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Littlefield v. United States Department of Interior

United States District Court, D. Massachusetts

July 28, 2016

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,
v.
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

         I. INTRODUCTION

         This 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’ benefit.

         A. Factual Background[1]

         The Mashpees are a federally recognized tribe that obtained official acknowledgement from the BIA in 2007.[2] 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. 1-1.[3] 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 4.[4] 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.

         On 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.

         Both 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) https://www.bostonglobe.com/metro/2016/03/14/mashpee-wampanoag-tribe-prepares-unveil-schedule-for-massive-casino-taunton/eHpal5nQfslYIyNgaSuFBJ/story.html; Philip Marcelo, Tribe Breaks Ground on Massachusetts’ Latest Casino Project, WBUR News (Apr. 05, 2016) http://www.wbur.org/news/2016/04/05/tribe-breaks-ground-casino.

         B. Procedural History

         The 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.

         On May 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.

         At a 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. 49.

         The 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. 82.[5]

         II. ANALYSIS

         The 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.

         The 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.

         A. Standard of Review

         The 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 right[.]” Id.

         The 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[.]”).

         The 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 ...


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