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State v. Salazar

September 29, 2009

STATE OF NEW YORK; DAVID A. PATERSON, IN HIS CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK; ANDREW M. CUOMO, IN HIS CAPACITY AS ATTORNEY GENERAL OF THE STATE OF NEW YORK; MADISON COUNTY, NEW YORK; AND ONEIDA COUNTY, NEW YORK, PLAINTIFFS,
v.
KENNETH SALAZAR,*FN1 SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR; JAMES E. CASON, ASSOCIATE DEPUTY SECRETARY OF THE INTERIOR; P. LYNN SCARLET, DEPUTY SECRETARY OF THE INTERIOR; FRANKLIN KEEL, EASTERN REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES OF AMERICA; JAMES A. WILLIAMS, ACTING ADMINISTRATOR, UNITED STATES GENERAL SERVICES ADMINISTRATION; UNITED STATES GENERAL SERVICES ADMINISTRATION, DEFENDANTS, AND ONEIDA NATION OF NEW YORK, INTERVENOR DEFENDANT.



MEMORANDUM-DECISION AND ORDER

Plaintiffs filed this action on June 19, 2008, challenging a May 20, 2008 Record of Decision ("ROD") in which the United States Department of the Interior ("DOI") decided to accept over 13,000 acres of land in central New York into trust for the benefit of the Intervenor Defendant the Oneida Nation of New York ("Oneida Indian Nation" or "OIN"). Plaintiffs filed their Second Amended and Supplemental Complaint on February 12, 2009, adding five claims related to the DOI's acceptance of administrative custody over an 18-acre parcel -- which previously had been used by the United States as an annex to the Griffiss Air Force Base -- to be held in trust for the benefit of the OIN. See Second Am. Compl. (Dkt. No. 94).

Presently before the Court are five Motions: Motions filed by Defendants (Dkt. No. 36) and the OIN (Dkt. No. 51) seeking dismissal of Plaintiffs' First, Second and Seventeenth Causes of Action; a Motion filed by Plaintiffs seeking summary judgment on their Third Cause of Action (Dkt. No. 57); and Motions filed by Defendants (Dkt. No. 111) and the OIN (Dkt. No. 110) seeking dismissal of Plaintiffs' five supplemental claims. For the reasons that follow, Defendants' and the OIN's Motions to dismiss are granted, and Plaintiffs' Motion for summary judgment is denied.

I. BACKGROUND*fn2

On April 4, 2005, the OIN submitted a request to the DOI's Bureau of Indian Affairs ("BIA") requesting that the Secretary of the Interior (the "Secretary") take approximately 17,370 acres in trust for the OIN. ROD at 2, 6 (Dkt. No. 57, Attach. 3). The request included 330 parcels, or 440 tax lots, all owned by the OIN and located in Madison County and Oneida County, New York. Id. at 6. According to the ROD, the OIN "submitted its fee-to-trust request in response" to the Supreme Court's decision in Sherrill. Id.

Pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the DOI issued a draft Environmental Impact Statement ("EIS") regarding the proposed fee-to-trust request on November 24, 2006. ROD at 2, 6. Public comments were solicited until February 22, 2007, and public hearings were held on December 14, 2006 and February 6, 2007. Id. at 2, 6. The DOI issued its final EIS on February 22, 2008. Id. at 2, 7. On May 20, 2008, the DOI, "based on the Department's review of the Draft EIS, the Final EIS, comments received from the public, Federal agencies, State agencies, local governmental entities, and potentially affected Indian tribes, and the applicable statutory and regulatory criteria for acquiring title to lands in trust status[,]" issued its decision to accept approximately 13,003.89 acres in trust for the OIN. Id. at 2.

Plaintiffs filed their Complaint in this action on June 19, 2008 (Dkt. No. 1), and amended their Complaint on July 15, 2008 (Dkt. No. 19). On September 30, 2008, Defendants filed the presently pending Motion for partial dismissal. Dkt. No. 36. The OIN moved to intervene on October 1, 2008. Dkt. No. 37. The Court granted that motion on November 5, 2008. Dkt. No. 48. The OIN filed a Motion seeking partial dismissal on November 10, 2008. Dkt. No. 51. On November 17, 2008, Plaintiffs filed their summary judgment Motion. Dkt. No. 57.

On January 7, 2009, the Defendants filed a Notice of Administrative Action ("Notice") pursuant to 40 U.S.C. § 523,*fn3 alerting the Court and the other parties that:

[O]n December 30, 2008, the Bureau of Indian Affairs formally acknowledged receipt of administrative custody and accountability for the former United States Air Force Space Command Complex at the Verona Research Facility, Germany Road, Verona, New York. Such property is held in trust by the Secretary of the Interior for the Oneida Indian Nation of New York. The trust acquisition was mandated by 40 U.S.C. § 523, and accordingly was non-discretionary. . . .

The property accepted into trust is not part of the land the Department of the Interior proposes to accept into trust pursuant to the May 20, 2008 Record of Decision that is the subject of [this case and related cases].

Dkt. No. 72.

The land at issue in the December 30, 2008 Notice consists of an 18.195 acre parcel located in Verona, New York. See Defs.' Mem. in Supp. at 4 (Dkt. No. 111, Attach. 1). The land was acquired in fee by the United States in 1952 from a private landowner. See id.; Second Am. Compl. ¶¶ 107, 109. The United States used the 18-acre parcel as part of the Verona Test site, an annex to the Griffiss Air Force Base. See Second Am. Compl. ¶ 114; Defs.' Mem. in Supp. at 4. Griffiss Air Force Base closed in 1995, and the Air Force vacated the Verona Test Site in 1996. See Defs.' Mem. in Supp. at 4; Second Am. Compl. ¶¶ 116-17. On January 23, 2001, the Air Force issued a Report of Excess Real Property for the 18-acre parcel of the former Verona Test Site. Dkt. No. 111, Attach. 4.

In a letter dated May 24, 2002, DOI informed the General Services Administration ("GSA") that "[a]s to whether the Verona Test Site is situated within the reservation set aside for the Oneida Indian Nation by the Treaty of Canandaigua, our research reveals that the test site is indeed located within the exterior boundaries of the 1794 reservation." Dkt. No. 111, Attach. 6. On May 28, 2002, GSA issued a letter stating that it "hereby transfers the Property to the BIA to be held in trust by the Department of the Interior, for the benefit and use of the Oneidas . . . ." Dkt. No. 111, Attach. 7. DOI acknowledged custody and accountability for the 18-acre parcel per the Notice issued on December 30, 2008. Dkt. No. 72.

On February 10, 2009, the parties stipulated to the filing of a Second Amended and Supplemental Complaint, and the Court approved that stipulation on February 11, 2009. Dkt. Nos. 91, 92. Plaintiffs' Second Amended and Supplemental Complaint contains seventeen causes of action challenging DOI's May 20, 2008 decision to accept over 13,000 acres in trust for the OIN, as well as five causes of action challenging DOI's December 30, 2008 acknowledgment of administrative custody over the 18-acre parcel. See generally Second Am. Compl. Plaintiffs have asserted constitutional, statutory, and regulatory claims, alleging, inter alia, violations of the non-delegation doctrine; the Tenth Amendment; the land into trust provision of the Indian Reorganization Act, 25 U.S.C. § 465; the regulations in 25 C.F.R. part 151; NEPA; the Freedom of Information Act; and the Indian Gaming Regulatory Act ("IGRA"). See generally Second Am. Compl. Plaintiffs seek, inter alia, a declaratory judgment that the Defendants' action in taking the subject lands into trust was unlawful; an injunction prohibiting Defendants from taking any of the subject lands into trust; a declaratory judgment that the 18-acre transfer is null and void; and an injunction prohibiting Defendants from transferring any other excess or surplus federal land into trust for the OIN. Id. at 73-74. The Court held oral argument on the pending Motions on June 24, 2009. See Tr. (Dkt. No. 130).

II. DEFENDANTS' AND THE OIN'S MOTIONS TO DISMISS

A. Standard of Review

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a motion to dismiss pursuant to Rule 12(b)(6), a district court must accept the allegations made by the non-moving party as true and "draw all inferences in the light most favorable" to the non-moving party. In re NYSE Specialists Securities Litigation, 503 F.3d 89, 95 (2d Cir. 2007). "The movant's burden is very substantial, as '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp. 2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (internal quotation and citations omitted)).

Pursuant to Federal Rule of Civil Procedure 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing FED. R. CIV. P. 12(b)(1)). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). In reviewing a motion to dismiss for lack of subject matter jurisdiction, a court "'must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor.'" Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir. 2001)). A defendant's challenge to a plaintiff's constitutional standing to sue is properly brought under Rule 12(b)(1). See Alliance for Environmental Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 89 n.6 (2d Cir. 2006) ("Although we have noted that standing challenges have sometimes been brought under Rule 12(b)(6), as well as Rule 12(b)(1) . . . the proper procedural route is a motion under Rule 12(b)(1).") (internal citations omitted).

B. Non-Delegation Doctrine

Defendants and the OIN move to dismiss Plaintiffs' First Cause of Action, which alleges that Section 465 of the Indian Reorganization Act (the "IRA"), 25 U.S.C § 465 ("Section 465"), is an unconstitutional delegation of legislative authority. Defs.' Motion to dismiss (Dkt. No. 36); OIN's Motion to dismiss (Dkt. No. 51); Second Am. Compl. ¶¶ 132-136. In their Complaint, Plaintiffs specifically aver that:

Section 465 violates [the non-delegation doctrine] by giving the Secretary of the Interior unbounded discretion to acquire land "for the purpose of providing land for Indians." The statute contains no limiting standards. The regulations, which cannot in any event provide a standard where the statute contains none, are similarly lacking in any meaningful standard. Those regulations merely list factors that the Secretary should consider when taking land into trust, but place no boundaries upon that authority. Second Am. Compl. ¶ 134.

Article I, § 1, of the Constitution vests "all legislative powers herein granted . . . in a Congress of the United States." U.S. CONST. art. I, § 1. Accordingly, Congress "is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is vested." Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); see also Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001); Mistretta v. United States, 488 U.S. 361, 371 (1989) ("The non-delegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of government."). However, the Supreme Court has recognized that "Congress simply cannot do its job absent an ability to delegate power under broad general directives" and therefore Congress may confer decision making authority on agencies. Mistretta, 488 U.S. at 372. "[W]hen Congress confers decision-making authority upon agencies, Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to perform.'" Whitman, 531 U.S. at 472 (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)). The Supreme Court "has deemed it 'constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'" Mistretta, 488 U.S. at 372-73 (quoting Am. Power & Light Co. v. SEC, 328 U.S. 90, 105 (1946)).

Plaintiffs argue that Section 465 lacks the requisite intelligible standard and therefore is an unconstitutional delegation of legislative authority. "In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency." See Whitman, 531 U.S. at 472. In pertinent part, Section 465 provides:

The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians.

Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. 608 et seq.) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.

25 U.S.C. § 465.

***

Every court to consider a delegation challenge to Section 465 has rejected it and found that agency regulations sufficiently limit the Secretary of the Interior's discretion. See, e.g., Michigan Gaming Opposition v. Kempthorne, 525 F.3d 23, 33 (D.C. Cir. 2008); Carcieri v. Norton, 497 F.3d 15, 43 (1st Cir. 2007) (en banc), rev'd on other grounds sub nom. Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058 (2009); South Dakota v. United States Dep't of Interior, 423 F.3d 790, 799 (8th Cir. 2005) ("South Dakota II");*fn4 United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999); Shivwitz Band v. Utah, 428 F.3d 966, 972-74 (10th Cir. 2005); Nevada v. United States, 221 F. Supp. 2d 1241, 1250-51 (D. Nev. 2002). In support of this repeatedly rejected delegation challenge, Plaintiffs primarily rely on South Dakota v. United States Dep't of Interior, 69 F.3d 878 (8th Cir. 1995) ("South Dakota I") and Michigan Gaming Opposition v. Kempthorne. Pls.' Opp'n to Defs.' Mot. to dismiss at 23-25 (Dkt. No. 61). Neither of these opinions, however, has any precedential value nor are they persuasive. Plaintiffs cite to the dissent in Michigan Gaming Opposition, and South ...


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