United States District Court, D. Massachusetts
DAVID LITTLEFIELD, MICHELLE LITTLEFIELD, TRACY ACORD, DEBORAH CANARY, FRANCIS CANARY, JR., VERONICA Y, PATRICIA COLBERT, VIVIAN COURCY, WILL COURCY, DONNA DEFARIA, ANTONIO DEFARIA, KIM DORSEY, KELLY DORSEY, FRANCIS LAGACE, JILL LAGACE, DAVID LEWRY, KATHLEEN LEWRY, MICHELE LEWRY, RICHARD LEWRY, ROBERT LINCOLN, CHRISTINA McMAHON, CAROL MURPHY, DOROTHY PEIRCE, DAVID PURDY, and LOUISE SILVIA, Plaintiffs,
UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity; BUREAU OF INDIAN AFFAIRS; LAWRENCE ROBERTS, in his official capacity, and UNITED STATES OF AMERICA, Defendants.
MEMORANDUM & ORDER
WILLIAM G. YOUNG DISTRICT JUDGE
case arises out of a decision of the Secretary of the
Department of the Interior (the “Secretary”) to
acquire land in trust for the benefit of the Mashpee
Wampanoag Tribe (the “Mashpees”) under Section
465 of the Indian Reorganization Act (“IRA”), 25
U.S.C. § 465. The Plaintiffs are residents of Taunton
who claim they are injured by the acquisition and planned
development of the land at issue. They have filed suit
against the Department of the Interior (the
“Department”), the Bureau of Indian Affairs (the
“BIA”), Acting Assistant Secretary of Indian
Affairs Lawrence Roberts, and the United States (together,
the “government”), challenging the
Secretary’s decision pursuant to Section 702 of the
Administrative Procedure Act (“APA”), 5 U.S.C.
§ 702. The parties make cross-motions for summary
judgment on the Plaintiffs’ first cause of action,
United States’ Mot. Partial Summ. J., ECF No. 55;
Pls.’ Mot. Summ. J. First Cause Action, ECF No. 58,
which involves the Mashpees’ eligibility as
beneficiaries under the IRA, and correspondingly, the
authority of the Secretary to take land into trust for the
Mashpees are a federally recognized tribe that obtained
official acknowledgement from the BIA in 2007. Pls.’ Local
Rule 56.1 Separate Statement Facts Supp. Mot. Summ. J. First
Cause Action (“Pls.’ Statement Facts”) 1,
ECF No. 60; Compl., Ex. 1, R. Decision 4, ECF No.
Previously, the Mashpees had been subject to colonial and
state governmental jurisdiction. Pls.’ Statement Facts
¶ 5. Upon receiving federal acknowledgement, the
Mashpees filed a “fee-to-trust” application with
the BIA requesting that the Department acquire tracts of land
for the Mashpees’ use as a tribal reservation in
Mashpee and Taunton, Massachusetts. R. Decision
Of concern to the Plaintiffs here is the Taunton site, which
“[t]he City of Taunton has designated . . . for
economic development purposes” and which the Mashpees
“would use . . . to meet [their] needs for economic
development.” Id. Specifically, the Mashpees
intend to construct and operate “an approximately 400,
000 sq. ft. gaming-resort complex, water park, and 3
hotels” on the Taunton site. Id. at 5.
September 18, 2015, the Secretary issued a written decision
(the “Secretary’s Decision” or
“Record of Decision”) granting the
Mashpees’ fee-to-trust application. See id.;
Admin. R. 000049 (memorandum from the Assistant Secretary of
Indian Affairs to the Regional Director, Eastern Region,
approving the Mashpees’ request that the Department
acquire land in trust in Taunton “for gaming and other
purposes” and declare the acquired land the
Mashpees’ “initial reservation”). As
relevant to the matter at issue here, the Secretary
specifically found that “the Mashpee Tribe
qualifies” -- i.e., is “eligible to receive land
into trust under the IRA” -- pursuant to the second
definition of “Indian” set forth in Section 479
of the IRA. R. Decision 112.
parties acknowledge that the land was subsequently taken into
trust on November 10, 2015. Am. Compl. Decl. and Inj. Relief
¶¶ 78, 82, ECF No. 12; United States’ Mem.
Law Supp. Mot. Partial Dismissal 1, 9, ECF No. 17. In the
months since, development of the Taunton site has been widely
reported. See, e.g., Sean P. Murphy, Mashpee
Tribe Speeds Up Timetable For Taunton Casino Opening,
Boston Globe (Mar. 14, 2016)
Philip Marcelo, Tribe Breaks Ground on Massachusetts’
Latest Casino Project, WBUR News (Apr. 05, 2016)
Plaintiffs filed suit challenging the Secretary’s
Decision on February 4, 2016, Compl. Decl. and Inj. Relief,
ECF No. 1, and later amended their complaint to include
additional claims, Am. Compl. Decl. and Inj. Relief, ECF No.
12. The government timely moved to dismiss the
Plaintiffs’ fifth through eighth causes of action.
United States’ Mot. Partial Dismissal, ECF No. 16;
United States’ Mem. Law Supp. Mot. Partial Dismissal,
ECF No. 17.
27, 2016, the Plaintiffs filed their opposition to the
government’s partial motion to dismiss. Pls.’
Mem. Law Opp’n Defs.’ Mot. Partial Dismissal, ECF
No. 22. The same day, the Plaintiffs moved for a preliminary
injunction on the basis of their first cause of action,
seeking that the land at issue be removed from trust, or, at
minimum, that further development of the site be halted. Mot.
Prelim. Inj. or Writ, ECF No. 25; Pls.’ Mem. Law Supp.
Mot. Prelim. Inj. or Writ (“Pls.’ Mem. Supp.
Prelim. Inj.”), ECF No. 26. They also requested that
the Court “advance the merits of” the first cause
of action to permit the parties to then “exercise their
right under 28 U.S.C. 1292(a) to immediately appeal this
central, dispositive issue.” Pls.’ Mem. Supp.
Prelim. Inj. 6. The government opposed the Plaintiffs’
motion. United States’ Mem. Opp’n Pls.’
Mot. Prelim. Inj. or Writ (“Defs.’ Mem.
Opp’n Prelim. Inj.”), ECF No. 38.
hearing on June 20, 2016, the Court combined further hearing
on the injunction with trial on the merits, Fed.R.Civ.P.
65(a), and scheduled further oral argument for July 11, 2016,
with additional briefing and production of the administrative
record to occur in the interim. Elec. Clerk’s Notes,
ECF No. 40. On June 29, 2016, following a final pretrial
conference, Elec. Clerk’s Notes, ECF No. 49, the Court
entered a joint stipulation limiting the scope of the
upcoming hearing to the merits of the Plaintiffs’ first
cause of action, Stip. and Order Limiting Scope Rule 65(a)(2)
Trial Plaintiffs’ First Cause Action and Deferring
Other Matters Pending Disposition Same, ECF No. 48. The other
seven counts in the Plaintiffs’ complaint were
administratively closed. Elec. Clerk’s Notes, ECF No.
government filed the administrative record in two pieces on
June 30, 2016, and July 6, 2016. See Notice Filing Certified
Provisional Admin. R., ECF No. 51; Notice Filing Certified
Second Provisional Admin. R., ECF No. 52. On July 7, 2016,
the parties filed cross-motions for summary judgment on the
first cause of action along with supporting memoranda. United
States’ Mot. Partial Summ. J., ECF No. 55; United
States’ Mem. Law. Supp. United States’ Mot.
Partial Summ. J. (“Defs.’ Mem.”), ECF No.
56; Pls.’ Mot. Summ. J. First Cause Action, ECF No. 58;
Pls.’ Mem. Law Supp. Mot. Summ. J. (“Pls.’
Mem.”), ECF No. 59. The Court heard oral argument on
the parties’ summary judgment motions on July 11, 2016,
and took the matter under advisement. Elec. Clerk’s
Notes, ECF No. 67. The parties have since filed supplemental
memoranda. United States’ Supp. Mem. Law Supp. United
States’ Mot. Partial Summ. J. (“Defs.’
Supp. Mem.”), ECF No. 81; Pls.’ Post-Hearing Mem.
Law (“Pls.’ Supp. Mem.”), ECF No.
Plaintiffs’ first cause of action challenges the
Secretary’s determination that the Mashpees are
eligible beneficiaries of the IRA provision that grants the
Secretary authority to acquire and hold land in trust
“for the purpose of providing land for Indians.”
25 U.S.C. § 465. Specifically, the Plaintiffs argue that
the Mashpees do not qualify as “Indian” under the
definitions section of the IRA, 25 U.S.C. § 479, and
accordingly, that the Secretary lacked authority to acquire
land in trust for their benefit. The government, meanwhile,
contends that the definition of “Indian” at issue
here is ambiguous, that the Secretary permissibly interpreted
it to include the Mashpees, and that the Secretary’s
interpretation is entitled to deference.
Court first discusses the standard of review it must apply in
its review of these cross-motions. It then sketches the
applicable legal framework, before finally applying that
framework to the particulars of this case.
Standard of Review
Plaintiffs are entitled to judicial review of the
Department’s action under Chapter 7 of the APA. See 5
U.S.C. §§ 702, 704. The scope of the Court’s
review is governed by Section 706, which provides that,
“[t]o the extent necessary to [its] decision and when
presented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the
terms of an agency action.” Id. § 706.
Further, it empowers courts to “hold unlawful and set
aside agency action, findings, and conclusions” that
are held to be, inter alia, “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law;” or “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory
First Circuit has stated, somewhat confusingly, that an
agency’s legal conclusions “engender de novo
review, but with some deference to the agency’s
reasonable interpretation of statutes and regulations that
fall within the sphere of its authority.” Jianli
Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012); see
also Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009)
(“We review legal questions de novo, with appropriate
deference to the agency’s interpretation of the
underlying statute in accordance with administrative law
principles.”) (internal quotation marks and citation
omitted). This articulation of the applicable standard of
review is perplexing because de novo review means no
deference ought be given. See, e.g., Orndorf v. Paul
Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005)
(“[N]o deference is given to the administrator's
interpretation of the plan language. Rather, the court
interprets the plan de novo[.]”).
Court interprets the First Circuit’s statement as a
muddled articulation of the two-step legal framework set
forth in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). Under so-called Chevron
deference, the Court must first ask “whether Congress
has directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the
matter.” Id. at 842; see also Holly Farms
Corp. v. Nat’l Labor Relations Bd., 517 U.S. 392,
398 (1996) (“If a statute’s meaning is plain, . .
. reviewing courts must give effect to the unambiguously
expressed intent of Congress.”) (internal quotation
marks and citation omitted). At this first step, then, the
agency’s interpretation receives no deference. If there
is ambiguity -- i.e., the Court has determined that a statute
is susceptible to multiple reasonable interpretations,
see, e.g., Holly Farms Corp., 517 U.S. at 398-99 --
then the Court must defer to the agency’s
interpretation, so long as it is “rational and
consistent with the statute, ” Sullivan v.
Everhart,494 U.S. 83, 89 (1990) (internal quotation
marks and citation omitted). Thus, the First Circuit’s
articulations of the standard of review of agency actions
quoted above are flawed to the extent they suggest that