D.C Circuit Paves Way for Casino in Wayland Township, Michigan

D.C Circuit Paves Way for Casino in Wayland Township, Michigan

5/14/2008
By: Scott R. Knapp On April 29, 2008, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's decision to grant summary judgment to, inter alia, the Secretary of the Interior concerning the decision to approve a Class III casino proposed by the Match E Be Nash She Wish Band of Pottawatomi Indians (the "Tribe"). In Michigan Gambling Opposition v. Kempthorne, et al., __ F.3d __; 2008 WL 1932769 (C.A.D.C. 2008), the D.C. Circuit held that the Department of Interior's approval did not violate the National Environmental Protection Act ("NEPA"), and that section 5 of the Indian Reorganization Act ("IRA"), 25 U.S.C. ? 465, is not an unconstitutional delegation of legislative authority. By way of background, the Tribe had secured federal acknowledgment in 1998, under the Bureau of Indian Affairs' (the "BIA's") formal recognition procedure. The Tribe intends for BIA to acquire, and hold in trust for the benefit of the Tribe, a 147-acre tract of land between Kalamazoo and Grand Rapids, Michigan (the "Property"). The Tribe plans to use the Property to construct a 99,000 sq/ft Class III gambling casino. See Michigan Gambling Opposition, 2008 WL 1932769, *1. The BIA prepared an environmental assessment ("EA") pursuant to NEPA, 42 U.S.C. § 4321, et seq. As pertinent here, the EA revealed two intersections wherein increased casino-related traffic would result in potentially unacceptable traffic delays. In order to mitigate the traffic impact, the EA recommended construction of, inter alia, a dedicated right-turn lane and a four-way stop. Having concluded that proposed remedial measures would alleviate the traffic and other issues raised in the EA, the BIA and the National Indian Gaming Commission ("NIGC") issued Findings of No Significant Impact ("FONSIs"), and announced their intent to acquire the Property, and allow the casino. 2008 WL 1932769, *2. Plaintiff Michigan Gambling Opposition ("MichGO") thereafter filed suit alleging, inter alia, that the issuance of a FONSI, rather than an environmental impact statement ("EIS"), violated NEPA; and that section 5 of the IRA is an unconstitutional delegation of congressional authority to the Secretary of the Interior. 2008 WL 1932769, *2. The district court granted summary judgment to defendants on February 23, 2007. See Michigan Gambling Opposition v. Norton, 477 F. Supp.2d 1, 22 (D.D.C. 2007). MichGO first argued to the Court of Appeals that the Tribe's proposed casino is "large and controversial" and, as such, the Department of Interior ("DOI") is required by law to prepare an EIS. In support, MichGO relied upon a 2005 "Checklist for Gaming Acquisitions" which provides that "[p]roposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS." 2008 WL 1932769, *3. MichGO then argued that 40 C.F.R. § 1501.4(a) requires an EIS where mandated by internal DOI guidelines, such as the Checklist. Id. The Court of Appeals rejected that contention, holding that § 1501.4(a) "does not make the Checklist binding on the DOI." 2008 WL 1932769, *3. To the contrary, the Court concluded, the procedures for determining whether to require an EIS are set forth in the Department of the Interior, Department Manual, Pt. 516, Chpt. 10 (May 27, 2004), which do not encompass the Checklist. Because, under the Manual, "gaming activities" are not listed among those activities that either definitively do, or do not normally require an EIS, the DOI was free to determine "not to prepare an EIS on the basis of the EA." 2008 WL 1932769, *3 (citing C.F.R. §§ 1507.3(a) and 1501.4(b) (c)). MichGO argued in the alternative that it was arbitrary or capricious for the DOI to issue a FONSI, without having prepared an EIS, because traffic levels at the two above-referenced intersections were unacceptable (at times), even after the proposed remedial measures. 2008 WL 1932769, *4. However, noting that the Michigan Department of Transportation, "the agency with jurisdiction over these roads, found the traffic levels projected after the DOI's mitigation measures would be acceptable," the Circuit Court concluded that it "was not inherently arbitrary or capricious for the DOI to rely on MDOT's assessment." Id. Thus, the Court held that the DOI was justified in determining that the EIS was unnecessary. Id. Finally, MichGO argued that section 5 of IRA is an unconstitutional delegation of legislative power because it is "completely devoid of intelligible standards to guide or limit the Secretary's discretion" in determining whether to obtain lands in trust for the Tribe. 2008 WL 1932769, *5 (quotation omitted). The issue was one of first impression in the D.C. Circuit. Id. The Court first noted that courts of appeal for the First, Eighth and Tenth Circuits have previously rejected challenges to section 5 as an unconstitutional delegation of authority. 2008 WL 1932769, *5 (citing Carcieri v. Norton, 497 F.3d 15, 41 43 (1st Cir. 2007); South Dakota v. U.S. Dep't of Interior, 423 F.3d 790, 799 (8th Cir. 2005); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999)). _______________________________________________ 1 The United States Constitution provides: "[a]ll legislative powers herein granted shall be vested in a Congress of the United States." U.S. Const. art I, § 1. "In considering a challenge to a delegation of power, the test is whether Congress has set forth 'an intelligible principle to which the person or body authorized to act is directed to conform.'" 2008 WL 1932769, *4 (quoting TOMAC v. Norton, 433 F.3d 852, 866 (D.C. Cir. 2006) and Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001)). The Court then analyzed the purpose, context and factual underpinnings of section 5. Citing to numerous other provisions of the IRA, the Court stated that "[t]his context underscores section 5's role as part of a broad effort to promote economic development among American Indians, with a special emphasis on preventing and recouping losses of land caused by previous federal policies." 2008 WL 1932769, *6 (citing 25 U.S.C. §§ 462 64, and 470). Thus, the scope of authority delegated to the Secretary under section 5 "is not so broad as to require limiting principles more specific than pursuing Indian economic development." Id. at *7. Accordingly, the Court joined the First, Eighth and Tenth Circuits in upholding section 5 of the IRA, concluding "that section 5 contains an intelligible principle and that it is not an unconstitutional delegation of legislative authority." Id.
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