d 1.

JURISDICTION

The judgment of the court of appeals was entered on
April 29, 2008. A petition for rehearing was denied on
July 25, 2008 (Pet. App. 85-86). The petition for a writ
of certiorari was filed on October 23, 2008. The jurisdic-
tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

In the Indian Reorganization Act (IRA), 25 U.S.C.
461 et seg., Congress authorized the Secretary of the

+

iJ

2

Tnterior (Seeretarv) to aganire “any interest in lands
water rights, or surface rights to lands, within or with-
out existing reservations, * * * for the purpose of pro-
viding land for Indians.” 25 U.S.C. 465. The Depart-
ment of the Interior exercises that authority in accor-
dance with regulations found at 25 C.F.R. Pt. 151. In
2005, the Assistant Secretary for Indian Affairs ap-
proved the application of the Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians (Band) to have the
Department of the Interior acquire 147 acres of land in
Michigan in trust for the Band’s benefit. Pet. App. 2.

Petitioner filed suit alleging that the Secretary’s de-
cision violated the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4321 et seg., and the Indian
Gaming Regulatory Act (IGRA), 25 U.S.C. 2701 et segq.,
and that Section 5 of the IRA, 25 U.S.C. 465, is unconsti-
tutional. Pet. App. 6-7. The district court rejected peti-
tioner’s claims, 1d. at 36-84, and the court of appeals
affirmed, zd. at 1-35.

1. The Band descends from a band of Pottawatomi
Indians, led by Chief Match-E-Be-Nash-She-Wish, who
resided near present-day Kalamazoo, Michigan. Pet.
App. 3. Under the terms of the 1821] Treaty of Chicago,
signed by Chief Match-E-Be-Nash-She-Wish, the Band
secured a three-square-mile tract of land at Kalamazoo.
C.A. App. 1790, 1795. But the Band became landless in
the middle of the Nineteenth Century. Pet. App. 3.

As part of its efforts to avoid being forcibly removed
west of the Mississippi, the Band placed itself under the
protection of a church mission in central Michigan. Pet.
App. 3. In 1894, the mission land was divided into par-
cels and deeded to descendants of the original Band, but
within a few years most of that land was lost through tax
foreclosures. /bid.; C.A. App. 1746-1747. Despite the

3

loss of the land, a majority of the Band’s members re-
mained in the vicinity of the church mission. Pet. App.
3.

In 1998, the Band secured federal acknowledgment
pursuant to the Department of the Interior’s regulations
(25 C.F.R. Pt. 83). See 63 Fed. Reg. 56,936 (1998); Jn re
Acknowledgment of Match-E-Be-Nash-She-Wish Band
of Pottawatomi [ndians, 33 I.B.1.A. 291 (1999). In 2001,
the Band submitted an application to the Secretary to
acquire 147 acres of Jand in trust for the Band pursuant
to the Secretary’s authority in Section 5 of the IRA, 25
U.S.C, 465. Pet. App. 40. That property, known as the
Bradley property, is located in an area of Michigan to
which the Band has long historical, geographical, and
cultural ties. 7d. at 4; C.A. App. 1611. The Band applied
for the land to be acquired in trust so that it could con-
duct gaming on the property to generate revenue neces-
sary to promote tribal economic development, self-suf-
ficiency, and a strong tribal government capable of pro-
viding its members with sorely needed social and educa-
tional programs. Pet. App. 4; C.A. App. 1742; see also
id. at 1614. In 2005, the Assistant Secretary issued a
decision to take the land into trust. Pet. App. 2.

2. Petitioner filed this lawsuit, asserting four claims
challenging the Secretary's decision to take the land into
trust: a NEPA claim, two IGRA claims, and a claim that
the IRA provision granting the Secretary authority to
acquire land in trust was an unconstitutional delegation
of legislative authority. Pet. App. 6-7.

The district court rejected each of petitioner's
claims. Pet. App. 36-84. The court held that the Secre-
tary’s approval of the Band’s application to have the
land taken in trust complied with NEPA and IGRA. Jd

4

at 44-75. The court also rejected petitioner’s nondelega-
tion claim. Jd. at 79-83.

3. Petitioner appealed, raising only the NEPA and
nondelegation claims, Pet. App. 2-3, and abandoning the
IGRA claims, id. at 7. More than four months after the
court of appeals heard ora] argument, and over two and
a half years after petitioner had filed its complaint initi-
ating this suit, petitioner moved in the court of appeals
to supplement the issues on appeal so that it could raise
for the first time the question “[w]Jhether the Indian Re-
organization Act of 1934 empowers the Secretary to
take land into trust for the [Band], when the Band was
not recognized and under federal jurisdiction in 1934.”
07-5092 Mot. of Pl.-Appellant to Supp. Issues for Review
6 (D.C. Cir. filed Mar. 7, 2008). Petitioner filed that mo-
tion shortly after this Court, in a different case, granted
review of a similar question and did not grant review of
the nondelegation question. Carciert v. Kempthorne,
128 S. Ct. 1443 (2008) (No. 07-524) (argued Nov. 3, 2008).
The court of appeals denied petitioner’s motion to sup
plement the issues on appeal. 07-5092 Order (D.C. Cir
Mar. 19, 2008).

The court of appeals subsequently affirmed the dis
trict court’s judgment. Pet. App. 1-35. As relevant here,
the court rejected petitioner’s claim that Section 5 of the
IRA is an unconstitutional delegation of legislative au-
thority to the Secretary. Jd. at 12-20. The court ex-
plained that the delegation in Section 5 is “no broader
than other statutes” that this Court has upheld in the
face of nondelegation challenges. /d. at 14. The court
held that “the statute provides an intelligible principle”:
the Secretary is “to exercise his powers in order to fur-
ther economic development and self-governance among
the Tribes.” Jd. at 15.

5

Judge Brown dissented in part. Pet. App. 20-35. She
would have heid that Section 5 is an unconstitutional
delegation of legislative authority. /bid.

4. Petitioner sought rehearing en banc on the non-
delegation claim as well as the claim that it had belat-
edly attempted to raise concerning the Band’s status in
1934. The court of appeals ordered a response only on
the nondelegation issue. 07-5092 Order (D.C. Cir. May
20, 2008). The court denied rehearing en banc, with
three judges noting that they would have granted en
banc review. Pet. App. 85-86.’

ARGUMENT

1. Petitioner argues (Pet. 14-28) that this Court
should grant certiorari to consider whether Section 5 of
the IRA, 25 U.S.C. 465, is an unconstitutional delegation
of Congress's legislative power. The Court has repeat-
edly denied certiorari in other cases raising that ques-
tion, and it again declined review earlier this year. See
Carcieri v: Kempthorne, 128 S. Ct. 1443 (2008) (limiting
grant of certiorari to “Questions 1 and 2 presented by
the petition”). The result here should be the same.

a. Petitioner's claim (Pet. 19) that there is a “(clJir-
cuit [cJonflict” is incorrect. Each of the courts of ap-
peals that has considered a constitutional challenge to
Section 5 on nondelegation grounds—whether before or

' In the district court, petitioner obtained a stay of the Secretary's
trust acquisition based on its NEPA and [GRA claims. Petitioner did
not assert its nondelegation claim as a basis for a stay. C.A. App. 368
n.2. On petitioner's motion, and over the opposition of the federal! re-
spondents and the Band, the court of appeals stayed its mandate pend-
ing disposition of this petition for certiorari, thereby maintaining the
district court’s stay. Pet. App. 87-88. The Chief Justice denied the
Band's application to vacate the court of appeals’ stay of its mandate.
Td. at 89.

6

after this Court’s decision in Whitman v. American
Trucking Ass'ns, 531 U.S. 457 (2001)—has upheld the
statute’s constitutionality. Carcieri v. Kempthorne, 497
F.3d 15, 41-43 (1st Cir. 2007) (en banc), cert. granted on
other grounds, 128 S. Ct. 1443 (2008); South Dakota v.
United States Dep't of the Interior, 423 F.3d 790, 797
(8th Cir. 2005), cert. denied, 549 U.S. 813 (2006);
Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966,
972-974 (10th Cir. 2005), cert. denied, 549 U.S. 809
(2006); United States v. Roberts, 185 F.3d 1125, 1137
(10th Cir. 1999), cert. denied, 529 U.S, 1108 (2000). Al-
though petitioner relies (Pet. 4, 19-21) on the Eighth Cir-
cuit’s decision in South Dakota v. United States Depart-
ment of the Interior, 69 F.3d 878 (1995), that decision
was vacated and remanded by this Court, 519 U.S. 919
(1996). A decision that has been vacated by this Court
has no “precedential effect,” O'Connor v. Donaldson,
422 U.S. 563, 578 n.12 (1975), and thus cannot establish
a circuit conflict. Moreover, it is well settled in the
Eighth Circuit that Section 5 of the IRA does not violate
the nondelegation doctrine. South Dakota v. United
States Dep't of the Interior, 487 F.3d 548, 551 (8th Cir.
2007); South Dakota, 423 F.3d at 797. There is thus no
conflict for this Court to resolve.*

b. Nor is the issue one otherwise warranting the
Court's review despite the unanimity of the courts of
appeals in sustaining Section 5. Tie statutory provision
that petitioner seeks to have invalidated was enacted
more than 70 years ago, and since that time it has be-

* Petitioner also claims (Pet. 21) that the supposed “conflict” includes
the Eleventh Circuit's decision in Florida Department of Business
Regulation v. United States Department of the Interor, 768 F.2d 1248
(1985), cert. denied, 475 U.S. 1011 (1986). But, as petitioner concedes
(Pet. 21), that decision did not “resolv[e] a nondelegation challenge.”

7

come embedded in the practical, day-to-day administra-
tion of Indian affairs. For seven decades, Section 5 of
the IRA has provided the primary mechanism for the
federal government to restore and replace tribal lands.
Congress has, moreover, often revisited and amended
the IRA, even after the Secretary’s promuigation of
land-acquisition regulations, without expressing any
disagreement with the Secretary’s understanding of the
statutory policies that are to guide his determinations.”

Similarly, this Court has considered Section 5 on nu-
merous occasions and has explained that, along with its
implementing regulations, it “provides the proper ave-
nue” for a tribe “to reestablish sovereign authority over
{lost) territory.” City of Sherrill v. Oneida Indian Na-
tion, 544 U.S. 197, 220-221 (2005); see also Cass County
v. Leech Lake Band of Chippewa Indians, 524 U.S. 103,
114 (1998) (noting that, in Section 5, Congress granted
the Secretary “authority to place land in trust, to be
held by the Federal Government for the benefit of the
Indians,” and “explicitly set forth a procedure by which
lands held by Indian tribes may become tax exempt”);
County of Yakima v. Confederated Tribes & Bands of
the Yakima Indian Nation, 502 U.S. 251, 255 (1992).
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 155-159
(1973).

At root, petitioner's argument represents a disagree-
ment with longstanding principles embodied in the IRA
and numerous other statutes that govern Indian lands

* See Indian Reorganization Act Amendments of 1994, Pub. L. No.
103-263, § 5(b), 108 Stat. 709; Indian Reorganization Act Amendments
of 1990, Pub. L. No. 101-301, § 3(b)-{c), 104 Stat. 207; Indian Reorgani-
zation Act Amendments of 1988, Pub. L. No. 100-581, § 101, 102 Stat.
2938; see also Indian Land Consolidation Act, 25 U.S.C. 2201 et seq.
(extending the reach of Section 465).

8

and Indian self-determination. Against that back-
ground, Congress made an explicit policy determination
in Section 5 of the IRA to allow the Secretary to take
into trust land “within or without existing reservations”
and that “such lands or rights shall be exempt from
State and local taxation.” 25 U.S.C. 465.‘

c. The court of appeals’ decision is, moreover, cor-
rect. It is well settled that “Congress does not violate
the Constitution merely because it legislates in broad
terms, leaving a certain degree of discretion to executive
or judicial actors.” Touby v. United States, 500 U.S.
160, 165 (1991). It is “constitutionally sufficient if Con-
gress clearly delineates the general policy, the public
agency which is to apply it, and the boundaries of this
delegated authority.” Mistretta v. United States, 488
U.S. 361, 372-373 (1989) (quoting American Power &
Light Co. v. SEC, 329 U.S. 90, 105 (1946)); accord Whit-
man, 531 U.S. at 472 (quoting J.W. Hampion, Jr., & Co.
v. United States, 276 U.S. 394, 409 (1928)) (Congress

‘ Petitioner contends (Pet. 25, 28) that the power to exempt lands
from State jurisdiction raises special concerns. But petitioner ignores
the fact that the regulations promulgated by the Secretary to imple-
ment Section 5 address the very concerns petitioner raises about effects
on state sovereignty. See City of Sherrill, 544 U.S. at 220-221 (“The
regulations implementing [Section 5) are sensitive to the complex inter-
jurisdictional concerns that arise when a tribe seeks to regainsovereign
control over territory.”). The regulations direct the Bureau of Indian
Affairs, when deciding whether to approve a request that it accept land
into trust, to consider any “[jJurisdictiona! problems and potential con-
flicts of land use which may arise.” 25 C.F.R.151.10(f). Similarly, when
the land to be acquired is he}d in unrestricted fee status, the BIA must
consider “the impact on the State and its political subdivisions resulting
from the removal of the land from the tax rolls,” 25 C.F.R. 151.10(e), as
well as whether the BIA “is equipped to discharge the additional re-
sponsibilities resulting from the acquisition of the land in trust status,”
25 C.F.R. 151.10(g).

9

must “lay down by legisiative act an intelligible principle
to which the person or body authorized to [act] is di-
rected to conform.”).

Petitioner criticizes (Pet. 16-18) the court of appeals
for relying on “statutory background and context.” But
this Court has repeatedly made clear that a statute’s
“purpose,” “factual background,” and “context,” are
properly considered in determining whether a statute
establishes intelligible principles. American Power &
Light Co., 329 U.S. at 104; see Lichter v. United States,
334 U.S. 742, 785 (1948) (same); Federal Radio Comm’n
v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285
(1933) (“context”); Fahey v. Mallonee, 332 U.S. 245, 253
(1947) (“the background of custom”).

Section 5 of the IRA itself contains several express
indications of Congress’s policy. It states that the pur-
pose of the Secretary's land-acquisition authority is
“providing land for Indians.” 25 U.S.C. 465. It provides
a limited amount of federal funds to be used for the pur-
pose and expressly forbids the use of those funds to ac-
quire land for Navajo Indians outside of their estab-
lished reservation boundaries. /bzd. Finally, it specifies
that lands taken into trust “shall be exempt from State
and local taxation.” /bid.

Further statutory principles for implementing Sec-
tion 5 are furnished by the purposes and structure of the
IRAasa whole. As this Court has previously explained,
Congress enacted the IRA to promote Indian self-gov-
ernment and economic self-sufficiency. See Mescalero
Apache Tribe v. Jones, 411 U.S. at 152-154 (“The intent
and purpose of the Reorganization Act was ‘to rehabili-
tate the Indian's economic life and to give him a chance
to develop the initiative destroyed by a century of op-
pression and paternalism.'”) (quoting H.R. Rep. No.

10

1804, 73d Cong., 2d Sess. 6 (1934)); accord New Mexico
v. Mescalero Apache Tribe, 462 U.S. 324, 335 (1983) (the
IRA reflects Congress’s “overriding goal of encouraging
‘tribal self-sufficiency and economic deveiopment’”)
(quoting White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 143 (1980)); Morton v. Mancari, 417 U.S. 535,
542 (1974). In service of that goal, Congress identified
“conserv(ing] and develop{ing) Indian lands and re-
sources” as one of the purposes of the IRA. Ch. 576,
Pmbl., 48 Stat. 984. Congress was concerned, for exam-
ple, with reversing the “disastrous” consequences of the
Indian General Allotment Act of 1887, ch. 119, 24 Stat.
388, which had eroded the land base of the affected
tribes and weakened tribal organizations. Hagen v.
Utah, 510 U.S. 399, 425 & n.5 (1994).

Accordingly, the IRA expressly repudiates the allot-
ment policy, 25 U.S.C. 461, and contains several provi-
sions designed to preserve, restore, consolidate, and
expand the land base of tribes, as appropriate to further
the IRA’s overriding goals of tribal self-government and
economic development. 25 U.S.C. 462, 463(a), 464, 465.
Other provisions of the IRA likewise reflect Congress's
policy of promoting the economic development and self-
governance of Indian tribes. 25 U.S.C. 469, 470, 471,
472, 476, 477.

The Secretary’s authority under Section 5 to acquire
land in trust for Indian tribes and the protection of that
property against taxation is intended to further the
larger statutory purposes, for example, by ensuring that
tribal lands are not lost by condemnation, alienation,
encroachment, or tax defaults. See generally City of
Sherrill, 544 U.S. at 220-221(recognizing that Section 5
serves as “ongress’s “mechanism for the acquisition of
lands for tribal communities that takes account of the

11

interests of others with stakes in the area’s governance
and well-being” and “provides the proper avenue for
* * * reestablish{ing] sovereign authority over terri-
tory” formerly held by an Indian tribe).

Moreover, as the court of appeals correctly observed,
the IRA’s legislative history “underscores its purpose of
addressing economic and socia] challenges facing Ameri-
can Indians by promoting economic development.” Pet.
App. 17 (citing H.R. Rep. No. 1804, supra, at 6); S. Rep.
No. 1080, 73d Cong., 2d Sess. 1-2 (1934); cf. Mescalero
Apache Tribe v. Jones, 411 U.S. at 152-154 (quoting
same House Report); New Mexico v. Mescalero Apache
Tribe, 462 U.S. at 335 n.17 (same).

The purposes of the IRA as reflected in its text,
structure, context, and history provide the intelligible
principles that guide the Secretary in the exercise of his
authority under Section 5. The Secretary may acquire
land “for the purpose of providing land for Indians,”
within the intent of Section 5, when the acquisition
would advance tribal economic development, assist tribal
self-governance, and restore the ancestral tribal land
base. Indeed, this Court has often identified those poli-
cies as the congressional purposes that guide the Secre-
tary’s application of the IRA. See Mancari, 417 U.S. at
542 (“The overriding purpose of [the IRA] was to estab-
lish machinery whereby Indian tribes would be able to
assume a greater degree of self-government, both politi-
cally and economnically.”); Mescalero Apache Tribe v.
Jones, 411 U.S. at 152; see also Washington v. Confeder-
ated Tribes of the Colville Indian Reservation, 447 U.S.
134, 168 (1980) (Brennan, J., concurring in part and dis-
senting in part) (noting that the [RA reflects both the
“policy of encouraging tribal self-government” and the

12

“complementary interest in stimulating Indian economic
and commercial development”).

2. Petitioner’s belated effort to raise the question
pending before this Court in Carcieri should be re-
jected. Petitioner waived that claim. It did not raise
that claim at any point in the administrative proceedings
or before the district court (see Pet. 29), and petitioner
did not attempt to raise it in the court of appeals until
months after the completion of briefing and oral argu-
ment. The court of appeals plainly did not abuse its dis-
cretion in denying petitioner’s motion to add that issue
on appeal (see page 4, supra), and the court of appeals’
ruling on that procedural issue does not warrant review
by this Court. Indeed, petitioner does not contend oth-
erwise. Moreover, this Court generally does not itself
consider an issue that was neither timely raised nor
passed on by the lower courts. See, e.g., Auer v. Rob-
bins, 519 U.S. 452, 464 (1997) (declining to consider ar-
gument because it “was inadequately preserved in the
prior proceedings”); see also Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263, 280-281 (1993).
There is no reason to depart from that rule here.”

Nor is there any reason to hold the petition pending
this Court’s decision in Carcieri. The Carcieri petition-
ers contend that, when tribal membership is the basis
for status as an “Indian” under the IRA, the Secretary
can take land into trust only for members of tribes that
“were federally recognized and under federal jurisdic-
tion in 1934.” See, e.g., Pet. Carcieri Br. at 13-14, Car-
cieri, supra (No. 07-526). Even assuming that that is

* Contrary to petitioner's contention (Pet. 29-33), there is no basis to
excuse its failure to properly preserve the claim. By the time petitioner
filed its complaint in this suit in 2005, the petitioners in Carciern had
been litigating their claim for almost five years.

13

the sole basis on which the Band could be covered by the
IRA, the record here (which is not developed on this
waived claim) suggests that the Band had a government-
to-government relationship with the United States well
before 1934, as evidenced by a number of treaties that
the Band had entered into with the United States.
62 Fed. Reg. 38,113 (1997). And, as of 1934, the Bureau
of Indian Affairs apparently continued to monitor and
provide some services to members of the Band. See
C.A. App. 1786, 1844-1845. Moreover, the Secretary has
acknowledged the Band’s status through the federal
acknowledgment process, which noted the Band’s ex-
istence as a “continuous community since the latest
date of unambiguous previous Federa! acknowledgment,
1870.” 63 Fed. Reg. at 56,936; see 62 Fed. Reg. at
38,113.°

At a minimun,, it is not the case that allowing peti-
tioner to belatedly raise the Carcierz issue “will cause no
inefficiency or delay.” Pet. 34. If this Court were to set
aside the Secretary’s action in Carczer1, any remand in

this case in light of the Court’s disposition of Carcieri
would in turn require a remand to the Department of the
Interior to reopen the record to develop petitioner's be-
lated claim on the merits. The Department would need
to explore the law and facts about federal recognition of

—

* Contrary to petitioner's suggestion (Pet. 7), the Secretary did not
determine that the Band's federal recognition ceased in 1870. As stated
in the Assistant Secretary's final determination of acknowledgment,
1870 was the date of the Band's final annuity payment under the 1855
Treaty of Detroit, 63 Fed. Reg. at 56,936, and that date was used solely
to allow the Band to proceed under 25 C.F R. 838 as it modifies the
criteria of 25 C.F.R. 83.7(a)4g). But the Assistant Secretary made no
finding that federal recognition ceased in 1870. See 63 Fed. Reg at
56,936; G2 Fed. Reg. at 38,113.

14

and jurisdiction over the Band, including inter alia, any
treaties, statutes, administrative activities, or the like
that involved federal] oversight of the Band or its prop-
erty in 1934.

In any event, as noted above, the court of appeals
already has twice rejected petitioner’s attempt to belat-
edly raise the question presented in Carcierz, first by
refusing to allow petitioner to supplement the issues on
appeal after oral argument, see 07-5092 Order (D.C. Cir.
Mar. 19, 2008), and then by calling for a response to peti-
tioner’s en banc petition solely on the nondelegation
claim and not on the claim raised in Carcieri, see
07-5092 Order (D.C. Cir. May 20, 2008). There is no
reason to believe that the court of appeals would recon-
sider that finding of waiver if the case were remanded.

CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.

GREGORY G. GARRE
Solicitor General

RONALD J. TENPAS
Assistant Attorney General

AARON P. AVILA
Attorney

DECEMBER 2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0775%3A1. Public record. Not legal advice.