Wednesday, April 30, 2008

Michigan Gambling Opposition v. Kempthorne

Apr 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5092. As explained by the Appeals Court, in 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Allegan County, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Tribe), to construct and operate a Class III casino. The decision followed Federal recognition of the Tribe in 1998.

A non-profit Michigan membership organization -- Michigan Gambling Opposition (MichGO) -- sued the Secretary of the Interior, the Bureau of Indian Affairs (BIA) and the National Indian Gaming Commission (NIGC) (collectively the DOI) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (NEPA), and that section 5 of the Indian Reorganization Act (IRA), was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appealed the decision.

As BIA studied the Tribe’s proposal, it prepared an environmental assessment (EA) under the auspices of NEPA. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (FONSI) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.

MichGO filed its lawsuit in June 2005, and on the NEPA matters alleged that the preparation of a FONSI rather than an environmental impact statement (EIS) violated NEPA. MichGO contended that the Tribe’s casino is large and controversial, and that the DOI is thus required by law to prepare a full EIS. To support its contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,” distributed to regional directors by the BIA, which provides that proposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS. MichGO maintains that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if mandated by internal DOI guidelines such as the Checklist.

The Appeals Court, with one Justice dissenting in part on non-NEPA issues, held that DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. On the NEPA issue, the Appeals Court said, "The premise underlying MichGO’s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. . . The DOI complied with these requirements when it established its NEPA procedures, now codified in its manual. . . These procedures do not encompass the Checklist. . . The manual does, however, include lists of activities that under its procedures normally require or do not require an EIS or EA.. . . Gaming activities are not included in these lists. In these circumstances, the section 1501.4(b)-(c) process -- EA preparation followed by a decision on whether to prepare an EIS -- is applicable. The DOI followed these procedures and lawfully determined not to prepare an EIS on the basis of the EA."

Access the complete opinion (
click here).