Tohono O'odham Nation v. Glendale, City of et al

Filing 36

ORDER granting in part and denying in part 28 Motion for Summary Judgment; granting in part and denying in part 23 Motion for Summary Judgment. Summary judgment is granted in favor of Plaintiff on the preemption claim asserted in count one, and i n favor of Defendants on counts two through six. The Court declares that H.B. 2534, as applied in this case, is preempted by the Gila Bend Act, Pub. L. No. 99-503, 100 Stat. 1798 (Oct. 20, 1986). The Clerk is directed to enter judgment accordingly. Signed by Judge David G Campbell on 6/30/11.(DMT)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 The Tohono O’odham Nation, Plaintiff, 11 12 13 No. CV-11-279-PHX-DGC ORDER vs. The City of Glendale; and the State of Arizona, 14 Defendants. 15 16 The Tohono O’odham Nation purchased unincorporated land surrounded by the 17 City of Glendale, asked the Department of the Interior to take the land into trust, and 18 announced plans to construct and operate a major casino on the property. In response, 19 the Arizona Legislature passed House Bill 2534 on February 1, 2011. The bill authorizes 20 cities and towns within Arizona’s three largest counties, which would include the City of 21 Glendale, to use an expedited procedure to annex land surrounded or nearly surrounded 22 by the city or town if the owner of the land has asked the federal government to take 23 ownership of the land or to take the land into trust. In this lawsuit, the Nation asks the 24 Court to declare H.B. 2534 invalid and enjoin Glendale from using it to annex the 25 Nation’s land. 26 Docs. 23, 28, 30, 31, 32. The Court heard oral arguments on June 17, 2011. Docs. 33, 27 35. For reasons that follow, the Court holds that H.B. 2534 is preempted by federal law. 28 The parties have filed and briefed motions for summary judgment. 1 I. Background. 2 In 1986, Congress enacted the Gila Bend Indian Reservation Lands Replacement 3 Act (the “Gila Bend Act” or the “Act”), Pub. L. No. 99-503, 100 Stat. 1798 (Oct. 20, 4 1986). The general purposes of the Act were to replace the Nation’s reservation land that 5 was destroyed by a federal dam, and otherwise to promote the Nation’s economic self- 6 sufficiency. Id. § 2(4). Pursuant to the Act, the Nation transferred 9,880 acres of 7 reservation land to the United States in exchange for $30 million to purchase replacement 8 land. 9 Secretary of the Interior to take up to 9,880 acres of purchased land into trust for the 10 benefit of the Nation, a step that would effectively make the purchased land part of the 11 Nation’s reservation. Id. § 6(d). One of the Act’s requirements for trust acquisition is 12 that the land not be within the corporate limits of any city or town. Id. Id. §§ 4(a), 6(c). Where certain requirements are met, the Act requires the 13 In August 2003, the Nation purchased a 135-acre tract of land near 91st and 14 Northern Avenues in Maricopa County. The land is part of an unincorporated county 15 island surrounded by the City of Glendale. On January 28, 2009, the Nation announced 16 plans to use the land for gaming purposes and filed with the Department of the Interior 17 (“DOI”) an application to have the land taken into trust under the Gila Bend Act. 18 Because gaming activities may take place on the land only if it is part of the Nation’s 19 reservation, having the land held in trust is a prerequisite to construction of the proposed 20 casino. If the land were to be annexed by Glendale, it may be ineligible for trust 21 acquisition under the Act as it would be within Glendale’s corporate limits. The 135-acre 22 tract will be referred to in the remainder of this order as “the Nation’s land.” 23 On March 12, 2010, due to an ongoing state-court lawsuit over whether Glendale 24 previously had annexed a portion of the Nation’s land identified in title documents as 25 “Parcel 1,” the Nation requested that DOI accept only “Parcel 2” in trust and hold the 26 remainder of the application in abeyance pending resolution of the state-court case.1 27 28 1 The Arizona Court of Appeals has now ruled in favor of the Nation. See Tohono -2- 1 Parcel 2 consists of 54 acres on the westernmost part of the Nation’s land. DOI issued its 2 decision on July 23, 2010, concluding that the legal requirements for taking Parcel 2 into 3 trust had been satisfied. This Court upheld that decision in a related case. See Gila River 4 Indian Community v. United States, --- F. Supp. 2d ---, 2011 WL 826282 (D. Ariz. Mar. 5 3, 2011). This ruling is on appeal. 6 The Nation’s plans to build a casino have evoked vigorous opposition by 7 Glendale, Arizona legislative and executive branch leaders, and others. During the 2010 8 legislative session, the Arizona House of Representatives passed a bill that would have 9 streamlined the process for a city or town to annex certain land. The bill failed to pass 10 the Senate before the legislative session ended. 11 H.B. 2534 was passed early in the next legislative session and signed into law on 12 February 1, 2011. The bill, codified at A.R.S. § 9-471.04, provides that “[a] city or town 13 located in a county with a population of more than three hundred fifty thousand persons 14 may annex any territory within an area that is surrounded by the city or town or that is 15 bordered by the city or town on at least three sides if the landowner has submitted a 16 request to the federal government to take ownership of the territory or hold the territory 17 in trust.” A.R.S. § 9-471.04(A)(1). For purposes of the statute, “submitted a request 18 to the federal government” means the landowner “has made an application to the 19 federal government as required by a specific federal statute or regulation.” 20 § 9-471.04(B). The annexation of land pursuant to H.B. 2534 “is valid if approved by a 21 majority vote of the governing body of the city or town,” and the annexation “becomes 22 immediately operative if it is approved by at least two-third of the governing body of the 23 city or town.” A.R.S. § 9-471.04(A)(2). H.B. 2534 differs from Arizona’s general 24 annexation statute, A.R.S. § 9-471, which requires notice, a 30-day waiting period, a 25 public hearing, and the consent of a majority of the landowners before annexation can 26 occur. H.B. 2534 will take effect on July 19, 2011. 27 28 A.R.S. O’odham Nation v. City of Glendale, --- P.3d ----, 2011 WL 1815963, at *3 (Ariz. Ct. App. May 3, 2011). Glendale has sought review by the Arizona Supreme Court. -3- 1 The Nation claims that H.B. 2534, as applied to the Nation’s land, is preempted by 2 the Gila Bend Act, violates the Nation’s due process and equal protection rights, and 3 violates the Arizona Constitution’s prohibition against special legislation. Doc. 1. 4 I. As-Applied Challenge. 5 Defendants contend that because H.B. 2534 has not been applied to the Nation’s 6 land, the Nation’s as-applied challenge fails as a matter of law. Doc. 28 at 11-12.2 The 7 Court does not agree. 8 The relevant inquiry is whether the Nation has presented a justiciable case or 9 controversy. The Supreme Court made clear decades ago that an action for declaratory 10 relief can constitute a case or controversy under Article III of the United States 11 Constitution where it has “the essentials of an adversary proceeding, involving a real, not 12 a hypothetical, controversy[.]” Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 346- 13 49 (1933). 14 determining whether a claim for declaratory relief is justiciable: “‘whether the facts 15 alleged, under all the circumstances, show that there is a substantial controversy, between 16 parties having adverse legal interests, of sufficient immediacy and reality to warrant the 17 issuance of a declaratory judgment[.]’” MedImmune, Inc. v. Genentech, Inc., 546 U.S. 18 118, 127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 19 (1941)); see also Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (to have 20 standing, the plaintiff “must have suffered, or be threatened with, an actual injury 21 traceable to the defendant and likely to be redressed by a favorable judicial decision”). 22 The Nation’s claim clearly satisfies this standard. More recently, the Supreme Court reaffirmed the basic standard for 23 As noted above, Glendale strongly opposes the Nation’s plans to build a casino 24 within its boundaries. If the Nation’s land is taken into trust, Glendale will lose all 25 authority to annex the land as well as its present control over the land’s use. Doc. 29 26 27 28 2 Citations to pages in the parties’ briefs and other filings in the Court’s electronic docket will be to page numbers applied to the top of each page by the electronic docket system, not to page numbers at the bottom of each page. -4- 1 ¶ 21. Contrary to Glendale’s assertion (Doc. 32 at 7), the Nation’s concern that Glendale 2 will make every effort to annex the land under H.B. 2534 is based on more than 3 unfounded speculation. 4 Glendale previously attempted to annex portions of the land, and that attempt was 5 thwarted only after the Nation brought suit against the City in state court. See Docs. 23, 6 24 ¶¶ 3; Tohono O’odham Nation v. City of Glendale, --- P.3d ----, 2011 WL 1815963 7 (Ariz. Ct. App. May 3, 2011). In passing H.B. 2534, the Arizona legislature was well 8 aware of the injuries Glendale would suffer if the land were to be held in trust. Doc. 29 9 ¶ 32. Glendale notes that a number of steps must take place before the land is annexed 10 under H.B. 2534 (Doc. 32 at 7), but counsel for the City can provide no assurance that 11 annexation will not occur given that “Glendale’s representatives do not have the power to 12 bind the City Council from undertaking legislative acts” (Doc. 27 ¶ 9). 13 Moreover, this is one of three federal lawsuits concerning the Nation’s plan to 14 construct a casino. Glendale is a plaintiff in two of those actions – this case and Gila 15 River Indian Community, et al. v. United States, CV10-1993-PHX-DGC. The lawsuits 16 are hard-fought and the issues fully joined. The Court has issued merits decisions in both 17 related cases, expressly concluding that the issues presented by the Nation’s casino plans 18 are ripe for judicial review. See Arizona v. Tohono O’odhom Nation, No. CV11-0296- 19 PHX-DGC, 2011 WL 2357866, at *4-6 (D. Ariz. June 15, 2011). 20 In short, the Court has no doubt that Glendale will use every available legal means 21 to block the Nation’s planned casino, including the annexation powers granted by H.B. 22 2534. The controversy presented by this case is of “sufficient immediacy and reality” to 23 present justiciable claims on the validity of H.B. 2534. MedImmune, 546 U.S. at 127. 24 Defendants’ reliance on Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003), is 25 misplaced. In making a First Amendment challenge to an ordinance banning the 26 possession of firearms on county property, the plaintiffs in Nordyke relied on 27 “hypotheticals and examples” to illustrate that gun possession is speech. 319 F.3d at 28 -5- 1 1189. The Nation’s challenge to H.B. 2534 is premised not on hypothetical situations, 2 but on the very real threat that Glendale will exercise its authority under H.B. 2534 to 3 annex the Nation’s land immediately after July 19, 2011. Where “threatened action by 4 government is concerned,” plaintiffs need not leave themselves exposed, but instead may 5 bring “suit to challenge the basis for the threat – for example, the constitutionality of a 6 law threatened to be enforced.” MedImmune, 546 U.S. at 129 (emphasis in original); see 7 Gonzales v. Carhart, 550 U.S. 124, 166 (2007) (a preenforcement, as-applied challenge 8 to a law may be maintained where it presents a “discrete and well-defined” application of 9 the law that is “likely to occur”). That is precisely the case here. 10 II. Preemption (Count One). 11 The Supremacy Clause of the United States Constitution provides that the 12 “Constitution, and the Laws of the United States which shall be made in Pursuance 13 thereof . . . shall be the supreme Law of the Land . . . , any Thing in the Constitution or 14 Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI cl. 2. Under 15 this clause, “Congress has the power to preempt state law.” Crosby v. Nat’l Foreign 16 Trade Council, 530 U.S. 363, 372 (2000). Indeed, as the Supreme Court confirmed only 17 days ago, “[t]he Supremacy Clause, on its face, makes federal law ‘the supreme Law of 18 the Land’ even absent an express statement by Congress.” Pliva, Inc. v. Mensing, --- 19 S. Ct. ---, 2011 WL 2472790, at *10 (June 23, 2011), 20 The preemption doctrine consists of three well-recognized classes: express, field, 21 and conflict preemption. Conflict preemption comes in two forms, impossibility and 22 obstacle preemption. See id. at 372-73. Obstacle preemption arises when a challenged 23 state law stands as an obstacle to the accomplishment and execution of the full purposes 24 and objectives of Congress. Id. at 373. The Nation asserts obstacle preemption, arguing 25 that H.B. 2534 seeks to nullify the Gila Bend Act, upsets the balance Congress struck in 26 the Act, and imposes discriminatory burdens on the exercise of federal rights granted in 27 the Act. Docs. 23 at 19-24, 30 at 10. 28 -6- 1 Two cornerstones of preemption jurisprudence must guide the Court’s analysis of 2 this claim. Wyeth v. Levine, 129 S. Ct. 1187, 1194 (2009). First, the “‘purpose of 3 Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, Inc. v. Lohr, 4 518 U.S. 470, 485 (1996) (citations omitted). Second, in “all pre-emption cases, and 5 particularly those in which Congress has ‘legislated in a field which the States have 6 traditionally occupied,’ [courts] ‘start with the assumption that the historic police powers 7 of the States were not to be superseded by the Federal Act unless that was the clear and 8 manifest purpose of Congress.” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 9 218, 230 (1947)). The Court will address Congress’ purposes in the Gila Bend Act 10 below, but first will consider whether the presumption against preemption applies. 11 A. Presumption Against Preemption. 12 Supreme Court and the Ninth Circuit cases are not entirely clear when addressing 13 the presumption against preemption. The Supreme Court’s opinion in Wyeth explained 14 that the presumption applies in “all pre-emption cases, and particularly those in which 15 Congress has legislated in a field which the States have traditionally occupied.” Id. 16 (quotation makes and citations omitted, emphasis added). Wyeth explained that “[w]e 17 rely on the presumption because respect for the States as ‘independent sovereigns in our 18 federal system’ leads us to assume that ‘Congress does not cavalierly pre-empt state-law 19 causes of action.’” Id. at 1195 n. 3 (quoting Medtronic, 518 U.S. at 485). Wyeth 20 explained that the applicability of the presumption does not depend “on the absence of 21 federal regulation.” Id. 22 A few years earlier, in United States v. Locke, 529 U.S. 89 (2000), the Supreme 23 Court provided different guidance. Locke stated that the presumption “is not triggered 24 when the State regulates in an area where there has been a history of significant federal 25 presence.” Id. at 108. Noting that the state laws in question bore upon national and 26 international maritime commerce – matters traditionally subject to federal regulation – 27 Locke held “there is no beginning assumption that concurrent regulation by the State is a 28 -7- 1 valid exercise of its police powers.” Id. Thus, Wyeth states that the presumption applies 2 in “all” cases, and Locke states that it does not apply in areas traditionally subject to 3 federal regulation.3 4 Ninth Circuit cases appear to have perpetuated this dichotomy. In Pacific 5 Merchant Shipping Ass’n v. Goldstene, --- F.3d ---, 2011 WL 1108201 (9th Cir. Mar. 28, 6 2011), the Ninth Circuit recognized the statement in Locke, but characterized Wyeth as 7 “further explain[ing] the proper scope of this presumption against preemption.” Id. at *9. 8 Noting that States historically have regulated air pollution, the Ninth Circuit applied the 9 presumption notwithstanding the fact that Congress has also historically regulated air 10 pollution. Id. Other Ninth Circuit cases, by contrast, have followed Locke and declined 11 to apply the presumption in areas with a “history of significant federal presence.” See 12 United States v. Arizona, --- F.3d ----, 2011 WL 1346954, at *11 n.16 (9th Cir. Apr. 11, 13 2011) (immigration); In re Korean Air Lines Co., --- F.3d ----, 2011 WL 1458794, at *4 14 n.6 (9th Cir. Apr. 18, 2011) (navigable air space). 15 For two reasons, the Court concludes that the presumption against preemption 16 applies in this case. First, the Supreme Court’s most recent non-plurality pronouncement 17 states that the presumption applies in “all” cases. Wyeth, 129 S. Ct. at 1194. Second, 18 H.B. 2534 ultimately implicates a city’s authority to extend its corporate limits through 19 annexation, an area of law historically subject to state regulation. Pacific Merchant, 2011 20 WL 1108201, at *10. 21 The Nation argues that the subject addressed in H.B. 2534 is not municipal 22 annexation, but tribal land acquisitions – an area traditionally reserved for federal 23 24 25 26 27 28 3 The confusion over the presumption continues. In the Pliva case handed down last week, a four-member plurality of the Supreme Court did not apply the presumption and instead concluded that the Supremacy Clause suggests that “federal law should be understood to impliedly repeal conflicting state law” and “courts should not strain to find ways to reconcile federal law with seemingly conflicting state law.” 2011 WL 2472790 at *10. Four dissenting justices took issue with this approach, noting that “[f]or more than half a century, we have directed courts to presume that congressional action does not supersede ‘the historic police powers of the States unless that was the clear and manifest purpose of Congress.’” Id. at *21 (quoting Rice, 331 U.S. at 230 (emphasis in original)). -8- 1 regulation. The Nation bases this argument on the fact that annexation under H.B. 2534 2 can occur only when a landowner has “submitted a request to the federal government to 3 take ownership of the territory or hold the territory in trust.” A.R.S. § 9-471.04(A)(1). 4 Thus, the Nation argues, the bill applies only when a tribe has requested that land be 5 taken into trust and therefore clearly seeks to regulate Indian affairs. 6 Although it is true that the bill applies only when a request has been made to the 7 federal government, the triggering requests are not limited to Indian land matters. The 8 powers of H.B. 2534 are triggered not only by a request to hold land “in trust” for a tribe, 9 but also by a request that the federal government “take ownership” of land pursuant to a 10 federal statute or regulation. Id. Thus, for example, a proposal to exchange private land 11 for federal land, which necessarily would include a request that the federal government 12 “take ownership” of the private land, would appear to trigger H.B. 2534. See, e.g., Greer 13 Coalition. Inc. v. United States Forest Service, No. CV 09-8239-PCT-DGC, 2011 WL 14 671750 (D. Ariz. Feb. 16, 2011) (proposal to exchange private land for federal land under 15 the Federal Land Policy Management Act). The Court therefore cannot conclude that the 16 application of H.B. 2534 is limited to tribal land acquisitions. 17 In addition, courts have looked to the broader purposes of a state statute when 18 deciding whether it concerns matters of historical federal regulation. For example, the 19 state rules at issue in Pacific Merchant concerned fuels used in maritime vessels, an area 20 historically subject to federal regulation, and yet the Ninth Circuit looked more broadly 21 and held that the state rules “ultimately implicate” air pollution, a matter of historical 22 state regulation. 2011 WL 1108201 at *10. Similarly, although H.B. 2534 certainly can 23 be used to affect tribal acquisition of land surrounded by a municipality, its overarching 24 goal is to preserve the municipality’s control of land within its boundaries, a matter 25 historically regulated by states. The presumption applies to such traditional state matters. 26 Cases relied on by the Nation are not persuasive. White Mountain Apache Tribe v. 27 Bracker, 448 U.S. 136 (1980), involved the application of state taxes to activities on an 28 -9- 1 Indian reservation. Id. at 138, 144. Traditional preemption analysis was unhelpful 2 because whether the exercise of state authority over reservation activities would violate 3 federal law “called for a particularized inquiry into the nature of the state, federal, and 4 tribal interests at stake[.]” Id. at 145. Nothing in H.B. 2534 purports to tax or otherwise 5 regulate activities on existing reservation land.4 6 In summary, the Court concludes that the presumption against preemption applies. 7 As a result, the Gila Bend Act preempts H.B. 2534 only if preemption was “the clear and 8 manifest purpose of Congress.” Wyeth, 129 S. Ct. at 1194. 9 B. Preemption Analysis. 10 As already noted, obstacle preemption exists where, under the circumstances of a 11 particular case, the challenged state law stands as an obstacle to the accomplishment and 12 execution of the full purposes and objectives of Congress. Hines v. Davidowitz, 312 U.S. 13 52, 67 (1941); see Perez v. Campbell, 402 U.S. 637, 649-50 (1971) (collecting cases to 14 show that since Hines the Supreme Court has “adhered to this meaning of the Supremacy 15 Clause”). “What is a sufficient obstacle is a matter of judgment, to be informed by 16 examining the federal statute as a whole and identifying its purpose and intended 17 effects[.]” Crosby, 530 U.S. at 373. 1. 18 Congressional Purpose in the Gila Bend Act. 19 Congressional purpose primarily is discerned from the language of the statute 20 itself. Medtronic, 518 U.S. at 486. Also relevant, however, is the “‘structure and purpose 21 of the statute as a whole,’ as revealed not only in the text, but through the reviewing 22 court’s reasoned understanding of the way in which Congress intended the statute” to 23 operate. Id. Stated differently, “‘when the question is whether a Federal act overrides 24 state law, the entire scheme of the statute must of course be considered and that which 25 26 27 28 4 The Nation also argues that the presumption does not apply because H.B. 2534 is discriminatory (Doc. 30 at 12), but the cases cited by the Nation do not support this argument. Malabed v. N. Slope Borough, 335 F.3d 864 (9th Cir. 2003), recognized the presumption. Id. at 869. Cabazon Band of Mission Indians v. Smith, 388 F.3d 691 (9th Cir. 2004), did not discuss the presumption. - 10 - 1 needs must be implied is of no less force than that which is expressed.’” Crosby, 530 2 U.S. at 373 (quoting Savage, 225 U.S. at 533). 3 The O’odham (formerly the Papago) lived for centuries along the banks of the 4 Gila River in southwestern Arizona. In 1882, the federal government established for the 5 O’odham people a 22,000-acre reservation near Gila Bend, Arizona. The reservation was 6 reduced to roughly 10,000 acres in 1909. 7 In 1960, the federal government completed construction of Painted Rock Dam ten 8 miles downstream from the reservation. The dam was built to provide flood protection 9 for the City of Yuma and others living south of the reservation. The O’odham were told 10 that flooding from the dam would occur infrequently and would not impair their ability to 11 farm reservation land, but flooding between 1978 and 1984 far exceeded the projections 12 made when the dam was built. Floodwaters destroyed a large farm developed at tribal 13 expense and precluded all economic use of reservation lands. As a result, the O’odham 14 people were “desperate for a land base that [could] provide them realistic and reasonable 15 opportunities for economic and social development.” H.R. Rep. 99-851, at 7 (1986). 16 Recognizing the United States’ responsibility for the plight of the O’odham 17 people, and its responsibility “to exercise its plenary power over Indian affairs to find an 18 alternative land base for the O’odham people,” Congress enacted Section 308 of the 19 Southern Arizona Water Rights Settlement Act (the “Settlement Act”), Pub. L. No. 97- 20 293, 96 Stat. 1261 (Oct. 12, 1982). That section directed the Secretary of the Interior to 21 exchange federal lands for those of the Gila Bend reservation which he determined were 22 unsuitable for agriculture due to flooding. 23 concluded that reservation lands had little or no economic value, and no lands existed 24 within a 100-mile radius of the reservation which were suitable for agriculture or 25 otherwise acceptable to the Nation on a socio-economic basis. Studies completed in 1983 and 1986 26 Rather than litigating a variety of potential legal claims against the United States, 27 the Nation pursued a legislative remedy which resulted in passage of the Gila Bend Act. 28 - 11 - 1 The House Report makes clear that the legislation, like Section 308 of the Settlement Act, 2 was premised on the “responsibility of the United States, as trustee, to take action to 3 resolve the tribe’s immediate problem of an utterly uneconomic land base” and the 4 “pressing problems of the O’odham at Gila Bend.” 5 “principal purpose” of the legislation was “to provide suitable alternative lands and 6 economic opportunity for the tribe.” Id. at 9. H.R. Rep. 99-851, at 9. The 7 The Act seeks to accomplish this goal by “facilitat[ing] replacement of reservation 8 lands” with lands that, among other things, “promote the economic self-sufficiency of the 9 O’odham people.” Id. at 3-4; Pub. L. No. 99-503, § (2)(4). The Nation is authorized to 10 use funds provided under the Act to “acquire by purchase private lands.” Pub. L. No. 99- 11 503, § 6(c). Congress specifically intended that the Nation have “great flexibility” in 12 determining the use of those funds. H.R. Rep. 99-851, at 10. 13 This general purpose of the Gila Bend Act does not resolve the preemption 14 question in this case. Although it is clear that Congress intended to provide the Nation 15 with power to acquire reservation lands that would promote economic self-sufficiency, 16 Congress also clearly intended to avoid the creation of reservation lands within existing 17 cities or towns. As discussed at some length in a related decision of this Court, the Act 18 specifies that new reservation land may not fall “within the corporate limits” of a city or 19 town. Gila River, --- F. Supp. 2d ---, 2011 WL 826282 at *5-11. The Act does not 20 purport to regulate how cities or towns may incorporate land; that process is left entirely 21 to Arizona law. Thus, the mere fact that Congress intended to provide the Nation with 22 power to acquire new reservation lands that would promote economic self-sufficiency, 23 and even intended the Nation to have great flexibility in making these acquisitions, does 24 not show that Congress intended to override the annexation decisions of Arizona cities 25 and towns. To the contrary, the Act respects those decisions by providing that the Nation 26 cannot acquire land within the corporate limits of a city or town. The Court therefore 27 cannot conclude from the general purposes of the Gila Bend Act that H.B. 2534 – which 28 - 12 - 1 constitutes a duly enacted state law regulating annexation by cities and towns – conflicts 2 with the Act. The Court must look to the operation of the Act to determine whether H.B. 3 2534 presents a significant obstacle to the intent of Congress. 4 5 6 7 8 9 10 11 12 2. Operation of the Gila Bend Act. The key provision of the Act for purposes of preemption analysis is § 6(d). The relevant portions of that section read as follows: The Secretary, at the request of the Tribe, shall hold in trust for the benefit of the Tribe any land . . . which meets the requirements of this subsection. Any land which the Secretary holds in trust shall be deemed to be a Federal Indian Reservation for all purposes. Land does not meet the requirements of this subsection if it is outside the counties of Maricopa, Pinal, and Pima, Arizona, or within the corporate limits of any city or town. Pub. L. No. 99-503, § 6(d). 13 Several Congressional purposes are evident from this language. First, Congress 14 states that the Secretary of the Interior “shall” hold land in trust for the Nation if the 15 requirements of § 6(d) are satisfied. The statute is mandatory, unlike other statutes 16 authorizing acquisition of Indian trust lands. See, e.g., 25 U.S.C. § 465 (authorizing 17 Secretary, “in his discretion,” to acquire trust lands). Second, the point at which the 18 Secretary acquires this mandatory obligation is “at the request of the Tribe,” provided the 19 requirements of the section are satisfied. No other point in time is specified in § 6(d). 20 Third, land acquired by the Nation does not satisfy the requirements of § 6(d) if the land 21 “is” within the corporate limits of any city or town. The use of the present tense “is” 22 suggests that the land must not be within corporate limits when the triggering event 23 occurs – when the request is made by the Nation to the Secretary. Thus, Congress’ intent 24 with respect to the operation of Gila Band Act can be summarized as follow: when the 25 Nation asks DOI to take land into trust that is not at that time within the corporate limits 26 of any city or town, DOI has a mandatory obligation to take the land into trust provided 27 the other requirements of § 6(d) – not relevant here – are satisfied. Stated differently, 28 - 13 - 1 Congress mandated that land be taken into trust once a request was made by the Nation 2 with respect to qualifying land. 3 As part of their due process argument, Defendants contend that DOI is not under a 4 mandatory duty to take land into trust once a request is made, or even after a DOI 5 decision to take land into trust has been made. Defendants argue that DOI reserves the 6 right to reconsider trust decisions, that liens must be cleared before land finally is taken 7 into trust, and that the Nation does not acquire a vested right in property until documents 8 are signed actually taking the property into trust. Doc. 32 at 16-17. Even assuming all of 9 these points to be true, none of them disproves the clear intent of Congress expressed in 10 § 6(d) – that DOI “shall” take land into trust “at the request of the Tribe” if the land 11 “meets the requirements of this subsection.” Pub. L. No. 99-503, § 6(d). It may be true 12 that DOI has authority to reconsider the question of whether land meets all of the 13 requirements of the Act. It may also be true that land will not be taken into trust if it is 14 subject to existing liens. See Tohono O’odham Nation v. BIA, 22 I.B.I.A. 220, 237 15 (1992). But the fact that DOI must ensure that the land satisfies the requirements of the 16 Gila Bend Act and can be conveyed with clear title does not alter the fact that Congress 17 said DOI “shall” take the land into trust if these requirements are met. Nor does it alter 18 the fact that the only date § 6(d) identifies for assessing this duty is “at the request of the 19 Tribe.” 20 To summarize, Congress clearly mandated that land be taken into trust upon 21 request of the Tribe if the requirements of the Act – and presumably the fundamental real 22 estate requirement of clear title – are satisfied. Congress did not make the decision 23 discretionary as it has done in other statutes. See 25 U.S.C. § 465. Congress did not 24 mandate that DOI confer with state and local governments as is required by DOI 25 regulations for discretionary acquisitions. See 25 C.F.R. § 151.11(d).5 In this case, 26 27 28 5 This regulation provides that “[u]pon receipt of a tribe’s written request to have lands taken in trust, the Secretary shall notify the state and local governments having regulatory jurisdiction over the land to be acquired. The notice shall inform the state and - 14 - 1 Defendants do not argue that the requirements of the Act have not been satisfied or that 2 the Nation is unable to convey clear title.6 3 impediment to Congress’ mandate that the Nation’s land be taken into trust. 4 question, then, is whether the application of H.B. 2534 to the Nation’s land would stand 5 as an obstacle to that mandate. 6 3. Defendants thus have identified no The Does H.B. 2534 Conflict With the Purposes of the Act? 7 The Nation filed an application on January 28, 2009, requesting that DOI take the 8 Nation’s land into trust. On that date, the property was not within the corporate limits of 9 Glendale and Defendants do not contend that the land otherwise failed to satisfy the 10 requirements of § 6(d). Thus, as of January 28, 2009, Congress’ intent under the Gila 11 Bend Act was that the land be taken into trust. 12 H.B. 2534 clearly conflicts with this Congressional intent. The bill was enacted in 13 2011, long after DOI’s obligation to take the land into trust arose. H.B. 2534’s clear 14 purpose and effect would be to block DOI from taking the land into trust, contrary to the 15 express command of Congress. Application of H.B. 2534 to the Nation’s land thus 16 would stand as an “obstacle to the accomplishment and execution of the full purposes and 17 objectives of Congress.” Hines, 312 U.S. at 67. 18 With respect to Parcel 2, DOI specifically found on July 23, 2010, that the legal 19 requirements under Gila Bend Act had been satisfied. Doc. 23-4; see 75 Fed. Reg. 20 52550-01, 52550-51 (Aug. 26, 2010). DOI found that Parcel 2 was not “within the 21 corporate limits” of Glendale because the City “has never annexed Parcel 2[.]” Doc. 23-4 22 23 24 25 26 27 28 local government that each will be given 30 days in which to provide written comment as to the acquisition’s potential impacts on regulatory jurisdiction, real property taxes and special assessments.” 25 C.F.R. § 151.11(d). Congress could have imposed similar requirements in the Gila Bend Act, and yet neither made the Act discretionary nor imposed an obligation for DOI to confer with state and local governments. Congress instead stated that DOI “shall” take the land into trust if the requirements of § 6(d) are satisfied. 6 Defendants did argue in a related case that the requirements of § 6(d) have not been satisfied with respect to the Nation’s land, but the Court did not accept those arguments. See Gila River, --- F. Supp. 2d ---, 2011 WL 826282. - 15 - 1 at 6. That decision was later affirmed by this Court. Gila River, --- F. Supp. 2d ---, 2011 2 WL 826282. Glendale’s use of H.B. 2534 to annex Parcel 2 clearly would obstruct the 3 command of Congress that Parcel 2 now be taken into trust. 4 With respect to Parcel 1 – the portion of the Nation’s land which Glendale claimed 5 to have annexed previously and that therefore became embroiled in state-court litigation – 6 the Nation never withdrew its request that DOI take the parcel into trust. DOI is holding 7 the request in abeyance pending resolution of the state-court litigation. See Doc. 23-4 at 8 2-3. The Nation has made clear that if the state-court lawsuit is resolved in its favor, as 9 appears likely given the state-court decisions to date, it will ask DOI to take both parcels 10 in trust “as a single, contiguous area” pursuant to the Gila Bend Act. See AR758-62. 11 Thus, Parcel 1 remains the subject of a request and DOI has a mandatory obligation to 12 take the land into trust if the requirements of § 6 (d) are satisfied. Glendale’s annexation 13 of the land under H.B. 2534 would obstruct the Act’s objectives. 14 H.B. 2534’s conflict with the Act is evident from another line of cases as well. 15 H.B. 2534 would cause the Nation to lose important voting and hearing opportunities that 16 otherwise would be available under Arizona’s general annexation law. 17 § 9-471. Although those opportunities are not available to the Nation as a matter of 18 constitutional right, see Green v. City of Tucson, 340 F.3d 891, 896-98 (9th Cir. 2003), 19 they are statutory rights that H.B. 2534 eliminates once the Nation has requested that its 20 land be held in trust. “This burdening of a federal right . . . is not the natural or 21 permissible consequence of an otherwise neutral, uniformly applicable state [law].” 22 Felder v. Casey, 487 U.S. 131, 144 (1988). The Nation’s land is subject to annexation 23 under H.B. 2534 specifically because the Nation has “submitted a request to the federal 24 government” to hold the land in trust “as required by a specific federal statute[.]” A.R.S. 25 § 9-471.04. 26 significantly, the exercise of a power that Congress explicitly granted.” Barnett Bank of 27 Marion County, N.A. v. Nelson, 517 U.S. 25, 33 (1996). See A.R.S. Congress, of course, “would not want States to forbid, or to impair 28 - 16 - Because H.B. 2534 1 “discriminates against the precise type of [right] Congress has created” in the Gila Bend 2 Act – that is, it denies statutory hearing and voting rights only to those who have asked 3 the federal government to take ownership of private land or to hold the land in trust – the 4 state statute “must yield” to the act of Congress. Felder, 487 U.S. at 145; see Crosby, 5 530 U.S. at 378 (state statute conflicted with federal law by “penalizing individuals and 6 conduct that Congress has explicitly exempted or excluded from sanctions”); Toll v. 7 Moreno, 458 U.S. 1, 17 (1982) (finding state tuition law preempted where, given the 8 federal government’s favorable treatment of certain aliens, the Court could not “conclude 9 that Congress ever contemplated that a State, in the operation of a university, might 10 impose discriminatory tuition charges and fees solely on account of the federal 11 immigration classification”). 12 Because application of H.B. 2534 to the Nation’s land clearly would frustrate 13 Congress’ purpose in the Gila Bend Act, and would deprive the Nation of traditional 14 annexation hearing and voting rights solely because it exercised its right under the Act, 15 the Court must find that H.B. 2534 is preempted. 16 confirmed, “[w]here state and federal law ‘directly conflict,’ state law must give way.” 17 Pliva, --- S. Ct. ---, 2011 WL 2472790, at *8. 18 4. As the Supreme Court recently The Purposes of H.B. 2534. 19 Defendants argue that the Court must look only to the text of H.B. 2534 and not 20 consider its legislative purpose. Doc. 35 at 39. Although the Court finds the text of 21 H.B. 2534 sufficient to establish preemption, the Court’s analysis need not be limited to 22 the text. Courts conducting preemption analysis may look to the “both the state law’s 23 purpose and its effect.” Goodspeed Airport, LLC, 681 F. Supp. 2d 182, 200 (D. Conn. 24 2010) (emphasis in original); Sparks v. R.J. Reynolds Tobacco Co., No. C94-783C, 1994 25 WL 1618544, at *2 (W.D. Wash. Dec. 9, 1994) (same); see English v. GE Co., 496 U.S. 26 72, 84 (1990) (“part of the pre-empted field is defined by reference to the purpose of the 27 state law in question, [and] another part of the field is defined by the state law’s actual 28 - 17 - 1 effect”); N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 2 514 U.S. 645, 658 (1995) (looking at the “purpose and effect” of the state law).7 3 Consideration of the Arizona Legislature’s purpose in H.B. 2534 confirms that the 4 bill is subject to obstacle preemption. The Arizona Legislature clearly sought to block 5 application of the Gila Bend Act to the Nation’s property near Glendale. A lead sponsor 6 of H.B. 2534 stated that the bill arose from the “power grab by the federal government,” 7 and that the legislature was “fighting an overreaching, intrusive federal government.” 8 Doc. 23-7 at 140-41. The legislator went on to explain that the bill “clarifies that the Gila 9 Bend Act does not apply to county islands” – a clear indication that H.B. 2534 was 10 intended to alter the effect of the Gila Bend Act. Id. at 214. One of the bill’s co-sponsors 11 stated that he was “not a big fan” of the Gila Bend Act because it allowed the Nation to 12 “cherry pick” land and have it declared tribal land. Id. at 151. Another co-sponsor stated 13 that because “the Constitution dictates that states are sovereign,” the Gila Bend Act was 14 “not the supreme law” of the land to the extent it allowed the Nation “to take sovereign 15 land out of the state with an act of Congress.” Id. at 19-20. 16 In short, the Arizona Legislature’s stated purpose in passing H.B. 2534 was to 17 block the Nation’s acquisition of trust land under the Gila Bend Act. This legislative 18 intent confirms the Court’s conclusion that H.B. 2534 conflicts with the Gila Bend Act. 19 C. Preemption Conclusion. 20 Although the Court certainly is sympathetic to the State’s desire to control 21 annexation of municipal lands and to avoid federal acquisition of land surrounded or 22 virtually surrounded by a city or town, particularly when the acquisition may allow 23 24 25 26 27 28 7 Defendants’ reliance on Perez v. Campbell is misplaced. In Perez, the Supreme Court rejected the “aberrational doctrine” that state law is not preempted so long as the state legislature had some purpose in mind other than one of frustrating federal law. 402 U.S. at 651-52. Stated differently, state legislatures cannot avoid preemption simply by publishing a legislative committee report articulating some state interest or policy other than frustration of the federal objective. Id. at 652. Perez does not stand for the proposition that the purpose of the state law is irrelevant to the question of preemption. To the contrary, the Arizona statute at issue in Perez impermissibly frustrated federal law because it had “both that effect and that purpose.” Id. at 653 (emphasis added). - 18 - 1 gambling in a community that strongly opposes it, the Supremacy Clause of the United 2 States Constitution prohibits state legislatures from enacting laws that “directly conflict” 3 with a federal statute. Pliva, --- S. Ct. ---, 2011 WL 2472790, at *8; Crosby, 530 U.S. at 4 372. For reasons explained above, the Court finds that H.B. 2534 directly conflicts with 5 Congress’ intent that the Nation’s land be taken into trust under the Gila Bend Act. As a 6 result, H.B. 2534 is preempted by the Act. This is true even though the analysis includes 7 a presumption against preemption. The Court finds that the clear and manifest purpose of 8 Congress in the Gila Bend Act is that land be taken into trust once a request is made 9 under § 6(d) of the Act for qualifying land. H.B. 2534 clearly frustrates this purpose, and 10 the conflict “is strong enough to overcome the presumption.” Hillsborough County v. 11 Automated Medical Labs., Inc., 471 U.S. 707, 716 (1985); see also Crosby, 530 U.S. at 12 374 n.8 (state law presents a “sufficient obstacle” to overcome presumption). The Court 13 will enter summary judgment in favor of the Nation on count one.8 14 III. Due Process (Counts Two and Five). 15 The Nation claims that application of H.B. 2534 to the Nation’s land would violate 16 the Due Process Clauses of the United States and Arizona Constitutions. Doc. 1 ¶¶ 49- 17 53, 62-64. “The federal and state due process clauses contain nearly identical language 18 and protect the same interests.” State v. Casey, 71 P.3d 351, 354 (Ariz. 2003). Each 19 clause “‘includes a substantive component which guards against arbitrary and capricious 20 government action, even when the decision to take that action is made through 21 procedures that are in themselves constitutionally adequate.’” 22 County, 42 F.3d 1257, 1261 (9th Cir. 1994). The Nation asserts violations of substantive Halvorson v. Skagit 23 24 25 26 27 28 8 In deciding whether the “clear and manifest purpose” of Congress is sufficient to overcome the presumption, the Court need not find a clear and manifest purpose to preempt. Indeed, divining Congress’ preemption intention would rarely be possible in a conflict preemption case. The clear and manifest purpose must be a statutory purpose with which the state law conflicts. As the Supreme Court made clear in Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), the “clear and manifest purpose of Congress” necessary to overcome the presumption is present where state law “may produce a result inconsistent with the objective of the federal statute.” 331 U.S. at 23; see City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633 (1973) (same). - 19 - 1 due process, not procedural due process. See Doc. 30 at 21 n.11. 2 Where the challenged government action does not impinge on a fundamental right, 3 such as matters relating to marriage, family, and procreation, the government action is 4 reviewed for a “rational basis.” Halvorson, 42 F.3d at 1262. Under this review, “a 5 statute will pass constitutional muster if it is ‘rationally related to a legitimate state 6 interest.’” Merrifield v. Lockyer, 547 F.3d 978, 984 n.9 (9th Cir. 2008) (quoting City of 7 New Orleans v. Duke, 427 U.S. 297, 303 (1976)); see Gadda v. State Bar of Cal., 511 8 F.3d 933, 938 (9th Cir. 2007). 9 H.B. 2534 passes the rational basis test. “Arizona has a legitimate state interest 10 not only in regulating the formation of new municipalities, but also in protecting the 11 interests of already existing municipalities.” Green v. City of Tucson, 340 F.3d 891, 903 12 (9th Cir. 2003). This interest includes avoiding the complications that can arise when 13 Indian reservations or federal enclaves are created on the fringes of existing cities and 14 towns. Such developments “can lead to intergovernmental conflict over resources and 15 economic development.” 16 intergovernmental conflicts by increasing the ability of cities and towns to annex 17 neighboring areas which may be transferred to the federal government. Id. The Court 18 cannot conclude that H.B. 2534 is “irrational and arbitrary.” Dodd, 59 F.3d at 864.9 Id. Arizona has “rationally chosen” to prevent such 19 The Nation contends that frustrating the exercise of a federal right – the statute’s 20 purpose in this case – can never be a legitimate state objective. Doc. 23 at 28. But in 21 support of this argument the Nation cites preemption cases, not due process cases. See 22 Crosby, 530 U.S. 363; Rollins Evnt’l Servs. (FS), Inc. v. St. James Parish, 775 F.2d 627 23 (5th Cir. 1985). Indeed, the question in Rollins was “not so much whether the challenged 24 [law] is rationally related to legitimate objectives, but whether it trenches impermissibly 25 26 27 28 9 The Nation’s reliance on Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), is misplaced. The challenged statute in Apfel created a “staggering financial burden” for events that occurred decades ago, presenting one of the “rare cases” where the legislature “has exceeded the limits imposed by due process.” 524 U.S. at 540, 549. - 20 - 1 upon a field preempted by Congress.” 775 F.2d at 635. 2 The Court finding that H.B. 2534 is preempted because it obstructs the objectives 3 of the Gila Bend Act does not also require a finding that H.B. 2534 violates the Nation’s 4 due process rights. The Nation has not met its burden of showing that H.B. 2534 is 5 clearly arbitrary and unreasonable, having no relation to any legitimate state interest. See 6 Dodd, 59 F.3d at 864. The Court therefore will grant summary judgment in favor of 7 Defendants on counts two and five.10 8 IV. Equal Protection (Counts Three and Six). 9 The Nation claims that application of H.B. 2534 to the Nation’s land would violate 10 the Equal Protection Clauses of the United States and Arizona Constitutions. Doc. 1 ¶¶ 11 54-56, 65-67. Because the Nation alleges no fundamental right that is infringed by 12 H.B. 2534, and because the statute’s classifications are not constitutionally suspect, 13 traditional rational basis review applies. See Taylor v. Rancho Santa Barbara, 206 F.3d 14 932, 934 (9th Cir. 2000). The classifications in H.B. 2534 therefore survive the Nation’s 15 equal protection challenge “if there is a rational relationship between the disparity of 16 treatment and some legitimate governmental purpose.” Id. at 934-35. Each classification 17 “must be upheld if there is any reasonably conceivable set of facts that could provide a 18 rational basis for the classification.” Id. at 935. Stated differently, as the party attacking 19 the rationality of the legislative classifications, the Nation “has the burden to negative 20 every conceivable basis which might support [them].” 21 Berkeley, 371 F.3d 1137, 1155 (9th Cir. 2004). The Nation has not met this burden. RUI One Corp. v. City of 22 The Nation claims that Defendants have presented no “conceivable legitimate 23 governmental objective to which H.B. 2534 can be said to be rationally related.” Doc. 30 24 at 27. To the contrary, protecting the ability of cities in populous counties to exercise 25 control over properties within their boundaries, and protecting the cities’ interests in not 26 27 28 10 The parties raise other due process issues concerning retroactivity and whether the Nation possesses a property interest protected by due process. Because H.B. 2534 clearly passes the rational basis test, the Court will not address these issues. - 21 - 1 having such lands transferred to other sovereigns, are legitimate state interests. See 2 Green, 340 F.3d at 903. The Nation conceded this point at the hearing. Doc. 35 at 17. 3 The Nation argues that H.B. 2534 fails the rational basis test because it is limited 4 to the State’s three largest counties and therefore does not include all of the cities and 5 towns that might have an interest in blocking federal acquisition of nearby land. The 6 Court does not agree, however, that complete inclusiveness is a requirement of the 7 rational basis test. 8 requirement, the Nation cited Eisenstadt v. Baird, 405 U.S. 438 (1972). Doc. 35 at 17, 9 35. Eisenstadt, however, addressed the irrationality of the law in question, noting that 10 there was simply no rational basis for outlawing distribution of contraceptives “to 11 unmarried but not to married persons.” 405 U.S. at 454. As Defendants explain in their 12 reply brief, however, each of H.B. 2534’s classifications is rationally related to legitimate 13 state interests. See Doc. 32 at 21-23. When asked during the hearing for authority to support this 14 Moreover, state legislatures are not required by the Equal Protection Clause to 15 solve all problems at once. They “‘must be allowed leeway to approach a perceived 16 problem incrementally.’” RUI One Corp., 371 F.3d at 1155 (quoting FCC v. Beach 17 Communications, Inc., 508 U.S. 307, 316 (1993)). The fact that the Arizona Legislature 18 limited H.B. 2534 to the most populous counties in Arizona does not mean that it fails the 19 rational basis test. As noted, it is rational to conclude that the most crowded counties 20 have the greatest need to control land use and annexation. H.B. 2534 survives the “very lenient” rational-basis inquiry. Id. The Court will 21 22 grant summary judgment for Defendants on counts three and six. 23 V. Special Legislation (Count Four). 24 The Arizona Constitution provides that “[n]o local or special laws shall be 25 enacted . . . [w]hen a general law can be made applicable.” Ariz. Const. art. IV, pt. 2 26 § 19(20). “A ‘special law’ confers rights and privileges on particular members of a class 27 or to an arbitrarily drawn class that is not rationally related to a legitimate governmental 28 - 22 - 1 purpose, while a ‘general law’ applies to all persons of a reasonably defined class.” Long 2 v. Napolitano, 53 P.3d 172, 178 (Ariz. Ct. App. 2002). Legislation such as H.R. 2534 3 that applies only in certain locations is valid where “(1) there is a rational basis for the 4 classification; (2) the classification is legitimate, encompassing all members of the 5 relevant class; and (3) the class is flexible, allowing members to move into and out of the 6 class.” State Comp. Fund v. Symington, 848 P. 2d 273, 278 (Ariz. 1993). 7 The Nation must establish “beyond a reasonable doubt” that H.B. 2534 constitutes 8 special legislation. Long, 53 P.3d at 179. Arizona courts hold “a strong presumption” 9 that statutes are constitutional, and “construe a statue so as to give it, if possible, a 10 reasonable and constitutional meaning.” Id. 11 A. Rational Basis. 12 “The special law ban does not prohibit the legislature from enacting laws that 13 confer privileges only on a population-based class, as long as the classification is a 14 rational one.” Id. The parties agree that the rational-basis analysis under this prong 15 mirrors the analysis for the equal protection claim. Docs. 23 at 28, 28 at 26. As 16 explained above, H.B. 2534 satisfies the rational basis test. 17 B. Legitimacy. 18 The second criterion asks whether the legislation applies equally to all in a similar 19 situation who come within its scope. City of Tucson v. Woods, 959 P.2d 394, 401 (Ariz. 20 Ct. App. 1997). The legislation “need not operate on every person, place or thing within 21 the state; however, it must apply uniformly to all cases and to all members within the 22 circumstances provided for by the law.” Republic Inv. Fund I v. Town of Surprise, 800 23 P.2d 1251, 1258 (1990). There must be a “rational reason” why the scope of the statute is 24 limited. Town of Gilbert v. Maricopa County, 141 P.3d 416, 421 (Ariz. Ct. App. 2006). 25 The Nation argues that H.B. 2534 does not encompass all members of the relevant 26 class because it is limited to counties with populations in excess of 350,000, and cities in 27 such larger counties have no greater interest in the speedy annexation of nearby land than 28 - 23 - 1 cities in smaller counties. The Court does not agree. Land use and control issues clearly 2 are more pressing in more populated areas, and counties with larger populations have 3 more cities in need of speedy mechanisms to control development. H.B. 2534 provides 4 these more crowded counties with a means for confronting urban development issues. 5 Because the Court finds this to be a rational reason for the classification, H.B. 2534 6 satisfies the second prong of the special legislation test. 7 C. Flexibility. 8 The final prong asks whether the classification is sufficiently flexible to allow 9 members to move in and out of the class. “A classification limited to a population as of a 10 particular census or date is a typical form of defective closed class . . . because it is 11 impossible for entities to enter or exit the class with changes in population.” Id. at 1259. 12 H.B. 2534’s classification is not tied to a particular date or census. It includes any county 13 that reaches a population of 350,000, with no limit on when that may occur. The 14 question, therefore, is “whether there is an actual probability that the legislation will 15 eventually apply to other [counties].” Town of Gilbert, 141 P.3d at 422. 16 The Nation argues that the legislation is not flexible because, according to the 17 most recent census trends, no other counties will qualify under H.B. 2534 for thirty years. 18 Arizona case law suggests, however, that a classification is not inflexible simply because 19 it will take time for other members to enter or exit the class. See Town of Gilbert, 141 20 P.3d at 422 (“The question becomes whether there is an actual probability that the 21 legislation will eventually apply to other county islands.” (emphasis added)); Long, 53 22 P.3d at 183 (upholding a statute with a population-based classification requiring more 23 than two million people even though the statute at the time applied only to one county); 24 Republic Inv. Fund I, 800 P.2d at 1258 (statute “‘must be such that other municipalities 25 may, upon the attainment of the conditions characterizing any particular class, enter that 26 class, and the conditions themselves must be not only possible, but reasonably probable, 27 of attainment.’” (quoting Petitioners for Deannexation v. City of Goodyear, 773 P.2d 28 - 24 - 1 1026, 1030 (Ariz. Ct. App. 1989)). Given the historical growth of Arizona and the 2 Southwest, the Court concludes that there is an actual probability that other counties will 3 reach the population threshold of the statute, not merely a theoretical possibility. 4 The Nation argues that no other county will ever qualify for the benefits of H.B. 5 2534 because the Gila Bend Act permits the Nation to acquire land only in the three most 6 populous counties in the State and no other federal law will permit such acquisitions in 7 other counties. As the Nation’s counsel conceded at oral argument, however, Indian 8 tribes in smaller counties could request that land be taken into trust under the 9 discretionary trust-acquisition statute. 25 U.S.C. § 465. Because those counties can 10 come within the provisions of H.B. 2534 as they grow in population, the classifications in 11 the bill are not inflexible. 12 The Nation has not shown beyond a reasonable doubt that H.B. 2534 constitutes 13 special legislation. The Court therefore will grant summary judgment in favor of 14 Defendants on count four. 15 IT IS ORDERED: 16 1. The motions for summary judgment (Docs. 23, 28) are granted in part and 17 denied in part. Summary judgment is granted in favor of Plaintiff on the preemption 18 claim asserted in count one, and in favor of Defendants on counts two through six. 19 20 2. The Court declares that H.B. 2534, as applied in this case, is preempted by the Gila Bend Act, Pub. L. No. 99-503, 100 Stat. 1798 (Oct. 20, 1986). 21 3. The Clerk is directed to enter judgment accordingly. 22 Dated this 30th day of June, 2011. 23 24 25 26 27 28 - 25 -

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