United States District Court, E.D. Washington
FREMMING NIELSEN, SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
"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.
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.
Gaming Regulatory Act [IGRA]
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.
to the Community
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 ...