Opinion
CASE NO. 8:03CV133
July 25, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for a Temporary Restraining Order (Filing No. 4) and Motion for Preliminary Injunction (Filing No. 16) filed by the Plaintiff, the Santee Sioux Nation ("Santee Sioux Tribe" or "Tribe"). The Tribe seeks injunctive relief against both Defendants: Gale A. Norton, United States Secretary of the Interior, Department of the Interior; and the United States Department of the Interior, Bureau of Indian Affairs. (Filing No. 16.) Both parties filed evidence in support of their positions. (Filing Nos. 29, 30.)
A hearing on the motions was held on July 7, 2003. Evidence was received, and oral argument was heard. (Filing No. 33.) The requirements of Fed.R.Civ.P. 65 have been satisfied. The parties agreed that the matter would be submitted as a request for a preliminary injunction.
FACTUAL BACKGROUND The Ponca Tribe Restoration Act
In 1962, Congress terminated the United States' trust relationship with the Ponca Tribe. 25 U.S.C. § 980. In 1990, however, Congress restored federal recognition to the Ponca Tribe through the enactment of the Ponca Tribe Restoration Act ("Ponca Restoration Act"), 25 U.S.C. § 983-983h. The Ponca Restoration Act restored to the Ponca Tribe all rights and privileges abrogated in 1962, and also directed the Secretary of the Interior to take lands into trust for the benefit of the Ponca Tribe:
The Secretary shall accept not more than 1,500 acres of any real property located in Knox or Boyd Counties, Nebraska, that is transferred to the Secretary for the benefit of the Tribe. Such real property shall be accepted by the Secretary (subject to any rights, liens, or taxes that exist prior to the date of such transfer) in the name of the United States in trust for the benefit of the Tribe and shall be exempt from all taxes imposed by the Federal Government or any State or local government after such transfer. The Secretary may accept any additional acreage in Knox or Boyd Counties pursuant to his authority under the Act of June 18, 1934 ( 25 U.S.C. § 461 et seq.).25 U.S.C. § 983b(c) (emphasis added).
The Act states that the Secretary "shall" accept land into trust on behalf of the Ponca Tribe if two conditions are met: 1) the land is located in Knox or Boyd Counties; and 2) the total acreage taken into trust in this manner does not exceed 1,500 acres. Id. The land in question must be owned by the tribe in question or meet other defined criteria. 25 C.F.R. § 151.3 151.4.
The Challenged Trust Acquisition
On July 9, 2001, the Ponca Tribe filed an application with the Great Plains Regional Office, Bureau of Indian Affairs, requesting that the United States take a three-acre parcel of land owned by the Ponca Tribe and located in Knox County into trust pursuant to the Ponca Restoration Act. This process did not involve a monetary exchange. In its application, the Ponca Tribe stated that it would use the parcel for a gaming facility. The land consists of a former bar, "Dan's Lounge," on a well-traveled highway that serves as the only access road to the Santee Sioux Tribe's casino located twenty miles west of Dan's Lounge. The three-acre parcel satisfies the two conditions described in the Ponca Restoration Act, as the land is located in Knox County and the total number of acres taken into trust by the Secretary for the benefit of the Ponca Tribe, including the three acres, is below 1,500 acres. See § 983b(c). The Santee Sioux Tribe alleges that the Ponca Tribe intends to operate a casino on the property which would interfere with the Santee Sioux Tribe's operation of its casino, particularly given the location of Dan's Lounge in relation to the Santee Sioux casino.
Prior to July 2001, the United States, pursuant to the Ponca Restoration Act, placed a total of approximately 141 acres of Knox County land into trust for the Ponca Tribe. (Filing No. 35, ¶ 21.)
The Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701-2721, generally prohibits gaming on land acquired in trust after the passage of IGRA in 1988. However, an exception to this general rule relates to restored land taken into trust for an Indian tribe that has been restored to federal recognition, as in the case of the Ponca Tribe in this case. 25 U.S.C. § 2719(b)(1)(B)(iii). In this case, the Director of the Office of Indian Gaming Management determined that the three-acre parcel is "restored land" within the meaning of § 2719(b)(1)(B)(iii) and, therefore, casino gaming could operate on the Dan's Lounge property. On March 5, 2003, the Assistant Secretary, complying with the notice provisions set out in 25 C.F.R. § 151.12(b), published notice that a final decision was made to acquire the three-acre parcel into trust for the benefit of the Ponca Tribe. Land Acquisitions; Ponca Tribe of Nebraska, 68 Fed. Reg. 10,486, 10,486 (Mar. 5, 2003). The notice also described a thirty-day period within which interested parties had the opportunity to seek judicial review of the decision to take the parcel into trust. The thirty-day period ended on April 4, 2003. Id.
Plaintiff's Complaint
On April 4, 2003, the Santee Sioux Tribe filed its Complaint and a motion for a temporary restraining order and preliminary injunction in this Court. (Filing Nos. 1, 4.) The Tribe alleged that the decision to take the parcel into trust was a discretionary decision, and therefore, before making the decision, the Secretary was required to consider the factors set out in 25 C.F.R. § 151.10 and 151.11. Those factors include: the existence of statutory authority for the acquisition; the need of the tribe in question for the land; the purpose for acquiring the land; and jurisdictional problems and potential conflicts over use of the land. 25 C.F.R. § 151.10 and 151.11. (Filing No. 1, ¶ 34.) The Santee Sioux Tribe also alleges that the Secretary violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4370d because she did not prepare an environmental assessment before deciding to take the land into trust. (Filing No. 1, ¶¶ 34-39.) The Tribe also alleges that the Secretary acted arbitrarily and capriciously in finding that the parcel was "restored land" within the meaning of IGRA. The effect of finding that the property fell within the definition of "restored land" was that gaming would be allowed as an exception to IGRA's general prohibition of gaming on land acquired after October 17, 1988. 25 U.S.C. § 2719(a) 2719(b)(1)(B)(iii). The Santee Sioux Tribe seeks declaratory and injunctive relief. The injunctive relief requested is a preliminary injunction prohibiting the government, including the Defendants, from accepting the three-acre parcel into trust for the Ponca Tribe until judgment has been entered in this case and all appeals have been exhausted. (Filing No. 1, "Relief Requested," ¶ 3.)Plaintiff's Motion for TRO and Preliminary Injunction
The parties stipulated that the Tribe's motion for a temporary restraining order could be considered a motion for a preliminary injunction. (Filing No. 9.) Through the motions, the Tribe seeks to enjoin the Defendants from accepting the parcel into trust. The parties reached a stipulation, which rendered the request for a temporary restraining order moot. (Filing No. 12.)
ANALYSIS Standard
In determining whether preliminary injunctive relief should issue, this Court must consider the factors set forth in Dataphase Sys., Inc. v. C L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981):
(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.South Dakota v. Ubbelohde, 330 F.3d 1014, 1026 (8th Cir. 2003) (quoting Dataphase, 640 F.2d at 113).
The burden of establishing the propriety of a preliminary injunction is on the movant. Baker Elec. Co-op, Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir 1994); Modern Computer Sys., Inc., v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir. 1989). No single factor is dispositive, and the factors must be "flexibly weigh[ed]." Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 601 (8th Cir. 1999). The test is not meant to be a "rigid formula." Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034, 1038 (8th Cir. 1999).
Application of the Standard
The Santee Sioux Tribe argues: the Ponca Restoration Act is discretionary; the Defendants abused their discretion in failing to abide by 25 C.F.R. § 151.10 and 151.11; the Secretary acted arbitrarily and capriciously in finding that the land qualifies as "restored" land under IGRA; and the Dataphase factors weigh in the Santee Sioux Tribe's favor.
The Defendants base their argument on the plain language of the Ponca Restoration Act. They argue that the Secretary had no discretion and was required to take the land in question into trust, as the Secretary may only exercise discretion with regard to any land that exceeds 1,500-acres. See 25 U.S.C. § 983b(c). The Defendants assert that regulations regarding discretionary transfers do not apply and the Santee Sioux Tribe cannot succeed on the merits. The Defendants also argue that the other Dataphase factors weigh in their favor. Finally, the Defendants argue that the Santee Sioux Tribe's argument that the Secretary acted arbitrarily and capriciously in finding that the parcel is "restored land" within the context of IGRA is not ripe for decision and, in any event, is an inappropriate basis for injunctive relief.
The Dataphase factors are analyzed below.
1. Threat of Irreparable Harm
The Santee Sioux Tribe argues that the land transfer in question would have a "devastating socio-economic impact/effect on the Santee Sioux Nation." Brief in Support of Plaintiff's Motion for Preliminary Injunction at 8. The Tribe asserts that, absent the injunction, the Ponca Tribe will operate a casino on the premises of the former Dan's Lounge, which will force the Santee Sioux Tribe to lay off employees from its casino and suffer socio-economic harm. Id. at 11.
The threat of irreparable harm is crucial to an injunction. The Eighth Circuit has repeatedly emphasized the importance of this factor. Caballo Coal Co. v. Indiana Mich. Power Co., 305 F.3d 796, 800 (8th Cir. 2002). The Santee Sioux Tribe's argument lacks a sound factual basis. See Goff v. Harper, 60 F.3d 518, 521 (8th Cir. 1995) (finding the threat of the alleged harm "too remote"). The evidence submitted is speculative. (Filing No. 30, Exs. A, B.) The Court finds that this factor weighs in favor of the Defendants.
2. Balance Between Harm to Plaintiff and Injury the Injunction Would Inflict on Other Parties
This factor concerns the balance between the alleged harm to the Plaintiff absent the injunction and the injury that the injunction's issuance would inflict on other interested parties to the action. The Court has already determined that the Santee Sioux Tribe has not established that it will suffer irreparable harm without the injunction. If the injunction were granted, the Ponca Tribe would not be able to use the property as a gaming facility.
The Santee Sioux Tribe has failed to establish any harm it may suffer without the injunction outweighs the harm that will be suffered by the Ponca Tribe if the land is not taken into trust. The Court finds that this factor weighs in favor of neither the Plaintiff nor the Defendants.
3. Likelihood of Success on the Merits a. Mandatory vs. Discretionary Action
With regard to the merits, the Court finds that the language in § 983b(c) stating that the Secretary "shall" accept certain land into trust is mandatory with regard to the land in question. Courts consistently interpret the word "shall" to imply a mandatory duty. United States v. Monsanto, 491 U.S. 600, 607 (1989); Starr v. Mandanici, 152 F.3d 741, 745 (8th Cir. 1998). See also Stanfield v. Swenson, 381 F.2d 755, 757 (8th Cir. 1967) (stating that "[w]hen used in the statutes the word `shall' is generally regarded as an imperative or mandatory and therefore one which must be given a compulsory meaning"). Further support for this interpretation is found in the statute itself, as § 983b(c) also states that the Secretary "may" take land exceeding 1,500 acres into trust. 25 U.S.C. § 983b(c). The linguistic contrast within the same statutory section indicates that the use of the word "shall" was intentional.
"Shall" expresses a "duty" or "require[ment.]" Black's Law Dictionary 1379 (7th ed. 1999).
The legislative history also supports a literal interpretation of the word "shall." The House Committee on Interior and Insular Affairs ("Committee") considered an amendment to the original bill that led to the passage of § 983b(c). In doing so, the Committee proposed that after the first 1,500 acres in question were taken into trust, the Secretary should have the "discretion" to take additional land in trust for a particular tribe. H.R. Rep. No. 101-776, at 4 (1990).
Finally, even if the statute were ambiguous, the interpretation of an agency charged with administering a particular statute is allowed "very great respect." Mountain States Tel. Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 254 (1985). Further, an ambiguous statute must be construed in the favor of the Indian tribe intended to benefit from the statute. County of Yakima v. Confederated Tribes Bands of Yakima Indian Nation, 502 U.S. 251, 269 (1992). b. NEPA and 25 C.F.R. § 151.10 and 151.11
The Santee Sioux Tribe argues that the Defendants violated NEPA and the regulations codified at 25 C.F.R. § 151.10 and 151.11, which require the consideration of the environmental and socio-economic impacts of the proposed transfer. The Tribe then argues that the Defendants' failure to comply with NEPA and §§ 151.10 and 151.11 was arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 500-596. This argument is misplaced. Compliance with NEPA is not required where the agency action in question "involves little or no discretion on the part of the agency." Sac Fox Nation v. Norton, 240 F.3d 1250, 1261 (10th Cir. 2001). Both regulations apply only to discretionary trust acquisitions. 25 C.F.R. § 151.10 (stating that "the Secretary will consider . . . criteria in evaluating requests for acquisition of land when the land is located within or contiguous to an Indian reservation and the acquisition is not mandated") 151.11 (stating that "the Secretary shall consider . . . the following requirements in evaluating tribal requests for the acquisition of lands in trust status, when the land is located outside of and noncontiguous to the tribe's reservation, and the acquisition is not mandated").
For the reasons discussed, the Court finds it unlikely that the Santee Sioux Tribe will prevail on the merits. Despite the recognized importance of irreparable harm — the first factor to be considered when deciding whether to grant injunctive relief, the Eighth Circuit has stated that the likelihood of the movant's success on the merits is the "most important" factor. Shrink Mo. Gov't PAC v. Adams, 151 F.3d 763, 763 (8th Cir. 1998). Given these considerations, this factor weighs heavily in favor of the Defendants.
4. The Public Interest
The Santee Sioux Tribe argues that the public has an interest in "environmental quality" that would be harmed if the Tribe's casino operation were impaired. Little by way of argument or facts has been offered in support of this argument. While the public might benefit from increased employment among the Santee Sioux Tribe, the general public would experience similar benefits if the Ponca Tribe used its land to further its economic goals. As discussed previously, the assumption that the Ponca Tribe's operation of a gaming facility would result in the demise of the Santee Sioux Tribe's own casino is purely speculative. This factor weighs in favor of neither the Plaintiff nor the Defendants.
CONCLUSION
Upon balancing the Dataphase factors discussed above under the particular circumstances of this case, the Court concludes that the four factors favor the denial of injunctive relief.
IT IS ORDERED that the Plaintiff's Motion for a Temporary Restraining Order (Filing No. 4) and Motion for Preliminary Injunction (Filing No. 16) are denied.