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Town of Verona v. Salazar

September 29, 2009



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 Oneida Indian Nation of New York ("OIN"). See Compl. (Dkt. No. 1). Presently before the Court is Defendants' Motion seeking partial dismissal of Plaintiffs' Complaint. Motion to dismiss (Dkt. No. 10). Also before the Court is Plaintiffs' Motion seeking summary judgment on their second claim. Motion for Sum. Judg. (Dkt. No. 18). For the reasons that follow, Defendants' Motion is granted and Plaintiffs' Motion is denied.


On April 4, 2005, the OIN submitted a fee-to-trust request to the DOI's Bureau of Indian Affairs ("BIA") requesting that the Secretary of the Interior (the "Secretary") take approximately 17,370 acres into trust on behalf of the OIN. ROD at 2, 6 (Dkt. No. 1, Ex. A); see Compl. ¶¶ 38-39. The request included land located in the Towns of Verona and Vernon, New York. Compl. ¶ 1. 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; Compl. ¶ 44. Public comments were solicited until February 22, 2007, and public hearings were held on December 14, 2006 and February 6, 2007. ROD at 2, 6; Compl. ¶ 45. The DOI issued its final EIS on February 22, 2008. ROD at 2, 7; Compl. ¶ 45. On May 20, 2008, "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[,]" the DOI issued its Determination to acquire approximately 13,003.89 acres in trust for the OIN. ROD at 2.

In their Complaint, Plaintiffs challenge the DOI's May 20, 2008 ROD, alleging violations of, inter alia, the Tenth Amendment; the land into trust provision of the Indian Reorganization Act ("IRA"), 25 U.S.C. § 465 ("Section 465"); and the Indian Gaming Regulatory Act ("IGRA"). See generally Compl. Plaintiffs invoke federal jurisdiction pursuant to, inter alia, the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Id. ¶ 11. Plaintiffs seek a declaratory judgment that the Defendants' actions were illegal, null and void, and a permanent injunction prohibiting implementation of the May 20, 2008 ROD. See id.

On September 22, 2008, Defendants filed the pending Motion of partial dismissal. Dkt. No. 10. On November 18, 2008, Plaintiffs filed the pending Motion seeking summary judgment with respect to their Second Claim. Dkt. No. 18.


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. Tenth Amendment

In their First Claim, Plaintiffs allege that Section 465,*fn2 as applied, violates the Tenth Amendment. See Compl. ¶¶ 62-71. Plaintiffs contend that "[p]rinciples of state sovereignty, implicit throughout the Constitution and explicit in the Tenth Amendment," prohibit the federal government from "commandeer[ing] thousands of acres of settled land from the jurisdiction of the State without its consent for the purpose of creating a sovereign Indian enclave." Pls.' Mem. in Opp'n at 14 (Dkt. No. 17). Defendants contend that Plaintiffs lack standing to raise a Tenth Amendment claim, and that Plaintiffs' Tenth Amendment claim fails to state a claim upon which relief can be granted. See Motion to dismiss.

The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST. amend. X. "If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress." New York v. United States, 505 U.S. 144, 156 (1992) (citations omitted).

Plaintiffs' Tenth Amendment claim must be dismissed, as Section 465 represents a valid exercise of congressional authority pursuant to the Indian Commerce Clause.*fn3 Pursuant to the Indian Commerce Clause, Congress has the power "[t]o regulate commerce . . . with the Indian tribes[.]" U.S. CONST. art. I, § 8, cl. 3. As the Supreme Court has repeatedly noted, Congress possesses plenary authority to legislate in matters involving Indian affairs. See, e.g., United States v. Lara, 541 U.S. 193, 200 (2004) (describing Congress' powers to legislate in respect to Indian matters as "plenary and exclusive"); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998) ("Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights."); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs[.]") (citing Morton v. Mancari, 417 U.S. 535, 551-52 (1974)). "With the adoption of the Constitution, Indian relations became the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 234 (1985).

Given the Supreme Court's broad interpretation of the Indian Commerce Clause, the Secretary's determination to take land into trust for the OIN pursuant to Section 465 must be read as a valid exercise of the power delegated to Congress by the Constitution. As the Secretary's authority to take land into trust for Indians springs from powers delegated to Congress in Article I, Section 465, as applied herein, does not implicate the Tenth Amendment. See New York, 505 U.S. at 156.

Plaintiffs also cite to the Enclave Clause in support of their Tenth Amendment claim. See Pls.' Mem. in Opp'n at 14. The Enclave Clause provides that Congress has the power "to exercise exclusive Legislation in all Cases . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts . . . and other needful Buildings[.]" U.S. CONST. art. I, § 8, cl. 17. However, the Enclave Clause is not implicated by the DOI's accepting land into trust pursuant to Section 465. Accepting land into trust does not amount to exclusive federal jurisdiction over the subject land, as would be required for the Enclave Clause to apply. See, e.g., Nevada v. Hicks, 533 U.S. 353, 361 (2001) ("Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border.").

Plaintiffs also argue that "New York, as one of the original 13 colonies, stands in a somewhat different position from most other States with respect to this issue of state sovereignty." Pls.' Mem. in Opp'n at 15. However, this argument is without merit, as pursuant to the "'equal footing doctrine,' all States are admitted to the Union with the same attributes of sovereignty . . . as the original 13 States." Minnesota v. Mille Lacs Bank of Chippewa Indians, 526 U.S. 172, 203 (1999) (citing Coyle v. Smith, 221 U.S. 559 (1911)). The authorities cited by Plaintiffs do not support the proposition that the ROD -- because it concerns land in one of the original thirteen colonies -- runs counter to the Tenth Amendment.

Accordingly, Plaintiffs' Tenth Amendment claim is dismissed.*fn4

C. Indian Gaming Regulatory Act and the Legality of Gaming at Turning Stone Casino

In their Third Claim, Plaintiffs allege that the Defendants' decision to take the subject land into trust for the OIN was arbitrary, capricious and an abuse of discretion because, inter alia, the operation of the Turning Stone Casino,*fn5 a Class III gaming*fn6 facility, is illegal, and the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2719 (Section 2719) prohibits gambling on land acquired in trust after IGRA's enactment, and the OIN does not qualify for any of the exceptions to Section 2719. Compl. ¶¶ 96-109. Plaintiffs contend that they "neither assert a claim for relief under IGRA nor request an order terminating the illegal gambling operation there." Pls.' Mem. in Opp'n at 17. Instead, Plaintiffs contend that the alleged illegality of gambling at Turning Stone is an element of Plaintiffs' APA claim seeking an order nullifying the Secretary's decision to take 13,000 acres into trust for the OIN. Id.

Defendants argue that Plaintiffs lack standing to challenge the legality of gaming at Turning Stone. See Motion to dismiss. Defendants also argue that because the Turning Stone Casino is situated within the boundaries of the OIN reservation, the Secretary need not comply with 25 U.S.C. § 2719(b)(1)(A) before taking the subject land into trust. See id.

The Court concludes as a matter of law that to the extent Plaintiffs invoke IGRA or otherwise challenge the legality of gaming at Turning Stone Casino, Plaintiff's claims are without merit and must be dismissed. IGRA establishes the requirements for lawful Class III gaming on Indian lands:

1) Class III gaming activities shall be lawful on Indian lands only if such activities are--

(A) authorized by an ordinance or resolution that--

(I) is adopted by the governing body of the Indian tribe having ...

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