Wyandotte Nation v. Salazar

Filing 83

MEMORANDUM AND ORDER denying 60 Motion for Summary Judgment; granting in part and denying in part 66 Motion for Summary Judgment; granting in part and denying in part 69 Motion for Summary Judgment. (See Order for details.) Signed by District Judge Julie A. Robinson on 4/10/2013. (bt)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WYANDOTTE NATION,

)
)
Plaintiff,
)
)
v.
)
)
KENNETH L. SALAZAR, in his official )
capacity as Secretary of the United States )
Department of the Interior,
)
)
Defendant,
)
)
and
)
)
STATE OF KANSAS, ex rel.
)
DEREK SCHMIDT, Attorney General, )
)
Intervening Defendant.
)
__________________________________ )

Case No. 11-2656-JAR-DJW

MEMORANDUM AND ORDER
Plaintiff Wyandotte Nation, a federally recognized Indian tribe (“the Nation”), filed this
lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (“the
Secretary”), seeking an order from this Court compelling the Secretary to accept title to certain
land and hold it in trust for the Nation’s benefit, as specifically required by Public Law 98-602,
98 Stat. 3149 (1984) (“P.L. 98-602”), under both the Administrative Procedure Act (“APA”), 5
U.S.C. § 706(a) and the Mandamus Act, 28 U.S.C. § 1361. The State of Kansas (“the State”)
was permitted to intervene as of right under Fed. R. Civ. P. 24(a).1 This matter is before the
Court on the Nation’s Motion for Summary Judgment (Doc. 60) and the Secretary and State’s
cross-motions for summary judgment (Docs. 66, 69). The Court heard oral arguments on March
1

Doc. 41. The State’s counterclaims and cross-claims were previously dismissed. Doc. 56.

14, 2013, at which time the Secretary was directed to supplement the Administrative Record and
the matter was taken under advisement. For the reasons explained in detail below, the Court
denies the Nation’s motion and grants in part and denies in part the Secretary and the State’s
cross- motions, retaining jurisdiction over the case until the agency issues a final decision on the
Nation’s pending land-into-trust application.
I.

Statutory and Regulatory Background
A.

Land-Into-Trust Statutes Generally

If authorized by an act of Congress, the Secretary of the Interior may hold title to land in
trust for the benefit of an Indian tribe.2 Generally, such trust acquisition statutes fall into one of
two categories. “Discretionary” acquisitions are those for which Congress has delegated to the
Secretary the determination of whether the acquisition is appropriate under the circumstances.3
The most common discretionary acquisition statute is the Indian Reorganization Act of 1934.4
Department of the Interior regulations set forth factors the Secretary is to consider in exercising
his discretionary authority to acquire land in trust.5 In contrast, “mandatory acquisitions” are
those for which Congress has directed the acquisition of land into trust, often identifying a
specific parcel or certain eligibility requirements for the land.6
When the acquisition statute is “mandatory,” most of the regulatory factors applicable to

2

See 25 C.F.R. §§ 151.3, 151.9.

3

Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1261 (10th Cir. 2001).

4

See 25 U.S.C. § 465.

5

See 25 C.F.R. § 151.10 (on-reservation acquisitions); § 151.11 (off-reservation acquisitions).

6

See Sac & Fox Nation, 240 F.3d at 1261.

2

discretionary acquisitions do not apply.7 For example, the notice and comment provisions
requiring that the Department notify state and local governments of the fee-to-trust application
are not applicable,8 and compliance with the National Environmental Policy Act9 is not required.
Although not required to consider the factors listed in Department regulations, the Secretary still
interprets the regulations as requiring public notice of a decision to acquire land in trust,10 and
internal Department guidelines require the Secretary to conduct a contaminant survey on the
lands. While the Department of Interior’s Assistant Secretary for Indian Affairs has generally
delegated decision-making authority for fee-to-trust applications to the Department’s regional
offices, the Assistant Secretary has not delegated that authority with respect to applications that
seek to have the United States accept land in trust for gaming purposes.11
B.

Public Law 98-602

Congress passed Public Law 98-602 in 1984.12 The acquisition statute is mandatory, and
provid[ed] for the appropriation and distribution of money in
satisfaction of judgments awarded to the Wyandottes by the Indian
Claims Commission and the Court of Claims. The judgments were
compensation for lands in Ohio that the Wyandottes had ceded to
the United States in the 1800s. Under the 1984 law, Congress
directed that 20% of the allocated funds be used and distributed in
accordance with a series of directives. Key among those directives
. . . was one providing that a sum of $100,000 of such funds shall
be used for the purchase of real property which shall be held in
7

See 25 C.F.R. §§ 151.10, 151.11.

8

25 C.F.R. §§ 151.10, 151.11(d).

9

42 U.S.C. § 4332.

10

25 C.F.R. § 151.12(b).

11

See AR000555.

12

See 98 Stat. 3149 (1984).

3

trust by the Secretary for the benefit of such Tribe.13
The statute states, in relevant part,
(b) Twenty percent of the funds allocated to the Wyandotte Tribe
of Oklahoma pursuant to section 103(b) shall be used and
distributed in accordance with the following general plan:
(1) A sum of $100,000 of such funds shall be used
for the purchase of real property which shall be
held in trust by the Secretary for the benefit of
such Tribe. . . . 14
II.

Undisputed Material Facts
Because the Nation’s suit involves claims under the APA, “[t]he task of the reviewing

court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision
based on the record the agency presents to the reviewing court.”15 “As all material facts are
within the administrative record, no material issues of fact are in dispute.”16 The record review
principle applies with equal force to claims of undue delay brought under 5 U.S.C. § 706(1), as in
this case.17 Because the Secretary has yet to make a final decision on the Nation’s application,
the parties have filed motions for summary judgment to address the merits. Judicial review of
the Nation’s Complaint, however, is still limited to the agency record lodged by the Secretary.18
Accordingly, the Court does not consider the two extra-record affidavits attached to the Nation’s

13

Sac & Fox Nation, 240 F.3d at 1255 (footnote and internal quotations omitted).

14

Pub. L. No. 98-602, § 105, 98 Stat. at 3151.

15

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985).

16

LeBoeuf, Lamb, Greene & MacRae, LLP v. Abraham, 215 F. Supp. 2d 73, 84 n.5 (D.D.C. 2002).

17

See Sierra Club v. U.S. Dept. of Energy, 26 F. Supp. 2d 1268, 1272 (D. Colo. 1998).

18

Id. at 1272.

4

motion for summary judgment, as they are not included in the Administrative Record lodged by
the Secretary.19
In November 1992, the Nation purchased approximately 10.5 acres of land near Park
City, Kansas (“Park City Land”) with $25,000 withdrawn from its main investment account.20
Park City is located north of Wichita along U.S. Interstate Highway 135.21
On January 21, 1993, the Nation submitted an application requesting the Department of
the Interior (the “Department”) take the Park City Land into trust for the nation pursuant to
Public Law 98-602.22 On February 19, 1993, the Tulsa Field Solicitor’s office sent a
memorandum to the Director of the Muskogee Area Office stating that Public Law 98-602 did
not impose a mandatory duty on the Secretary to take the Park City Land into trust and that the
monies awarded to the Nation under Public Law 98-602 were not in settlement of a land claim.23
The memorandum notes that, at the time, the Nation had agreed to pursue the application under
the Secretary’s discretionary authority, making the question relating to Public Law 98-602
“moot.”24

19

Doc. 61, Exs. 1, 2. See Sierra Club, 26 F. Supp. 2d at 1272; Citizens for Alts. to Radioactive Dumping v.
U.S. Dep’t Energy, 485 F.3d 1091, 1096 (10th Cir. 2007) (discussing exceptions to record review principle). The
Secretary also objected to consideration of the three exhibits submitted by the State in support of its cross-motion for
summary judgment. Doc. 68, Exs. A-C. Those exhibits are now part of the Administrative Record, as supplemented
on March 25, 2013. See AR004058-4171.
20

AR001581-82. The Park City Land is also referred to as the “Coliseum Center Property” in certain parts
of the Administrative Record. See, e.g., AR001173.
21

AR000792.

22

AR0088-172.

23

AR000991-1002.

24

AR000992.

5

In December 1995, due to the Solicitor’s opinion, the Nation withdrew its request to have
the Park City Land taken into trust, electing instead to have property in Kansas City, Kansas (the
“Shriner Tract”) taken into trust under the mandatory provisions of Public Law 98-602.25 As
discussed further below, the Department ultimately accepted in trust for the Nation the Shriner
Tract.26 That decision and the Nation’s planned use for the land were subject to more than a
decade of litigation in this Court and in the United States Court of Appeals for the Tenth
Circuit.27
On April 13, 2006, the Nation filed an application with the Bureau of Indian Affairs
Eastern Oklahoma Region to accept the Park City Land in trust for the benefit of the Wyandotte
Nation.28 The Nation intends to use the Park City Land to operate a casino.29 In its 2006
application, the Nation requested that the Park City Land be accepted in trust under discretionary
authority granted to the Secretary of the Interior by the Indian Reorganization Act., 25 U.S.C.
§ 465.30
In May 2008, the Nation wrote the Department’s Regional Director and took the position
that the Park City Land was purchased with Public Law 98-602 funds, and argued that the
Department could accept the Park City Land in trust under the authority of Public Law 98-602.31

25

AR002252; AR002291-2295.

26

AR001774.

27

AR001772-76. See Doc. 6-1 for a summary of the litigation surrounding the Shriner Tract.

28

AR001179-80.

29

AR001182-83; AR000082-86.

30

AR001179; AR001182-83.

31

AR001369-74.

6

The Nation explained that, while it did not agree with the 1993 Solicitor’s opinion, it
“determined that its best legal course to take in vindicating its rights granted under Pub. L. 98602 would be available on land in Kansas City, Kansas.”32 The Nation explained that because it
prevailed on legal disputes involving the Shriner Tract that indirectly resolved the Park City Land
purchase, it determined it was appropriate to re-apply for the placement of the land into trust
under Public Law 98-602.33

The Nation followed the May 2, 2008 letter with a “Supplement to

Application for the Secretary of the Interior/BIA Muskogee Region to take Land Located in Park
City, Kansas In Trust for the Wyandotte Nation and to Determine Such Trust Lands May Be
Used for Gaming Purposes.”34
On January 30, 2009, after completing its initial review of the Nation’s Park City Land
application, the Eastern Oklahoma Region forwarded the application and a regional
recommendation to the Department of the Interior’s Central Office in Washington, D.C.35
Specifically, the Muskogee Area Office transmitted the trust application to the Department with a
cover letter stating, “[t]he Region’s evaluation of the request and supporting documents reveals
that P.L. 98-602 authorizes the mandatory acquisition of the purported property for the Nation.
Based upon the above findings, the Region has determined that the acquisition should be
approved as a mandatory acquisition pursuant to P.L. 98-602.”36

32

AR001371.

33

Id.

34

AR000964-1026. The date of submission does not appear from the face of the document in the record.

35

AR001173-77.

36

AR000943-947 (emphasis in original).

7

Within a few months, Department staff in the Central Office had begun their review and
on June 23, 2009, identified two issues surrounding the question of whether the Nation had used
funds allocated to the Tribe in Public Law 98-602 to purchase the Park City Land.37 The first
issue involved a discrepancy in the date on which the Nation purchased the land and the source
of funds; the second involved a discrepancy in the purchase amount.38 Central Office staff met
with the Nation in July 2009 to discuss these issues, including why the $25,000 used for the
purchase of the land was apparently withdrawn more than one year prior to its purchase, and the
Nation submitted additional information on August 18, 2009.39 Based upon that information, the
Nation explained that the land had not been purchased with the $25,000 redeemed in November
1991, but rather had been purchased using $25,000 of Public Law 98-602 funds on November
24, 1992.40 As a result, Department staff believed the two issues had been resolved.41
Thereafter, Department staff worked to finalize a recommendation to agency decisionmakers on the application.42 The record contains numerous emails and memoranda between staff
documenting the deliberative process as it passed through the so-called chain of command on its
way to the official holding ultimate decision-making authority.43 By late October 2010, the
application was ready for final review and decision-making by the Assistant Secretary for Indian
37

AR001564.

38

Id.

39

AR001581-88.

40

Id. (emphasis added).

41

AR001605.

42

See, e.g., AR001620; AR001669; AR001705; AR001721; AR001769; AR001843.

43

See, e.g., Doc. 61 at 7-22.

8

Affairs, Larry Echo-Hawk.44
In the interim, former Kansas Senator Bob Dole wrote to the Secretary on August 24,
2010, requesting a meeting to discuss the pending Park City Land application on behalf of his
client, Peninsula Gaming,45 which operates the Kansas Star Casino in Mulvane, Kansas. Kansas
Attorney General Steve Six sent a September 13, 2010, letter to the Department identifying
several concerns the State had now that the Nation’s application was made under Public Law 98602, rather than the Indian Reorganization Act.46 The State presented what it viewed as several
statutory obstacles to acquiring the land under Public Law 98-602.47 The State explained that the
letter was to supplement its previous 2008 objection to the Park City Land fee-to-trust
application, which was premised on its understanding that the application was a discretionary
one.48 The State objected to the application under Public Law 98-602 on the grounds that the
record and prior legal proceedings indicate that the mandatory provisions of that law were fully
satisfied when the Nation purchased the Shriner Tract for significantly more than $100,000 and
the Secretary took that land into trust for the Nation’s benefit.49 Included with the letter was
additional analysis and supporting documentation from the administrative record and related
legal proceedings.50 The meeting arranged by Senator Dole was held September 16, 2010, with

44

AR002154-55; AR002164.

45

AR001872, 002582.

46

AR001960-2133.

47

AR001964-65.

48

AR001960-61.

49

Id.

50

AR001964-2132.

9

representatives from the Department, the State, the Kansas congressional delegation, Peninsula
Gaming and the Senator’s staff in attendance.51
Upon receipt of the State’s September 13 letter, the Department’s Central Office
undertook an initial review of the State’s concerns.52 After a meeting held October 29, 2010 with
the “Kansas folks” to discuss the issues, the Department decided on November 3, 2010, to assess
the States’ legal interpretations in more detail before making a final decision on the Nation’s
application.53
On November 15, 2010, Attorney General Steve Six sent a letter to the Secretary in
response to Solicitor Thomas’s request for further briefing and documentation from Peninsula
Gaming’s and Kansas interests.54 The State attached legal analysis and supporting exhibits
prepared by Mark Gunnison, attorney for Peninsula Gaming, which the State had reviewed and
with which it concurred.55 Highly summarized, the State took the position that when the Nation
purchased the Shriner Tract, it spent more than could realistically be attributed to Public Law 98602’s principal $100,000 set aside funds plus interest; regardless of when the Park City Land was
purchased, when the Shriner Tract was taken into trust the Nation knew and understood that the
mandate of Public Law 98-602 was satisfied at that time, and that any further acquisitions had to
be accomplished under some other authority.56
51

AR002582.

52

AR002142-43; AR002144.

53

AR002167; AR002168; AR002400.

54

AR002218-19.

55

AR002220-2385.

56

Id.

10

On December 14, 2010, the Department met with the Nation to discuss the State’s
concerns, and provided the Nation with the State’s November letter; although the State also
showed the Nation the two volumes of supporting documents submitted by the State, the Nation
was not provided copies at that time.57 As requested, the Nation then provided a written response
to the State’s letter on December 22, 2010.58 The Nation took the position that in reviewing the
State’s letter, it was clear that the supporting documents were the same documents the Kansas
opponents have circulated over the last fifteen years in “unsuccessful opposition to the
Wyandotte Nation presence in Kansas,” and the State’s “arguments should again be summarily
discarded.”59 Contrary to the State’s arguments, the Nation asserted that the Park City Land and
the Shriner Tract were purchased from the same Public Law 98-602 funds, as the additional
funds used to purchase the Shriner Tract included interest earned on the original $100,000.60
The Department then revisited its analysis of whether Public Law 98-602 could provide
the authority for the Park City Land fee-to-trust acquisition, again delaying the final decision.61
On March 3, 2011, Kansas Attorney General Derek Schmidt sent a letter to the Secretary to
express the State’s continued opposition to the Nation’s pending land-into-trust application in
Park City, for the reasons previously set forth by Attorney General Six in November 2010.62
Dissatisfied with the amount of time the Department was taking to review the application,
57

AR002419.

58

AR002418-24.

59

Id.

60

AR002420-2424.

61

AR002437; AR002502; AR002619; AR002650; AR002759.

62

AR002439-2459.

11

the Nation filed this suit on July 26, 2011, claiming the Secretary has unreasonably delayed an
allegedly mandatory duty to accept title and hold the Park City Land in trust for the Nation’s
benefit.63 The Nation asks the Court to direct the Secretary to “immediately accept trust title to
the Park City Land and hold it in trust for the benefit of the [Wyandotte].”64 The Secretary
declined Senator Dole’s request for another meeting.65
The Department completed its renewed legal analysis near the end of 2011, and the
application was again nearing decision in early 2012.66 On February 14, 2012, Department staff
briefed the Department of Interior Solicitor on their analyses and recommendation.67 On
February 16, 2012, the State sent another letter to the Department, pointing out what it viewed to
be an expenditure of Public Law 98-602 funds that it had just learned of after review of the
Administrative Record in this litigation.68 The letter stated that the Attorney General wished to
bring two documents to the Secretary’s attention: a December 22, 2010 letter from the Nations’
counsel David McCollough to David Moran, with the Office of the Solicitor; and McCollough’s
letter of August 18, 2009, to Candace Beck, with the Office of the Solicitor.69 Specifically, the
State notes that in August 2009, the Nation corrected more than a decade of alleged

63

Doc. 1.

64

Id.

65

AR002580.

66

AR002794; AR003384. The record indicates that a draft decision letter was being circulated; copies of
the drafts have been fully redacted.
67

AR003407, AR003678.

68

AR004022-25.

69

Id.

12

misinformation about the source of funds used to purchase the Park City Land.70 For many years,
the Nation had maintained that the land was bought with money withdrawn in November 1991
from a segregated account that housed only the mortgage investment bonds that the Nation
purchased with the $100,000 set aside by Public Law 98-602 for the purchase of land.71 In
August 2009, however, the Nation disclosed that the Park City Land was actually purchased in
November 1992, and that the cash used to buy the property came from cash withdrawn at that
time from a commingled general investment account.72 According to the State, that fact, if
accurate, would undermine previous efforts to account for expenditures of Public Law 98-602
funds. Because of this commingling, the cash used to purchase the Park City Land cannot be
traced to those funds, and as a result, determination of whether the money withdrawn in
November 1992 was Public Law 98-602 funds becomes a matter of attribution—if the $25,000
used to purchase the Park City Land is deducted from the calculation of the accrued interest and
earnings on the principal 98-602 funds starting in November 1992, there would not have been
enough money in July 2006 to account for the $180,000 attributed to the purchase of the Shriner
Tract.73 The Department forwarded the State’s letter to the Nation.74
In response to the State’s letter, the Department initiated yet a further review of the funds’
expenditures, which included consultation with the Department’s Office of Financial

70

Id.

71

Id.

72

Id.

73

Id.

74

AR004056.

13

Management.75 By letter dated March 29, 2012, the Department notified the Nation of receipt of
the State’s February 16 letter; that same date, the Department acknowledged receipt of the State’s
letter and stated it was “reviewing the issues raised in the letter and will consider them as part of
the Nation’s application.”76
On September 20, 2012, Mark Gunnison, who was appointed Special Assistant Attorney
General for the State in connection with this matter, sent the Secretary a letter following up on
Attorney General Schmidt’s February 16 letter. Gunnison included a report prepared by Jerry
Gottlieb, CPA, who was engaged by the State to review the account statements submitted by the
Nation to the Secretary in 2001.77 Gottleib concluded that the entirety of the $25,000 withdrawn
from the Nation’s investment account in November 1992 cannot be attributed to the Public Law
98-602 funds and still have $180,000 available in 98-602 funds in July 1996 with which to fund
the Shriner Tract purchase.78 In other words, there were not enough 98-602 funds to fund both
the $180,000 purchase of the Shriner Tract in July 1996, and also the purchase of the Park City
Land in November 1992.79 Accordingly, the State contends that Gottleib’s report provides an
independent basis upon which to reject the Nation’s application to have the Park City Land
placed in trust on a mandatory basis under P.L. 98-602, because the land cannot have been
purchased entirely with P.L. 98-602 funds given the history of the Shriner Tract acquisition.80 A
75

AR003890; AR003951; AR004008.

76

AR004057.

77

Id.

78

AR004070.

79

Id.

80

AR004061.

14

corrected report reaching the same conclusion was submitted by the State on October 24, 2012.81
The Assistant Secretary of the Interior met with representatives of the Nation to discuss
the Park City Land application in November 2012.82 Representatives of the State met with the
Assistant Secretary of Indian Affairs on March 20, 2013.83 The Secretary’s review of the
Nation’s application remains on-going.
III.

Standard of Review
The Nation seeks to compel agency action under both the APA, 5 U.S.C. § 706(1) and the

Mandamus Act, 28 U.S.C. § 1361. “The availability of a remedy under the APA technically
precludes [the Nation’s] alternative request for a writ of mandamus.”84 The available remedy
under both statutes, however, is essentially the same—a mandatory injunction.85
Judicial review under the APA is based upon “the whole record or those parts of it cited
by a party.”86 The United States Supreme Court has explained, “the focal point for judicial
review [under the APA] should be the administrative record already in existence, not some new
record made initially in the reviewing court.”87 Thus, even though judicial review rests with a

81

AR004110-4171 (correcting pagination and collating errors in September 2012 Gottleib report).

82

AR004230.

83

AR004174.

84

Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997) (citing W. Shoshone Bus.
Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir. 1993)).
85

Id.; see Norton v. S. Utah Wilderness Assoc. (“SUWA”), 542 U.S. 55, 63-64 (2004).

86

5 U.S.C. § 706.

87

Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam); accord Fla. Power & Light v. Lorion, 470 U.S.
729, 743-44 (1985).

15

district court, the district court does not act as a fact-finder.88 Instead, “[t]he task of the
reviewing court is to apply the appropriate APA standard of review . . . based on the record the
agency presents . . . .”89
The APA grants a reviewing court the authority to “compel agency action unlawfully
withheld . . .”90 But a court can only compel an agency “to perform a ministerial or nondiscretionary act” that the agency is legally required to take.91 Further, relief in the nature of
mandamus is an extraordinary remedy, appropriate in “only . . . the clearest and most compelling
cases.”92
The courts have achieved this limitation in part through a narrow
definition of the term “duty.” According to traditional doctrine, a
writ of mandamus will issue “only where the duty to be performed
is ministerial and the obligation to act peremptory, and clearly
defined. The law must not only authorize the demanded action, but
require it; the duty must be clear and undisputable.”93
The APA also requires that federal agencies conclude matters presented to them “within a
reasonable time.”94 Section 706(1) of the APA grants a reviewing court the authority to “compel

88

See Fla. Power & Light, 470 U.S. at 744; Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d
1443, 1450 (9th Cir. 1996).
89

Id. at 743-44 (citing Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971)).

90

5 U.S.C. § 706(1).

91

See SUWA, 542 U.S. at 64.

92

13th Reg’l Corp. v. U.S. Dept. of the Interior, 654 F.2d 758, 760 (D.C. Cir. 1980) (citation and quotations

omitted).
93

Id. (citations omitted).

94

5 U.S.C. § 555(b).

16

agency action . . . unreasonably delayed.”95 Where the form of action itself is not legally
mandated, a court may only order the agency to take action, without directing how the agency
will act.96 The issue of unreasonable delay “cannot be decided in the abstract, by reference to
some number of months or years beyond which agency inaction is presumed to be unlawful.”97
“The ultimate issue . . . [is] whether the time the [agency] is taking to act . . . satisfies the ‘rule of
reason.’”98
IV.

Discussion
The Nation’s Complaint presents three issues. First, whether the Secretary has a clear,

non-discretionary duty to accept the Park City Land in trust under Public Law 98-602. Second,
whether the Secretary’s failure to act in the face of this clear obligation amounts to an
unreasonable delay of agency action. And, finally, whether the Secretary has violated the
Department’s fiduciary obligations to the Nation.
A.

Duty to Act

Because the APA precludes the Nation’s alternative request for a writ of madamus, the
Court will analyze its request under § 706(1) of the APA, which “empowers a court only to
compel an agency ‘to perform a ministerial or non-discretionary act’ or ‘to take action upon a
matter, without directing how it shall act.’”99 In this case, the Nation’s Complaint seeks an order

95

5 U.S.C. § 706(1).

96

See SUWA, 542 U.S. at 63.

97

Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003).

98

Id.

99

SUWA, 542 U.S. at 64 (quoting Attorney General’s Manual on the Administrative Procedure Act 108
(1947)) (emphasis in the original).

17

compelling the Secretary to accept the land in trust under § 706(1) of the APA.100 In order to
obtain such relief, the Nation must establish that (1) the Secretary owes it a clear duty; (2) the
duty is mandatory, rather than discretionary; and (3) the right to relief is clear.101 The Nation
cannot make this showing.
The Nation contends that since 2008, the Secretary has “consistently and steadfastly”
recognized that the Park City Land is a “mandatory acquisition” under Public Law 98-602, and
thus, the Department’s duty to act on the Park City land is mandatory. The Court agrees with the
Secretary that the Nation, in effect, conflates the Department’s categorization of Public Law 98602 as a “mandatory” acquisition statute with a determination that 98-602 funds were used to
purchase the Park City Land. As the Tenth Circuit made clear, the mandatory obligation under
Public Law 98-602 is invoked only if the land in question was purchased with Public Law 98602 funds.102 As the court explained, a determination that acquisition of land in trust is mandated
necessitates an inquiry of whether that land was purchased with Public Law 98-602 funds.103 The
Department’s use of the phrase “mandatory” when referring to the Nation’s application does not
appear to represent a conclusion on the application but rather, as a means to distinguish between
land-into-trust applications made under Public Law 98-602 and “discretionary” applications
100

In its briefs in support of summary judgment, however, the Nation also argues that it is entitled to a
decision on its application. That issue is raised in the context of whether the Secretary has failed to act upon the
Nation’s application within a reasonable time, as required by APA § 555(b). Accordingly, the Court will consider
the Nation’s request as posed in the alternative.
101

Rios v. Aguirre, 276 F. Supp. 2d 1195, 1199 (D. Kan. 2003) (citation omitted); see SUWA, 542 U.S. at 64
(explaining a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete
agency action that it is required to take); Rios v. Ziglar, 398 F.3d 1201, 1208 (10th Cir. 2005) (noting that the right
to the writ must be “clear and undisputable”) (citation omitted).
102

Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1268 (10th Cir. 2001).

103

Id. at 1263-64.

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made under the Indian Reorganization Act.
Moreover, the Nation’s arguments and requested relief are premised on the assumption
that the Secretary has already determined that the Nation purchased the Park City Land with
Public Law 98-602 funds. It is undisputed that the Assistant Secretary for Indian Affairs holds
the Secretary’s delegated authority to decide the Nation’s application.104 Many of the documents
cited by the Nation are discussions among Department legal staff or exchanges of a redacted draft
memorandum in late 2009. The Nation also focuses on the packets prepared for the Assistant
Secretary’s review and signature, in 2010 and 2012, which the Nation argues can only mean
Department staff had determined Park City was purchased with 98-602 funds. The record is
clear, however, that even if prior formal recommendations to take the land in trust were prepared
by Department staff, a final determination has yet to be made by the Assistant Secretary on the
issue of whether Public Law 98-602 mandates that the department accept the Park City Land into
trust. Thus, Public Law 98-602 does not create a clear, undisputed duty that would allow the
relief the Nation seeks.
Furthermore, as the Secretary notes, the Nation ignores the practical implications of what
they ask this Court to compel. After making a decision to accept land in trust for a tribe’s
benefit, Department regulations require the Secretary to provide a public notice period prior to
actual title transfer, with opportunity for aggrieved parties to challenge the land-into-trust
decision.105 If the Court compels the Secretary to accept the Park City Land in trust, it is unclear

104

See AR000555; 209 Dep’t Manual 8 (April 21, 2003), available at
http://elips.doi.gov/ELIPS/DocView.aspx?id=802.
105

See 25 C.F.R. § 151.12(b).

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how the agency could be determined to have acted arbitrarily and capriciously or contrary to law
in taking that action. In other words, the Nation’s requested relief places the factual question of
whether the Nation purchased the Park City Land with 98-602 funds before the Court rather than
the Secretary, which is outside the scope of judicial authority under the APA.106 Accordingly,
summary judgment is granted in favor of the Secretary with respect to the Nation’s claims that
the Secretary unlawfully withheld its duty to accept the Park City Land in trust, as set forth in
Counts I and II.
B.

Unreasonable Dely

The Court turns to the pace of the processing and whether there has been an unreasonable
delay justifying this Court to compel the Department to take action on the Nation’s pending
application. Section 706(1) also authorizes courts to compel agency action “unreasonably
delayed.” Because Public Law 98-602 does not include a deadline for agency action, the Nation
does not dispute that the Secretary’s decision-making timeline is governed by the APA’s
requirement that federal agencies conclude matters presented to them “within a reasonable
time.”107 “[I]f an angency has no concrete deadline establishing a date by which it must act, and
is instead governed only by general timing provisions . . . a court must compel only action that is
delayed unreasonably.”108 Under those circumstances, the Tenth Circuit has made clear that

106

See Norton v. Utah Wilderness Alliance, 542 U.S. 55, 65 (2004) (where “the manner of [the agency’s]
action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the
action must be”).
107

5 U.S.C. § 555(b).

108

Forest Guardian v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999). “Conversely, when an entity
governed by the APA fails to comply with a statutorily imposed absolute deadline, it has unlawfully witheld agency
action and courts, upon proper application, must compel the agency to act.” Id.

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Section 706(1) of the APA “leaves the courts the discretion to decide whether agency delay is
unreasonable.”109
A mandatory injunction is a drastic remedy that should be reserved for the most
extraordinary circumstances.110 In considering a claim of unreasonable delay, a court must
satisfy itself “that the agency has a clear duty to act and that it has ‘unreasonably delayed’ in
discharging that duty.”111 The Tenth Circuit has recognized four factors that a court may
consider to assess whether a delay warrants judicial intervention: (1) the length of time that has
elapsed since the agency came under a duty to act; (2) the reasonableness of the delay in the
context of the statute authorizing the agency to act; (3) the consequences resulting from the time
that has passed; and (4) “the practical difficulty in carrying out the legislative mandate, or need to
prioritize in the face of limited resources.”112 This inquiry is ultimately governed by a “rule of
reason,” which accounts for the difficulty and complexity of the issue, problems beyond the
agency’s control, an agency’s need to prioritize its own resources, and administrative error.113
The time being taken for agency review should not amount to a “breakdown of regulatory
processes.”114

109

Id. at 1191 n.18.

110

See In re Copper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (discussing in the context of
requiring a district court to act).
111

In re Am. Rivers & Id. Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004).

112

Kim v. U.S. Citizenship & Immigration Servs., 551 F. Supp. 2d 1258, 1265 (D. Colo. 2008) (citing Qwest
Comm. Intern., Inc. v. F.C.C., 398 F.3d 1222, 1239 (10th Cir. 2005)); In re Int’l Chem. Workers Union, 958 F.2d
1144, 1149-50 (D.C. Cir. 1992).
113

Cutler v. Hayes, 818 F.2d 879, 898-99 (D.C. Cir. 1987).

114

Id. at 897 n. 156.

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Extent of Delay
The Nation contends that its application has been under consideration for nearly seven
years, or since it was submitted in April 2006. This argument ignores the fact that the original
application cited the Indian Reorganization Act as providing the Secretary’s discretionary
authority to acquire the Park City Land in trust. The Nation did not amend its application to
proceed under Public Law 98-602 until May 2008. This is significant for two reasons. First, the
2008 application required a determination of whether the Nation used Public Law 98-602 funds
to acquire the Park City Land—a determination the Indian Reorganization Act does not require.
Second, the State did not have reason to submit its comments sooner than September 2010, as it
believed the Department was considering the application under the discretionary authority in the
Indian Reorganization Act. Thus, the Nation’s application under 98-602 has been pending for
approximately five years.
As discussed in detail below, the Secretary asserts that the Nation’s application is being
reassessed in light of the State’s objections that were not raised until February 2012. The
Secretary has not, however, asserted that there is any timetable by which they intend to adjudicate
the Nation’s application. This indefinite and protracted delay tips this factor in the Nation’s
favor.
Reasonableness of the Delay in the Context of the Legislation Authorizing Agency
Action
The Nation contends that Public Law 98-602 gives the Secretary no discretion to take the
land in trust, requiring only that the Park City Land was purchased with Public Law 98-602
funds. Although the Nation stops short of alleging impropriety in the processing of its
application, it implies that the State’s objections and consequential delay by the Secretary are
22

politically motivated. The Secretary correctly points out, however, that the Nation once again
relies on the faulty assumption that the Secretary has determined that issue. The Secretary further
counters that the rule of reason demonstrates that the Department’s ongoing review is not the
type of egregious delay that would warrant an order compelling it to act. Rather than a
breakdown of regulatory process, as alleged by the Nation, the Secretary argues that the
Department’s review reflects a legitimate effort to adequately assess the factual and legal validity
of the Nation’s application, which is particularly appropriate given the years of litigation
surrounding the Shriner Tract.
The Secretary’s position is well taken. The record shows that, contrary to the Nation’s
claims, the Secretary has made efforts to both move the application forward and assess and
respond to the concerns of those in opposition. As the Secretary notes, the funds question is the
keystone of the Secretary’s authority to acquire the land in trust under Public Law 98-602. As
the parties and this Court are well-aware, the Secretary’s approval of the Nation’s related Shriner
Tract acquisition under Public Law 98-602 resulted in more than a decade of litigation. Like this
case, the Shriner Tract litigation focused on whether the Nation used Public Law 98-602 funds to
purchase the property, and resulted in the courts twice remanding the funds question back to the
Secretary for reconsideration.115 Here, the Department has twice decided to reevaluate the
application based on concerns the State raised, first with respect to the legal interpretation of
Public Law 98-602 and second, with respect to what the State contends is a previously-unknown
expenditure of funds. After this latest issue was raised in February 2012, the Department took

115

See Sac & Fox Nation, 240 F.3d at 1263-64; Governor of the State of Kan. v. Norton, No. 03-4140-JAR,
2005 WL 1785275 at **2,4 (D. Kan. July 27, 2005).

23

steps to involve its Office of Financial Management, and in September and October 2012, the
State submitted a detailed accounting report raising new issues for concern that are much broader
than the initial question regarding the year the $25,000 was withdrawn to purchase the Park City
Land. Based on the State’s submissions, the Secretary determined that reassessment of the
Nation’s application is justified. The Secretary has recently met with representatives of both the
Nation and the State, and the investigation is active and ongoing. Under these circumstances, the
Court finds this factor weighs in the Secretary’s favor.
Consequences of the Delay
The Nation claims that the delay in review time has resulted in a competitive
disadvantage compared to other casinos, and a delay in the potential revenues that the casino
could afford the Nation. The Secretary counters that while the opportunity for economic
development presents a possible solution to tribal social welfare issues, this case does not present
a harm to human health and welfare, distinguishing it from other cases in which courts have
required agency action to occur within a specific time frame.116 Accordingly, this factor appears
to be neutral.
Administrative Difficulties Bearing on the Agency’s Ability to Resolve an Issue
The Secretary asserts that the Nation is requesting, in effect, that the Department make
the Nation’s application its top priority, which may result in a commensurate lengthening of the
review process for actions requested by other tribes facing social and economic needs. The

116

See, e.g., In re Int’l Chem Workers Union, 958 F.2d at 1150 (explaining that the serious heath risks
associated with cadmium exposure warranted setting a deadline for finalizing new requirements for handling
cadmium); Families for Freedom v. Napolitano, 625 F. Supp. 2d 535 (S.D.N.Y. 2009) (involving regulations to
curtail abuse at immigration detention facilities); Pub. Citizens Health Research Grp. v. Comm’r, Food & Drug
Admin., 740 F.2d 21(D.C. Cir. 1984) (involving regulations to avoid Reye’s syndrome and death in children).

24

Secretary notes that the Assistant Secretary is responsible for all Indian affairs for the 560 tribes,
not merely this case or even land-into-trust applications. Answering the funding question posed
by the State also requires some level of accounting forensics, which takes time and resources.
The Nation counters that its application was previously on a list of cases ready for decision,117
and the State’s arguments do not justify its losing its priority position. Courts have noted the
importance of “competing priorities” for limited resources in assessing the reasonableness of
administrative delay.118 There is no evidence here that the Department has treated the Nation
differently from other tribes or that Department staff working on the application are just
“twiddling their thumbs.”119 Because the problem seems to stem from a lack of resources, this
factor also weighs in favor of the Secretary.
Conclusion and Remedy
The Court recognizes that, on its face, a delay of nearly five years in processing the
Nation’s land-into-trust application appears unduly long and works a potential economic
hardship on the Nation and its members. The Court further acknowledges the Nation’s
frustration with two eleventh-hour objections from the State at a point in the process where it
appears its application was being finalized for the Assistant Secretary’s review. Rather than a
breakdown of the regulatory process, however, the Court agrees that the Secretary’s decision to
reassess its review of the application reflects a legitimate effort to adequately address the factual

117

See AR001722-23 (in March 2010, Park City Land was included on list of pending applications “ready to
go within 90 days”; AR002772 (in December 2010, Park City Land was included on a list of “Pending Gaming
Applications Near Final Decision”).
118

See Mashpee Wampanoag Triabal Council, Inc. v. Norton, 336 F.3d 1094, 1100-01(D.C. Cir. 2003)
(citing In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)).
119

Id.

25

and legal validity of the Nation’s application and the State’s detailed and specific accounting and
fund allocation concerns. This is particularly appropriate given the protracted history of these
proceedings and the related Shriner Tract. Moreover, the Nation has not helped to move the
process along by summarily responding to the State’s concerns by taking the position that the
issues raised by the State were already decided by the Secretary early in the process. Thus, after
careful consideration of the factors cited by the Tenth Circuit, the Court concludes that
mandamus relief is not warranted.
The Court turns to whether it should, in its discretion, retain jurisdiction over this case to
ensure that the Secretary continues to make progress toward resolution of the pending
application.120 The Secretary has assured the Court and the Nation that it is diligently attempting
to expeditiously process the Park City Land application. While the Court concludes that the
Secretary’s actions do not amount to unreasonable delay warranting issuance of an order
compelling agency action, it is concerned by the length of time the application process has taken.
Although the Secretary contends that the Department has undertaken the analysis required to
“figure out” the accounting snarls raised by the State, it has not provided the Court with any
timetable or projected dates for resolving the matter. It has been over a year since the State
raised its accounting concerns with the Secretary, and nearly six months since the State
supplemented those concerns with a detailed report prepared by CPA Gottlieb. The Nation is
entitled to a final decision on its application, and to assure that the Secretary proceeds with

120

See Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 120-21 (D. D.C. 2005) (citing Telecommc’ns
Research & Action Ctr. v. F.C.C., 750 F.2d 70, 80 (D.C. Cir. 1984) (recognizing that, even where mandamus is not
appropriate, a court may retain jurisdiction to obtain information regarding the anticipated dates of administrative
action and remain informed of the agency’s progress); Orion Reserves Ltd. P’ship v. Kempthorne, 516 F. Supp. 2d 8,
16 (D. D.C. 2007) (same); Mashpee Wampanoag Tribal Council, 336 F.3d at 1102 (same).

26

diligence and any further delay does not drift into the realm of unreasonableness, this Court will
retain jurisdiction over this case until the Secretary issues a final ruling on the Nation’s
application.
Accordingly, the Secretary shall provide the Nation and the Court with quarterly status
reports detailing the progress the Department has made in processing the Nation’s Park City
Land application. The first report shall be due ninety (90) days after the date of this Order and
shall include a detailed description of all significant actions undertaken processing the Nation’s
application since the date of this Order; subsequent quarterly reports shall include the progress
undertaken since the preceding report. In addition, the Secretary shall provide a schedule of
actions expected to be undertaken during the next and subsequent three month period. Upon
reasonable request by the Nation or the Court, the Secretary shall provide within thirty (30) days
any additional information to explain or supplement its quarterly reports. If the Nation is unable
to obtain additional information from the Secretary, it may petition the Court to order the
Secretary to provide such information. Finally, at any time prior to the issuance of the final
ruling, any party may petition this Court for any additional relief as may be warranted.
C.

Fiduciary Duty

The Nation contends that the Secretary owes the Tribe more than the bare minimum of
administrative regularity required by the APA. The Nation argues that the Secretary has a
general duty to deal fairly with Indians,121 and a specific fiduciary duty under Public Law 98-602.
Because the Secretary is acting as a trustee, the Nation urges that his actions “must not merely
meet the minimal requirements of administrative law, but must also pass scrutiny under the more

121

Morton v. Ruiz, 415 U.S. 199, 236 (1974).

27

stringent standards demanded of a fiduciary.”122 The Nation contends that the Secretary’s
treatment of its land-into-trust application fails to satisfy these standards.
As the Park City Land is not held in trust by the United States, there is no “control or
supervision over tribal monies or properties” from which “the fiduciary relationship normally
exists with respect to those monies or properties.”123 “The federal government . . . incurs specific
fiduciary duties toward particular Indian tribes when it manages or operates Indian lands or
resources. The elements of this type of common law trust are a trustee (the United States), a
beneficiary . . . and a trust corpus (the regulated Indian property lands or funds).”124 In this case,
the essential element of a trust corpus is missing.125 In addition, the Court’s conclusion that the
Secretary’s actions do not constitute unreasonable delay precludes any finding of malfeasance.
Accordingly, the Nation has not stated a claim for breach of fiduciary duty, and Count III is
dismissed.
IT IS THEREFORE ORDERED BY THE COURT that the Wyandotte Nation’s
Motion for Summary Judgment (Doc. 60) is DENIED; the Secretary of the Interior’s CrossMotion for Summary Judgment (Doc. 66), and Intervenor State of Kansas’s Cross-Motion for
Summary Judgment (Doc. 69) are GRANTED in part and DENIED in part; Defendants’ CrossMotions for Summary Judgment are granted with respect to Counts I and III, and the claim in

122

Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001) (internal quotation omitted).

123

Id. at 1098 (citation omitted).

124

Indian Tribal Council of Ariz., Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995) (citations and quotations

omitted).
125

Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284, 1297-98 (D. N.M. 1996), aff’d 104 F.3d 1546 (10th

Cir. 1997).

28

Count II that the Secretary has unlawfully withheld its duty to accept the Park City Land in trust,
which are dismissed; Defendants’ Cross-Motions are denied with respect to the claim in Count II
that the Secretary’s actions constitute unreasonable delay.
IT IS FURTHER ORDERED that this Court shall retain jurisdiction over the remaining
claim of unreasonable delay raised in Count II in this case until the Secretary issues a final ruling
on the Nation’s application. The Secretary shall provide the Nation and the Court with quarterly
status reports detailing the progress the Department has made in processing the Nation’s Park
City Land application. The first report shall be due ninety (90) days after the date of this Order
and shall include a detailed description of all significant actions undertaken processing the
Nation’s application since the date of this Order; subsequent quarterly reports shall include the
progress undertaken since the preceding report. In addition, the Secretary shall provide a
schedule of actions expected to be undertaken during the next and subsequent three month
period. Upon reasonable request by the Nation or the Court, the Secretary shall provide within
thirty (30) days any additional information to explain or supplement its quarterly reports. If the
Nation is unable to obtain additional information from the Secretary, it may petition the Court to
order the Secretary to provide such information. Finally, at any time prior to the issuance of the
final ruling on the pending application, any party may petition this Court for any additional relief
as may be warranted.
IT IS SO ORDERED.
Dated: April 10, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

29

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