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Kalispel Tribe of Indians v. United States Department of Interior

United States District Court, E.D. Washington

July 11, 2019

KALISPEL TRIBE OF INDIANS and SPOKANE COUNTY, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants, SPOKANE TRIBE OF INDIANS, Intervenor-Defendant.

          ORDER

          WM. FREMMING NIELSEN, SENIOR UNITED STATES DISTRICT JUDGE

         A motion hearing was held June 17, 2019. Kalispel Tribe of Indians [Kalispel] was represented by Zackary Welcker; Spokane County was represented by Jennifer MacLean; Federal Defendants were represented by Steven Miskinis, with Devon McCune participating telephonically; and Spokane Tribe of Indians was represented by Danielle Spinelli, James Barton, Kevin Lamb, and Scott Wheat. The Court addressed the parties' cross Motions for Summary Judgment as well as the Federal Defendants' Motion to Strike. ECF Nos. 79, 82, 96, 97, and 98. For the reasons detailed below, the Court grants Defendants' Motions for Summary Judgment.

         BACKGROUND

         Located a few miles west of Spokane in Spokane County, Airway Heights is home to Fairchild Air Force Base, Northern Quest Casino, and, more recently, the Spokane Tribe's casino. Though Airway Heights falls within Spokane Tribe's aboriginal land, the Kalispel Tribe obtained trust land within Airway Heights and successfully obtained permission to build the Northern Quest Casino twenty years ago. Northern Quest Casino has proved lucrative for the Kalispel, bringing in profits that benefited the Kalispel tribal members by funding local governmental interests as well as providing direct payments to tribal members. In 2001, the United States acquired land in trust for the Spokane Tribe nearby the Northern Quest Casino. Five years later, the Spokane Tribe sought Department of the Interior [Department] approval for gaming on the trust land with a proposed casino within two miles of the Northern Quest Casino. Permission for gaming on the property required a two-part determination by the Department of the Interior.

         Over the course of the next ten years the Department examined the Spokane Tribe's request. The Department consulted an expert to assess how an additional gaming facility would affect the surrounding community including the Kalispel. Local officials engaged with the Department to address concerns about the proposed casino. The Department initiated the processes required under the National Environmental Policy Act [NEPA] to assess the environmental impact. On June 15, 2015, the Department found in favor of Spokane Tribe; just shy of a year afterward, Governor Jay Inslee concurred, marking the conclusion of the approval process. In 2018, twelve years after the Spokane Tribe first requested a two-part determination, the casino opened for business with plans for further development into the future.

         ANALYSIS

         The "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. Judicial review for APA actions is based on the agency's administrative record. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883-84 (1990). The court's role is to determine whether the agency's record supports the agency's decision as a matter of law under the APA's arbitrary and capricious standard of review. Review of a final agency determination under the Administrative Procedure Act "does not require fact finding on behalf of this court. Rather, the court's review is limited to the administrative record . . . ." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir.1994). Consequently, the parties agree that the Court's analysis is limited to the record with no disputed material facts.

         "The Administrative Procedure Act, 5 U.S.C. § 551 et seq., which sets forth the full extent of judicial authority to review executive agency action for procedural correctness permits . . . the setting aside of agency action that is arbitrary or capricious, 5 U.S.C. § 706(2)(A)." F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (internal citations omitted).

A reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974) (internal citations omitted). "[A] court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. U.S. Dep't of Agric., 463 U.S. at 43. "The agency must articulate a rational connection between the facts found and the choice made." Bowman Transp., Inc. at 285.

         Indian Gaming Regulatory Act [IGRA]

         Gaming is prohibited on trust lands unless "the Secretary after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community . . . ." 25 U.S.C. §2719(b)(1)(A). Bureau of Indian Affairs [BIA] regulations define "surrounding community" as "local governments and nearby Indian tribes located within a twenty-five-mile radius of the site of the proposed gaming establishment." 25 C.F.R. § 292.2. The regulations also specify the mechanics of the consultation process which involves sending a letter to the relevant parties and sharing any comments with the applicant tribe, then the applicant tribe must respond to comments. 25 C.F.R. § 292.19. The letter must include several key details about the proposed gaming establishment and must request comments from recipients. 25 C.F.R. § 292.20.

         Detriment to the Community

         Though the Kalispel tribe likely will suffer some detrimental impacts through loss of revenue, the Department's determination that the new casino would not be detrimental to the surrounding community was not arbitrary and capricious. After exhaustive review, the Secretary permissibly weighed the benefits and detriments to the community concluding that approval of the new casino would not be a detriment to the surrounding community. The BIA spent ten years investigating the application, seeking expert review, and working with local officials and governments prior to issuing a decision. The BIA squarely addressed Kalispel's concerns regarding lost profits at the Northern Quest Casino. See e.g., AR4694 - 97, AR54728. The Department's expert concluded that while the Kalispel may suffer in the ...


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