Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. Salazar et al

Filing 57

ORDER signed by Judge John A. Mendez on 1/30/2013 ORDERING 18 Motions for TRO is DENIED; Defendants and Enterprise are ORDERED to provide 30 days notice to the Court prior to commencing any activity at the Proposed Site; Citizens Plaintiffs' Motion of Writ of Mandamus is DENIED; Plaintiffs' 8 Motions for Preliminary Injunction will be heard 3/20/2013 at 9:30 a.m. in Courtroom 6 (JAM) before Judge John A. Mendez; Plaintiffs' supplemental briefing must be filed by 2/15/2013; De fendants may respond by 3/1/2013; and Plaintiffs may reply by 3/8/2013; parties are ORDERED to meet and confer regarding Enterprise's pending 13 Motion to Intervene and file a joint status report addressing that motion on or before 2/8/2013. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CACHIL DEHE BAND OF WINTUN
INDIANS OF THE COLUSA INDIAN
COMMUNITY, a federally
recognized Indian Tribe,
Plaintiff,

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v.
KENNETH SALAZAR, Secretary of
the Interior, et al.,

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Defendants.

No.

ORDER DENYING PLAINTIFFS’
MOTIONS FOR A TEMPORARY
RESTRAINING ORDER AND/OR WRIT OF
MANDAMUS; ORDER REQUIRING JOINT
STATUS REPORT ON MOTION TO
INTERVENE

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UNITED AUBURN INDIAN
COMMUNITY OF THE AUBURN
RANCHERIA

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Plaintiff,

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v.

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KENNETH SALAZAR, et al.,

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Defendants.

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CITIZENS FOR A BETTER WAY, et
al.,

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2:12-CV-3021-JAM-AC

Plaintiffs,
v.

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UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.,
Defendants.

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I.

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PROCEDURAL BACKGROUND

Before the Court are three Applications for Temporary

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Restraining Orders (“TROs”) and Preliminary Injunctions.

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first was filed by Plaintiff Cachil Dehe Band of Wintun Indians

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of the Colusa Indian Community (“Colusa”) (Case # 2:12-CV-3021-

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JAM-AC, Doc. ## 8, 18).1

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Auburn Indian Community of the Auburn Rancheria (“UAIC”) (Case #

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2:13-CV-64-JAM-AC, Doc. # 49).

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William F. Connelly, Stand Up for California!, Citizens for a

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Better Way, Robert Edwards, Grass Valley Neighbors, James M.

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Gallagher, Andy Vasquez, Roberto's Restaurant (collectively the

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“Citizen Plaintiffs”) (Case # 2:13-CV-64-JAM-AC, Doc. # 24).2

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The Citizen Plaintiffs also seek a writ of mandamus.

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application seeks to prohibit Defendants Kenneth Lee Salazar,

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Secretary, U.S. Department of the Interior; Kevin K. Washburn,

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Assistant Secretary - Indian Affairs, U.S. Department of the

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Interior; the Bureau of Indian Affairs; and the U.S. Department

The

The second was filed by the United

The third was filed by Dan Logue,

Each

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Case numbers 2:12-CV-3021-JAM-AC and 2:13-CV-64-JAM-AC were
consolidated into case number 2:12-CV-3021-JAM-AC on January 23,
2013. Pre-consolidation references to the 2:13-CV-64-JAM-AC
docket are included in this order for administrative convenience.
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The TRO applications were all submitted upon order of the Court
without oral argument. Local Rule 230(g). A hearing for the
preliminary injunctions and the motion to intervene is scheduled
for March 20, 2013.
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of the Interior (collectively “Defendants”) from accepting a

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parcel of land into trust for the Enterprise Rancheria of Maidu

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Indians of California (“Enterprise”).

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intervene as a defendant in this lawsuit (Case # 2:12-CV-3021

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Doc. # 13).

Enterprise also seeks to

Each TRO is fully briefed by the parties.

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II.

BACKGROUND

At the heart of this litigation are two decisions by
Defendants to take a parcel of land near Olivehurst, CA into

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trust for Enterprise (the “Proposed Site”) in order to construct

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a gaming facility.

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(“IGRA”), 25 U.S.C. § 2719(b)(1)(A), Defendants were required to

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proceed through a “two-step determination” before taking land

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into trust for Enterprise.

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required because the IGRA prohibits gaming on lands taken into

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trust after October 17, 1988 unless an exception applies.

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2718(b)(1)(A) exception permits such an acquisition if the

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Secretary of the Interior (the “Secretary”) consults with state,

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local, and nearby tribal officials and determines that the

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acquisition will be in the best interests of the tribe and not

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detrimental to the surrounding community.

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requires that the Governor of the state concur in the Secretary’s

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determination.

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Indian Affairs Echo Hawk signed a Record of Decision (“ROD”) that

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the § 2718(b)(1)(A) exception was met with respect to the

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Proposed Site.

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California Governor Brown, requesting his concurrence.

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Brown concurred by letter dated August 30, 2012 and Defendant

Pursuant to the Indian Gaming Regulatory Act

The two-step determination was

The §

Section 2718(b)(1)(A)

On September 1, 2011, Assistant Secretary of

Simultaneously, AS-IA Echo Hawk sent a letter to

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Governor

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Washburn signed another ROD on November 21, 2012 and published it

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in the Federal Register on December 3, 2012 announcing

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Defendants’ decision to acquire the Proposed Site in trust for

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Enterprise.

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in the original notice contained an error, a revised notice was

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published on January 2, 2013.

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Because the legal description of the Proposed Site

Plaintiffs collectively oppose the acquisition of the

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Proposed Site based on alleged violations of administrative

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statutes governing such agency decisions.

Plaintiffs’ complaints

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include causes of action pursuant to the Indian Gaming Regulatory

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Act, the National Environmental Policy Act, the Indian

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Reorganization Act of 1934, the Clean Air Act, and the

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Administrative Procedure Act.

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motions, Plaintiffs seek to preserve their challenges by

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enjoining Defendants’ transfer of the Proposed Site into trust so

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that the merits of their challenges can be considered.

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Plaintiffs argue that the threat that their suit will be barred

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by the federal government’s sovereign immunity once the Proposed

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Site is transferred into trust necessitates injunctive relief.

With respect to the present

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Pursuant to 25 C.F.R. Part 151.12(b), the Proposed Site

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could not be taken into trust for at least another 30 days after

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December 3, 2012.

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the Quiet Title Act (“QTA”), 29 U.S.C. § 2409a, barred suits such

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as those brought by Plaintiffs in this case once land was

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transferred into trust and Defendants accordingly stayed

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transferring land into trust until legal challenges were

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resolved.

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this case into trust until February 1, 2013, but declined to stay

In the past, Defendants took the position that

Defendants agreed to delay taking the Proposed Site in

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the acquisition any longer despite the ongoing litigation.

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Defendants took the position that a 2012 Supreme Court case,

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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

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made it clear that the QTA does not bar lawsuits like Plaintiffs’

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and there was therefore no reason to delay the transfer because

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the transfer would not divest this Court of jurisdiction to

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review Defendants’ actions and strip title from the government if

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appropriate.

123 S. Ct. 2199 (2012).

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Plaintiffs are collectively wary of Defendants’ analysis of

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the Patchak case, and they dispute the dispositive nature of its

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holding.

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Preliminary Injunctions in order to halt the transfer of the

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parcel into trust.

They therefore filed their motions for TROs and

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III. OPINION
A. Temporary Restraining Order
1.

Legal Standard

Fed. R. Civ. P. 65 provides authority to issue either

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preliminary injunctions or temporary restraining orders.

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plaintiff seeking a preliminary injunction must demonstrate that

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he is “[1] likely to succeed on the merits, [2] that he is likely

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to suffer irreparable harm in the absence of preliminary relief,

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[3] that the balance of equities tips in his favor, and [4] that

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an injunction is in the public interest.”

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City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting

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Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374 (2008)).

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The requirements for a temporary restraining order are the same.

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Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832,

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839 n. 7 (9th Cir. 2001).

Am. Trucking Ass’ns v.

A TRO is an emergency measure,
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intended to preserve the status quo pending a fuller hearing on

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the injunctive relief requested, and the irreparable harm must

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therefore be clearly immediate.

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2.

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Discussion
a) Irreparable Harm of Transferring Proposed

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Fed. R. Civ. Proc. 65(b)(1).

Site Into Trust
The primary focus of Plaintiffs’ collective TROs is their

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allegations of irreparable harm.

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transfer of the Proposed Site must be enjoined pending a hearing

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on their preliminary injunction motions because once the transfer

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occurs, this Court may well be without jurisdiction to remove the

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parcel from trust.

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position.

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mere transfer of the Proposed Site into trust will not divest

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this Court of jurisdiction.

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Plaintiffs contend that the

Defendants vigorously contest Plaintiffs’

Defendants argue that Patchak makes it clear that the

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.

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Patchak involved the 2005 determination of the Secretary of the

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Interior to take land into trust for an Indian tribe in Michigan.

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132 S. Ct. at 2203.

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suit challenging the acquisition of the parcel as violating the

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Indian Reorganization Act of 1934 and the APA.

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contended that the tribe was not federally recognized in 1934,

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and the Secretary was therefore prohibited from taking the land

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into trust.

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acquisition was unlawful and an injunction preventing the

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Secretary from taking title, but he did not assert an interest in

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the land itself.

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his suit, the Secretary transferred the parcel into trust,

Id.

The plaintiff in that case, Patchack, filed

Id.

Patchak

Patchak sought a declaration that the

Id. at 2203-04.

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Shortly after Patchak filed

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converting Patchak’s suit into one that sought to divest the

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government of its title, and the District Court dismissed

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Patchak’s suit upon finding that he lacked prudential standing.

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The District Court rejected the Secretary’s argument that

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sovereign immunity derived from the QTA barred the suit,

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contradicting three Circuits’ decisions on that issue.

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2204.

Id. at

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Patchak’s suit was brought pursuant to the APA, which waives

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federal sovereign immunity from a suit “seeking relief other than

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money damages and stating a claim that an agency or an officer or

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employee thereof acted or failed to act in an official capacity

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or under color of legal authority.”

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702).

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“statute that grants consent to suit expressly or impliedly

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forbids the relief which is sought.”

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contended in Patchak that the QTA overrides the APA’s waiver

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because the QTA authorizes a suit so long as it “does not apply

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to trust or restricted Indian lands,” blocking through its

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express language the APA’s waiver of sovereign immunity for suits

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seeking to strip the government’s title to Indian lands.

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(quoting 28 U.S.C. 2409a(a)).

Id. (quoting 5 U.S.C. §

The APA’s waiver, however, does not override another

Id.

The Secretary

Id.

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The Supreme Court considered the interplay between the QTA

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and the APA and determined that the QTA only blocks suit when a

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claimant prosecutes a quiet title action.

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title action for QTA purposes has two key components: 1) it must

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contest the government’s title, and 2) the claimant must assert

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some competing interest in the property.

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lacks either component, then the QTA’s limitation on sovereign
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Id. at 2210.

Id. at 2206.

A quiet

If a suit

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immunity does not apply.

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quiet title action, the Supreme Court held that Patchak’s suit

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was not barred because the federal government had waived

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sovereign immunity in the APA.

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seek title to the land or otherwise claim an interest in it, and

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he was therefore not prosecuting a quiet title action.

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2207-08.

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seek to divest the federal government of its title to the land,

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it was not barred by the QTA’s Indian lands exception.

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Id.

Applying this definition of a

Id. at 2207.

Patchak did not

Id. at

Even though all parties agreed that Patchak’s suit did

Id. at

2208.
Patchak is indistinguishable from the present case because

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no Plaintiff claims an interest in the Proposed Site, meaning

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that this is not a quiet title action and the QTA’s limitation on

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suits related to Indian lands does not apply. Patchak squarely

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addressed the supposedly irreparable harm that Plaintiffs

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complain of and indicated that federal district courts do have

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the power to strip the federal government of title to land taken

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into trust for an Indian tribe under the APA so long as the

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claimant does not assert an interest in the land.

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Plaintiffs only seek to divest the government of its title.

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do not assert an interest in the Proposed Site.

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therefore not shown that the mere act of transferring the

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Proposed Site into trust on February 1, 2013 constitutes

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irreparable harm, and a TRO is therefore inappropriate.

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In this case,
They

Plaintiffs have

b) Irreparable Harm of Construction on Proposed
Site
Plaintiffs also argue that once the Proposed Site is
transferred into trust, construction and/or gaming can begin
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which will cause irreparable harm relevant to their NEPA and IGRA

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claims.

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Nelson, who testifies that she is the Chair of Enterprise.

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Nelson indicates that no construction will take place on the

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Proposed Site for at least 120 days after February 1, 2013.

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Additionally, Ms. Nelson testifies that Enterprise has agreed to

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provide 30 days notice to this Court prior to any construction at

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the Proposed Site.

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Defendants rely on a declaration submitted by Glenda
Ms.

Colusa objects to the admission of Ms. Nelson’s testimony

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based on the relevance of her entire declaration and the

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admissibility of several specific statements for various reasons

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(Case. # 2:12-CV-3021-JAM-AC, Doc. # 37).

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position is that Ms. Nelson’s declaration does little to

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guarantee that construction and/or gaming will not commence at

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the proposed site prior to the March 20, 2013 hearing date.

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While Colusa’s concerns might support a finding of

Colusa’s basic

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irreparable harm if construction and gaming were to occur without

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any notice, Enterprise and Defendants both represent that 30 days

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notice will be given before any activity commences at the

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Proposed Site.

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ordered to provide such notice to this Court at least 30 days

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prior to commencing any activity on the Proposed Site.

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notice will be sufficient for the Court to revisit the harm

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caused by activity at the site without issuing a TRO.

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Accordingly, Plaintiffs are unable to show immediate irreparable

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harm from construction and/or gaming at the Proposed Site, making

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a TRO inappropriate.

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cautioned that any activity at the Proposed Site prior to the

Given this promise, they are further explicitly

This

Defendants and Enterprise are also

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scheduled March 20, 2013 hearing will not necessarily sway any

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future equitable analysis in their favor, and they therefore

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proceed with such activity at their own peril.

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relied on Defendants and Enterprise’s representations in

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determining that irreparable harm is not imminent, but the Court

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has not reached the merits of Plaintiffs’ claims.

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that Plaintiffs’ claims are found to be meritorious, any further

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investment in the Proposed Site may be wasted if the Court strips

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the government’s title from the Proposed Site.

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The Court has

In the event

B. Writ of Mandamus

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The Citizen Plaintiffs also seek a writ of mandamus

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compelling Defendants to comply with 25 C.F.R. § 151.12(b) by

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staying any transfer of the Proposed Site into trust pending the

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outcome of this litigation.

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on the same grounds that they oppose issuance of a TRO.

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Defendants oppose a writ of mandamus

“For mandamus relief, three elements must be satisfied: ‘(1)

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the plaintiff’s claim is clear and certain; (2) the [defendant

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official’s] duty is ministerial and so plainly prescribed as to

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be free from doubt; and (3) no other adequate remedy is

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available.’”

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2003) (quoting R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061,

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1065 n. 5 (9th Cir.1997)).

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Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir.

The Citizens Plaintiffs’ motion for a writ fails because

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they are unable to show that no other adequate remedy is

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available.

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to the TRO, a writ is unnecessary at this point because the

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Citizen Plaintiffs can still proceed with their Preliminary

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Injunction Motion on March 20, 2013.

In this case, for the reasons discussed with respect

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Additionally, the motion

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for a writ is based on 25 C.F.R. § 151.12(b), but that section

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only requires a 30 day stay prior to transferring property into

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trust.

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requirement in this case.

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on State of S.D. v. U.S. Dep't of Interior, 69 F.3d 878 (8th Cir.

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1995), which held that judicial review must be available prior to

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land being taken into trust.

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by Patchak, however, because Patchak established that judicial

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review of such decisions can occur after property is taken into

It is undisputed that Defendants complied with that

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trust.

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Finally, the Citizen Plaintiffs rely

That case is called into question

accordingly denied.

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The Citizen Plaintiffs’ motion for a writ of mandamus is

C. March 20, 2013 Hearing

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Plaintiffs’ motions for preliminary injunction and

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Enterprise’s motion to intervene remain calendared for March 20,

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2013.

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supplemental briefs in support of their motions not to exceed 15

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pages by February 15, 2013, or they may alternatively file one

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consolidated brief not to exceed 25 pages by the same date.

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Defendants are given leave to file a consolidated opposition to

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Plaintiffs’ supplemental briefing not to exceed 25 pages by March

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1, 2013.

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exceed 10 pages or one consolidated reply brief not to exceed 15

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pages by March 8, 2013.

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caution to not repeat arguments already briefed and presented to

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this Court.

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In light of this order, Plaintiffs are given leave to file

Plaintiffs may file individual reply briefs not to

All parties are to exercise extreme

As to the Motion to Intervene, Plaintiffs are ordered to

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meet and confer with Enterprise before filing any oppositions to

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this motion.

This Motion to Intervene appears, on its face, to
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be meritorious and the Court will not look favorably upon any

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opposition that is filed simply to create additional and

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unnecessary work for the Court and Proposed Intervenors.

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Accordingly the Court orders the parties to file a joint status

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report on or before February 8, 2013.

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the Court as to whether any opposition to the Motion to Intervene

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will be filed and the general grounds upon which the opposition

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will be based.

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Intervene, the parties should submit a stipulation to the Court

The parties should inform

If there is no opposition to the Motion to

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granting this motion.

The parties are hereby notified that even

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if the Court grants the Motion to Intervene, it is considering

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placing a number of limitations and/or conditions on Enterprise

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including, but not limited to, prohibiting Enterprise from filing

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separate briefs in connection with substantive motions in this

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case.

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IV.
Plaintiffs’

Motions

for

ORDER

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1.

Temporary

Restraining

Orders

are

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DENIED.

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2.

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notice to the Court prior to commencing any activity at the

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Proposed Site.

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3.

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DENIED.

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4.

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on March 20, 2013 at 9:30 AM in Courtroom No. 6 of this Court.

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Plaintiffs’ supplemental briefing must be filed by February 15,

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2013, Defendants may respond by March 1, 2013, and Plaintiffs may

Defendants and Enterprise are ordered to provide 30 days

The

Citizens

Plaintiffs’

Motion

for

Writ

of

Mandamus

is

Plaintiffs’ Motions for Preliminary Injunction will be heard

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reply by March 8, 2013.

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5.

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Enterprise’s pending Motion to Intervene and file a joint status

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report addressing that motion on or before February 8, 2013.

The

parties

are

ordered

to

meet

and

confer

regarding

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IT IS SO ORDERED.

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Dated: January 30, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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