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Case 1:08-cv-00317-RWR Document 11 Filed 03/10/2008 Page 1 of 18



/UNITED STATES DISTRICT COURT FOR THE DISTRICT

OF THE DISTRICT OF COLUMBIA



Case No. 1:08-cv-00317-RWR
Judge Richard W. Roberts


BOARD OF COMMISSIONERS OF
CHEROKEE COUNTY, KANSAS,


Plaintiff,

v.

DIRK KEMPTHORNE, in his official
capacity as the SECRETARY OF THE
INTERIOR
and
the UNITED STATES DEPARTMENT
OF THE INTERIOR,


Defendants.







_____________________________________








PLAINTIFF BOARD OF COMMISSIONERS OF CHEROKEE COUNTY’S
REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Defendants offer a host of arguments in opposition to plaintiff’s motion for

preliminary injunction 1/ – including that we were both too late and too early in filing suit

– but it concedes that it did absolutely no environmental review and that it has not done

the analysis required by federal law before allowing gaming to proceed on Indian lands.

Contrary to defendants’ assertions, they are the proper parties because the obligation to

The United States’ Opposition to Plaintiff’s Motion For Preliminary Injunction (D.E. 10) is

conduct NEPA and other reviews is theirs as the responsible federal officials, and the

1/
referred to herein as “Defendants’ Opposition” or “Opposition” and cited as “Opp. at __.” Exhibits to the
Opposition are cited as “Opp. Ex. __.” Plaintiff Board of Commissioners of Cherokee County’s
Memorandum in Support of Motion for Preliminary Injunction is referred to herein as its opening brief and
cited as “Pl. Mem. at __.” Exhibits to plaintiff’s opening brief are cited as “Pl. Mem. Ex. __.”


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Court has both jurisdiction and authority to grant the requested relief. In sum, defendants

have failed to refute Cherokee County’s showing that all four preliminary injunction

factors weigh in favor of granting the requested injunction.

In this action, Cherokee County challenges the Secretary of the Interior’s

decisions to take certain lands into trust and to convey other interests in land for the

benefit of the Quapaw Tribe of Oklahoma – decisions that were taken without public

notice and without regard to governing statutes, regulations, and policy, and that have

allowed the Quapaw Tribe of Oklahoma to engage in fast-paced construction of a large

Indian casino resort without the required environmental review of its effects on the

surrounding human environment. Over half of the development footprint for the new

Quapaw casino project lies in Cherokee County, and the planned casino will impose on

Cherokee County significant environmental impacts that threaten irreparable injury to

Cherokee County but that the Secretary failed to consider, as he is required to do, before

taking lands into trust for the Quapaw. Cherokee County has moved for a preliminary

injunction so that the defendants’ decisions and pending decisions to permit and enable

the Quapaw casino development can be subjected to the environmental review required

by the National Environmental Policy Act (“NEPA”) and the decisional process required

by other federal regulations and department policy before it is absolutely too late.

In its opening brief, Cherokee County showed that defendants violated the Indian

Gaming Regulatory Act (“IGRA”) and their Gaming Acquisition Policy, NEPA and

NEPA’s implementing regulations, the Department’s own land acquisition procedures

found in 25 C.F.R. Part 151, and the Department of the Interior and Bureau of Indian

Affairs’ NEPA implementing guidelines. See Pl. Mem. at 17-36.


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In opposition, defendants barely dispute their violation of NEPA and DOI’s

regulations and NEPA-related policies. Defendants apparently concede, as they must,

that NEPA applied to the Meh-No-Bah acquisitions and that they entirely failed to

comply with NEPA. Instead, defendants’ position is apparently that they may disregard

the law and their obligations there under without any legal consequence so long as they

complete their land conveyances in secret and preclude any complaint from occurring

prior to their transfer of title. For support, they cite the Quiet Title Act (“QTA”), 28

U.S.C. § 2409a, but their own cases show that the QTA does not apply here because our

claims do not call into question the federal government’s title to the lands at issue. Our

claim is therefore redressable, not moot. And our IGRA claim is ripe, since no one

disputes that absent an injunction gaming will commence in a matter of a few months.

Finally, defendants have made no serious attempt to dispute the significant irreparable

harm facing Cherokee County if the planned very substantial gaming development is

allowed to proceed without any consideration at all of its potential adverse impacts on the

human and natural environment in our County.

I.

Cherokee County Has Demonstrated its Likelihood of Success on the
Merits.

A.

Defendants Are The Proper Parties.

Defendants argue first that they are not the proper party to enjoin, but they

provide no authority in support of this assertion. Cherokee County’s complaint and

motion largely are grounded on violations of NEPA, a statute that commands the

compliance of federal agencies. The defendants are exactly the right parties because they


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are the ones who violated the law. The only authority cited by defendants relates to

Indian tribes’ immunity from suit and power of taxation, 2/ and so is simply irrelevant.

Cherokee County seeks in this action to have the defendants’ trust acquisitions for

the Quapaw declared invalid until such time that defendants comply with their legal

obligations in connection with the trust acquisitions. Thus, Cherokee County’s request

for preliminary injunctive relief seeks to enjoin defendants from permitting further

construction of the Quapaw casino development and operation of the casino to maintain

the status quo and prevent further harm to Cherokee County during this litigation.

Defendants mischaracterize the issue by asserting that the United States has no regulatory

role over the Tribe’s construction activities. See Opp. at 5-6. The issue is whether

construction can proceed or a casino can be operated where the construction and

operation is occurring as a result of unlawful action by the defendants in violation of

NEPA and gaming-related statutes.

Defendants offer no authority for their assertion that their trust acquisition actions

“do[ ] not endow the United States with the authority to halt the lawful activities of the

Tribe on that land.” Opp. at 6. None of the cases cited by defendants involve an action

by or against the Department of the Interior or the Secretary, and none stand for the

proposition that the Secretary – or this Court – lacks power to enforce or comply with the

law simply because a tribe’s activities would be affected. Even though, as a general

principle, tribes enjoy the right to self-government, tribes are dependent sovereigns

Defendants cite Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of


2/
Oklahoma, 498 U.S. 505, 509 (1991) (concerning tribal immunity from action seeking to recover state
taxes); National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186, 1192-93 (10th Cir. 2002)
(addressing tribe’s immunity from provision of federal labor law); Merrion v. Jicarilla Apache Tribe, 455
U.S. 130, 137 (1982) (addressing tribe’s power to impose severance tax non-Indian mineral lessees); and
Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-53 (1980)
(addressing tribal immunity from state taxes). See Opp. at 5, 6.


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subject to the plenary power of Congress and the regulatory oversight of the Department

of the Interior. See Oliphant v. Suquamish Tribe, 435 U.S. 191, 208-09 (1978) (“Indian

tribes hold and occupy [Indian lands] with the assent of the United States and under their

authority”) (quotation and citation omitted; decision superseded by statute). Defendants

acknowledge this limitation on tribal sovereignty by describing the Quapaw as “quasi-

sovereign.” Opp. at 6. As a general matter of trust law, defendants, as delegee of the

United States, owner of the Meh-No-Bah interests, maintain the power over trust property

that trustees generally have. See Restatement (Third) of Trusts § 85(1)(a) (2007).

Even setting aside the United States’ general regulatory authority over tribal

construction activities, it has an indispensable role in Indian trust land acquisitions that

must be done in compliance with federal law. As a matter of federal law, the defendants’

acquisition process must include an environmental review of the Quapaw’s planned use

of the acquired lands under NEPA – a federal obligation that the defendants nowhere

dispute. And as a matter of federal law, the defendants must conduct required reviews

before undertaking land acquisitions for the purpose of Indian gaming under IGRA, see

e.g. 25 U.S.C. § 2719 and Pl. Ex. 2(6) (Gaming Acquisition Policy). The defendants

violated these requirements, and an injunction should therefore issue against continued

construction and operation of the planned casino pending compliance with NEPA and

federal gaming laws. There is nothing surprising in that, nor in the impact of the

injunction on the construction companies and Tribe that are acting in concert with the

United States in connection with use of these lands for gaming. Fed. R. Civ. P. 65(d).






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B.

The Quiet Title Act Does Not Bar This Action.

Defendants next assert that the Quiet Title Act, 28 U.S.C. § 2409a, bars this

action because the remedy sought “would nullify the Secretary’s decision to acquire the

allotment in trust or restricted fee for the Tribe.” Opp. at 7. Defendants are wrong,

however, and their own cases make that clear. It is true that the QTA bars actions that

would divest the United States of title. But this action would do no such thing. If the

Court grants Cherokee County’s relief and invalidates the trust transaction at issue, the

United States’ title to the Meh-No-Bah interests will remain the same – with title in the

United States. 3/

The Quiet Title Act waives the United States’ sovereign immunity for actions to

quiet title involving property held by the United States but maintains it with respect to

challenges to the United States’ title to trust or restricted Indian lands. 28 U.S.C.

§ 2409a(a). And it is surely so that “Congress intended the QTA to provide the exclusive

means by which adverse claimants could challenge the United States’ title to real

property.” Block v. N. D. ex rel. Bd. Of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983)

(emphasis added). But the Act does not apply where, as here, there is no challenge to the

ownership interests of the United States. That is clear from the Supreme Court’s holding

And even if it were correct, defendants’ QTA argument would not apply to the application


3/
currently pending. The most intriguing aspect of defendants’ Opposition is their footnote revealing that
“the Quapaw Tribe currently has one application pending to have land taken into trust under the Indian
Land Consolidation Act[,]” which the Secretary has offered to hold in abeyance during the pendency of this
litigation. See Opp. at 2 n.1. The attached exhibit 3, the Declaration of Majel Russell, Deputy Assistant
Secretary-Indian Affairs, describes the pending application as a “forced sale” under 25 U.S.C. § 2204(a) for
minority interests in the Me-Het-Tah-Spada Allotment. Opp. Ex. 3 ¶ 3. Cherokee County understands that
the Me-Het-Tah-Spada Allotment is within Ottawa County, Oklahoma, and bridges the area between the
Quapaw’s planned casino parking area (in Cherokee County) and the casino-hotel structure, providing
customer access to the casino. Notably, neither the Opposition nor the Declaration state whether the
defendants intend to comply with NEPA in connection with the pending application or whether their NEPA
analysis of the pending application would (as is required) take into account the cumulative effects of the
pending acquisition with the prior acquisitions to consider the environmental effects of the Quapaw casino
development as a whole.


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in Block and from the many cases since. Under “the plain language of the statute, for the

QTA to apply to an action: “‘(1) the United States must claim an interest [other than a

security interest or water rights] in the property at issue, and (2) there must be a disputed

title to real property. If either condition is absent, the [QTA] [by its] terms does not

apply[.]’” Citizens Against Casino Gambling in Erie County v. Kempthorne, 2007 WL

1200473, at *6 (W.D.N.Y. Apr. 20, 2007) (quoting Leisnoi, Inc. v. United States, 170

F.3d 1188, 1191 (9th Cir. 1999).

Courts determining the applicability of the Act to actions arising under other

statutes recognize that the central question is whether “the plaintiff’s suit could impact

the United States’ title” to the land at issue. Neighbors For Rational Dev., Inc. v. Norton,

379 F.3d 956, 965 (10th Cir. 2004) (emphasis added) (“Neighbors”); see also Comanche

Nation, Okla. v. United States, 393 F. Supp. 2d 1196, 1207 (W.D. Okla. 2005). Indeed,

defendants principally rely on Neighbors in support of their argument that the QTA bars

Cherokee County’s action here, see Opp. at 7-8, but if anything Neighbors shows just the

opposite. In Neighbors, the plaintiffs challenged the Secretary’s trust acquisition of lands

that had been held by individual Indians as tenants in common. 379 F.3d at 958-59. As

here, the plaintiffs asserted APA claims grounded on violations of the land acquisition

regulations in 25 C.F.R. Part 151 and of NEPA. Id. at 959. But the distinction that

makes every difference is that in Neighbors, a ruling in favor of the plaintiffs would have

divested the United States of title. See id. at 958 (holding “to the extent Neighbors’

requested relief would divest the United States of title to the property the [QTA]

precludes Neighbors’ suit”). See Citizens Against Casino Gambling, 2007 WL 1200473,

at *6 (“In short, the QTA applied to the dispute in Neighbors not because the property


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had Indian land status, but because the lawsuit could result in divestiture of title to real

property in which the United States claimed an interest”).

Defendants also rely on State of Florida, Dep’t of Business Regulation v. U.S.

Dep’t of Interior, 768 F.2d 1248, 1248-55 (11th Cir. 1985), but there again the plaintiffs

challenged the title of the United States. The land at issue was purchased in fee by the

Seminole, which thereafter succeeded in having the Secretary take the land into trust. Id.

Thus, a decision in favor of Florida would have divested the United States of title to the

property. Id. at 1254 (“Here, the appellants seek an order divesting the United States of

its title to land held for the benefit of an Indian tribe.”). Likewise, in Shivwits Band of

Paiute Indians v. Utah., 185 F. Supp. 2d 1245, 1247-48 (D. Utah 2002), the QTA barred

a claim in which the challenged trust acquisition of lands initially held by the tribe in fee,

if successful, would have divested the United States of title. 4/

Neither Neighbors nor Florida governs here because we do not challenge the title

of the United States to lands that it owns. Where the United States’ title to or interest in

Indian lands would not be divested by granting the requested relief, the QTA does not

apply. See, e.g., Comanche Nation, 393 F. Supp. 2d at 1207 (granting preliminary

injunction barring publication in Federal Register of notice of approval of gaming

compact) 5/; Citizens Against Casino Gambling, 2007 WL 1200473, at *6. The same

reasoning has been applied in cases involving boundary disputes concerning Indian lands.

For example, in Pueblo of Sandia v. Babbitt, this Court determined that a boundary

4/
Defendants’ citation to Shawnee Trail Conservancy v. U.S. Dep’t of Agriculture, 222 F.3d 383,
386-88 (7th Cir. 2000) is inapposite because the plaintiffs’ claim styled as a constitutional claim clearly
sought to divest the United States of certain real property interests.
5/
The Comanche Nation court did not cite the Neighbors decision issued by the Tenth Circuit the
prior year, but the Neighbors decision was cited and discussed in briefing by the parties. See Plaintiff’s
Opposition Brief to Defendants’ Motion to Dismiss at 16-17, D.E.44, Comanche Nation v. United States,
5:05-cv-00328 (W.D. Okla.).


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dispute between the Pueblo and the U.S. Forest Service was not subject to the QTA

because “the Pueblo does not seek title to the disputed claim area; title would remain in

the United States government.” 1996 WL 80867, at *4 (D.D.C. Dec. 10, 1996) (emphasis

added). Likewise, in Pueblo of Taos v. Andrus, the Court held that the QTA did not

apply in a similar dispute because “title to both parcels of land involved rests with the

United States[.]” 475 F. Supp. 359, 364-65 (D.D.C. 1979). The Neighbors court

distinguished Pueblo of Taos on that very basis, noting that “decisions for the plaintiff [in

Pueblo of Taos] would not have divested the United States of title to the property.”

Neighbors, 379 F.3d at 964.

In this case, the United States’ legal title to the Meh-No-Bah interests is not in

doubt. Before the defendants’ unlawful actions, the United States held legal title to the

Meh-No-Bah interests, in trust for certain individual Indians. After the defendants’

unlawful actions, the United States still holds the same legal title, now in trust for the

Tribe. And if Cherokee County’s requested relief is granted, the United States would still

continue to hold the same legal title to the lands in question. 6/ For that reason, the QTA

is no bar to this Court’s review of defendants’ violations of NEPA and federal gaming

law, or to the requested preliminary injunction. 7/


6/
The same is true as to the one-sixth interest held under restrictions against alienation. As pointed
out by the defendants, restricted Indian lands are functionally equivalent to trust lands. See Opp. at 4 n.4.
Notably, before and after the acquisitions at issue, the Quapaw maintained and continue to maintain
governmental jurisdiction over the lands, and thus the tribe’s sovereign interest would not be injured by the
requested relief.
7/
regarded as falling outside the Quiet Title Act. In South Dakota v. U.S. Dep’t of Interior, the Eighth Circuit
observed that “[w]e doubt whether the Quiet Title Act precludes APA review of agency action by which
the United States acquires title [for the beneficial use of an Indian tribe].” 69 F.3d 878 (8th Cir. 1995),
cert. granted, judgment vacated, case remanded with instructions to vacate District Court judgment and
remand to Secretary for reconsideration, 519 U.S. 919 (1996) (APA review of the Secretary’s decision to
take land into trust). The Eighth Circuit did not reach the question because it had determined that 25
U.S.C. § 465 was an unconstitutional delegation of power. 69 F.3d at 881, n.1.

Moreover, APA claims challenging the agency’s decision to acquire Indian lands should be


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C.

Cherokee County’s NEPA Claims Are Neither Moot for being
Filed too Late Nor Unripe for Being Filed too Early.

Defendants claim that Cherokee County’s claims are moot because they were

filed too late, after transfer of title, and also that they are not yet ripe because they were

filed too early, before gaming has begun. Neither is correct.

Mootness. According to the defendants, “Plaintiff’s NEPA claims are moot

because the federal actions that triggered NEPA compliance . . . have already been

completed.” Opp at 9. Nothing can be done, say the defendants, because the QTA bars

this action and therefore, defendants’ action “cannot be reversed.” Opp. at 9. And they

offer an extended quotation from Neighbors holding that the issue of the Secretary’s re-

examination of the trust acquisition was moot where “[r]equiring the Secretary to re-

examine its trust acquisition decision would not provide [plaintiff] with any meaningful

relief” because the court had “no power to divest the United States of the property[.]”

Neighbors, 379 F.3D at 965 (quoted at length in Opp. at 9-10). To be sure, if the QTA

actually applied, there would be an issue of redressibility, the aspect of mootness

addressed in defendants cited authorities. Fund for Animals v. U.S. Bureau of Land

Mgmt., 357 F. Supp. 2d 225, 230 (D.D.C. 2004), aff’d on other grounds, 460 F.3d 13

(D.C. Cir. 2006); see also Karst v. Envtl. Educ. & Prot., Inc. v. U.S. Envtl. Prot. Agency,

403 F. Supp. 2d 74, 82 (D.D.C. 2005), aff’d, 475 F.3d 1291 (D.C. Cir. 2007).

But as shown above, the QTA does not bar this action or the relief sought because

neither calls into question the United States’ title to the lands in question. The United

States’ legal title to the Meh-No-Bah allotment would remain the same regardless of

whether Cherokee County’s requested relief were granted. Thus, defendants’ argument

that the NEPA claims are moot is wrong.


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And their reliance on Neighbors is wrong for another reason as well, for there the

federal defendants had already done a NEPA review, and the Tenth Circuit declined to

require another:

We do not think this request for relief is precluded by the Quiet
Title Act. Furthermore, considering various development
proposals after the trust acquisition would not be simply an
exercise in futility. We, nevertheless, conclude this request for
relief is moot because the Secretary complied with [NEPA] when
approving a lease of the [ ] property. We do not think it would be
wise to require the Secretary to plow the same ground twice . . . .
Neighbors never argues the completed environmental assessment
does not adequately consider the environmental impacts and
alternatives to development of the property. Thus, we conclude
Neighbors’ request for an injunction barring development of the
property until a [NEPA] analysis is complete is moot.


Id. at 965-66 (emphasis added).

Not so here, where everyone appears to agree that no NEPA review has ever been

conducted on the planned development. In this case, defendants conducted no

environmental review under NEPA of the Quapaw casino development, in clear violation

of (1) the NEPA statute and its implementing regulations; (2) Department of Interior’s

and Bureau of Indian Affairs’ own NEPA implementing guidelines; (3) the requirements,

including NEPA compliance, of the Department’s trust acquisition regulations in 25

C.F.R. Part 151; and (4) the Department’s published policy concerning land acquisitions

for purposes of Indian gaming and IGRA. See Pl. Mem. at 17-36. The suggestion that it

is too late to comply with the law because the defendants’ acquisitions have taken place

is no defense because the QTA does not preclude relief and because the defendants have

plainly violated federal law.

Ripeness. Defendants also assert that Cherokee County’s first claim comes too

early and so is not yet ripe because “land acquisition and transfer does not implicate


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IGRA,” Opp. at 10, and because no gaming is yet occurring. Id. Defendants are

incorrect in their premise and in their conclusion.

First, the premise. Although IGRA does not contain its own land acquisition

provisions, it is plainly wrong for defendants to claim that “IGRA has nothing to do with

land acquisition or transfer.” Opp at 10. Section 20 of IGRA, codified at 25 U.S.C.

§ 2719, contains a broad prohibition against gaming on lands acquired in trust by the

Secretary after 1988, along with certain specific exceptions to that prohibition. Because

of Section 20’s requirements concerning gaming on post-1988 trust acquisitions, the

Secretary has developed and published specific policies to ensure that gaming can only

occur on post-1988 trust acquisitions if the acquisitions fall within Section 20’s

exceptions. See Pl. Mem. Ex. 2(6) (Gaming Acquisition Policy). In view of the express

command of Section 20, as well as the Secretary’s Gaming Acquisition Policy, IGRA

plainly has quite a lot “to do with land acquisition or transfer.” Opp. at 10. See Pl. Mem.

at 18-21.

And next, the conclusion. Defendants argue that Cherokee County’s claim is not

yet ripe because the casino has not yet opened for business. They refer to IGRA’s

“scheme of civil and criminal actions that may be used to prevent and punish Indian

gaming” that violates IGRA, and assert that “there can be no violation” before gaming

takes place. Opp at 10-11. These assertions confuse the National Indian Gaming

Commission’s (“NIGC”) regulatory authority over gaming violations with the Secretary’s

authority – and duty – to ensure that any gaming on Indian trust lands acquired after 1988

conform to Congress’ command in Section 20 of the Act. Compare 25 U.S.C. § 2719


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with 25 U.S.C. §§ 2704-2706. NIGC has no authority to acquire trust lands for Indian

gaming and no role in the Secretary’s trust acquisition process.

In any event, as detailed in plaintiff’s opening brief, construction on the casino

development is proceeding at speed and the casino is scheduled to open in just four

months, on July 4th. See Pl. Mem. at 5. That will be unlawful unless preceded by

defendants’ required review and approval decisions – reviews and decisions they have

failed to make or even promise to make before allowing gaming to proceed. Thus, there

is absolutely no basis for defendants’ effort to avoid an injunction here – absent an

injunction, gaming operations are planned within a few months and as matters now stand

they will be illegal. That is just the situation that preliminary injunctive relief was

designed to address – imminent unlawful acts.

E.

The Department’s 25 C.F.R. Part 151 Regulations Apply.

Defendants’ last argument is to contest the applicability of the land acquisition

regulations found in 25 C.F.R. Part 151 to defendants’ acquisition of the interests in the

Meh-No-Bah allotment. See Opp. at 11-12. On this score, defendants misconstrue

Cherokee County’s argument and the applicable law.

Contrary to defendants’ argument, Cherokee County does not argue that a statute

must expressly contain an exemption from the Indian Reorganization Act (”IRA”), 25

U.S.C. § 465, or Part 151, or that Section 465 governs all land acquisitions for Indians.

Compare Opp. at 11 to Pl. Mem. at 26-38. The Secretary purportedly effected the

acquisitions at issue under the Indian Land Consolidation Act (“ILCA”). See Opp. at 11.

The Secretary has not promulgated any specific regulations to govern acquisitions of

fractional interests under ILCA. Instead, ILCA expressly provides that Section 465


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applies to ILCA acquisitions, for which Part 151 provides a specified procedure,

including public notice and NEPA compliance. See Pl. Mem. at 26. Part 151 in turn is

not limited to acquisitions under Section 465, but applies broadly to land acquisitions

unless excepted: “These regulations set forth the authorities, policy and procedures

governing the acquisition of land by the United States in trust status for individual

Indians and tribes.” 25 C.F.R. § 151.1. The regulations contain three specific exceptions,

none applicable here: (1) acquisition of lands in fee by individual Indians or tribes; (2)

acquisition of land in trust by inheritance or escheat; and (3) “acquisition of land in trust

status in the State of Alaska, except acquisitions for the Metlakatla Indian Community of

the Annette Island Reserve or its members.” Id.

Thus, the plain meaning of ILCA’s § 2202 calls for the application of Part 151.

Instead, defendants offer a contorted interpretation of that statute. Congress included

Section 2202 in ILCA to provide that “[t]he provisions of [25 U.S.C. § 465] shall apply

to all tribes[.]” 25 U.S.C. § 2202. Defendants contend that this provision was intended

merely to amend Section 465, which by reference to other provisions of the IRA limited

the Secretary’s acquisition authority to tribes that chose to reorganize under the IRA.

Without stating so explicitly, defendants suggest that because Section 2202 merely

amended Section 465, there is no import to attach to its inclusion in ILCA. But that is

flatly contrary to the proviso of Section 2202 that makes clear it does not “supersede any

other provision of Federal law which authorizes, prohibits, or restricts the acquisition of

land for Indians with respect to any specific tribe, reservation, or states(s).” 25 U.S.C.

§ 2202 (emphasis added). In other words, Section 465 applies to all tribes except to the

extent Congress has enacted law concerning the acquisition of land for specific tribes or


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in specific areas. ILCA, which applies to all tribes and across the country, is not such a

law. Thus, defendants have offered no defense for failing to follow the procedure set

forth in Part 151 before acquiring the Meh-No-Bah interests in trust for the Quapaw.

The bottom line is that defendants admit they conducted no NEPA review of the

Quapaw tribe’s casino development, see Def. Ex. 1, and they offer absolutely no

argument or excuse for their failure to do so. Moreover, they have failed to offer any

argument at all to refute Cherokee County’s arguments that NEPA review was required

under the NEPA statute itself and the Department’s own NEPA guidelines, even if

defendants could lawfully avoid compliance with Part 151.

II.

Cherokee County Has Demonstrated Irreparable Harm.

In an effort to undercut Cherokee County’s showing of irreparable harm,

defendants suggest that the only harms that the Court should look at now are those caused

by construction, which by their lights an injunction would not remediate. See Opp. at 5-6,

12. They entirely discount the imminent and irreparable harms Cherokee County

undoubtedly will incur from gaming operations, and unreasonably accuse Cherokee

County of delay in bringing suit. See Opp. at 12-14. Defendants are wrong on all points.

First of all, defendants may make light of it, but Cherokee County has been and

continues to be harmed from the construction activity that causes otherwise irremediable

injury to it. See Pl. Mem. at 10-12, 36-38. The greatest harms, however, will shortly

begin when absent an injunction the casino opens for business on July 4. Defendants

suggest that such harms are speculative because “IGRA imposes a variety of regulations

and requirements that must be complied with before gaming may occur,” citing 25 U.S.C.

§§ 2710 and 2719. Opp. at 13. Would that it were so. Instead, all the Section 2710


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requirements, concerning the need for an approved gaming ordinance, were satisfied

some time ago, and it is Cherokee County’s understanding of the administrative record

that NIGC made the determination that the Quapaw development fell within the strictures

of section 2719. (Defendants have offered no facts or evidence to indicate otherwise.)

Make no mistake: the Quapaw casino development will open for business and Cherokee

County will begin to bear the substantial, irremediable burden of providing the majority

of the public safety cost of the Quapaw casino impacts (among other impacts) in just a

few months absent an injunction. As described in detail in its opening brief, Cherokee

County’s injury is plainly irreparable. See Pl. Mem. at 36-38; Wisc. Gas Co. v. FERC,

758 F.2d 669, 674 (D.C. Cir. 1985).

Defendants also are wrong to suggest that Cherokee County slept on its rights and

therefore does not meet the irreparable injury requirement. Opp. at 13-14. It is certainly

so that Cherokee County became aware of construction activity in the Spring 2007. But

the legal basis for that activity was not disclosed in a public process, as would have been

the case if defendants had followed NEPA and other required procedures. Our opening

brief and the Declaration of June DeHart (Pl. Mem. Ex. 4) recount the significant efforts

made to learn whether and how the Quapaw Tribe had obtained the right to construct and

operate a casino development by at least July 2007. See Pl. Mem. at 15 & Ex. 4.

Thereafter, we attempted to resolve the problems posed by defendants’ failure to comply

with the law through discussions with Department officials. Defendants may complain

we were too patient in that effort; if so, our patience was founded on assurances from

defendants themselves. See Pl. Mem. Ex. 4 ¶¶ 11-16. Through plaintiff’s efforts, the

Assistant Secretary for Indian Lands recognized that the trust acquisitions for the Quapaw


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casino had not proceeded in accordance with department policy and that no NEPA review

had been done, and by December 2007 and January 2008, he indicated that the Secretary

would undertake NEPA compliance of the Quapaw casino development. See id. ¶¶ 12-16.

By the end of January 2008, Cherokee County learned that the Secretary would not take

action to review the Quapaw development pursuant to NEPA, see id. ¶ 17, and

determined that litigation was necessary.

III. Defendants’ Remaining Arguments Are Without Merit.

Defendants offer essentially no argument that an injunction would impair the

government’s interests or the public interest. See Opp. at 14. As Cherokee County set

out in its opening brief, defendants have no legitimate interest in engaging in action that

is contrary to law and they cannot claim to be harmed by an injunction that requires them

to carry out their lawful obligations under NEPA. See Pl. Mem. at 38-39. For similar

reasons, an injunction is in the public interest, because the public has a strong interest in

seeing that public officials faithfully execute the law, particularly laws like NEPA that

embody a public policy to examine the environmental effects of federal actions. See id.

at 39. No harm will befall the defendants if federal law is followed here.

CONCLUSION

For these reasons, and the reasons set forth in plaintiff’s opening brief, Cherokee

County requests that the Court issue the requested preliminary injunction to enjoin the

defendants from permitting any further construction activity on the property and from

permitting operation of the casino until the Secretary has complied with applicable law

by, among other things, completing an environmental assessment and, if necessary, an

environmental impact statement as required by NEPA.


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Dated: March 10, 2008





Respectfully submitted,



_s/Jonathan L. Abram
Jonathan L. Abram, D.C. Bar No. 389896
[email protected]
Audrey E. Moog, D.C. Bar No. 468600
[email protected]
HOGAN & HARTSON LLP
555 Thirteenth Street, NW
Washington, DC 20004–1109
(202) 637-5600 (Telephone)
(202) 659-5910 (Facsimile)


C. Dean McGrath, Jr., D.C. Bar No. 453574 David R. Cooper
[email protected]
June DeHart, D.C. Bar No. 362871
[email protected]
MANATT, PHELPS & PHILLIPS, LLP
700 Twelfth St. NW
Suite 1100
Washington, DC 20005
(202) 585-6500
(202) 585-6600

[email protected]
FISHER, PATTERSON, SAYLOR &
SMITH, LLP
3550 SW 5th Street
Topeka, KS 66601
(785) 232-7761 (Telephone)
(785) 232-6604 (Facsimile)



Counsel for Board of Commissioners of
Cherokee County


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