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Case 1:08-cv-00317-RWR Document 14 Filed 05/28/2008 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Plaintiff,

BOARD OF COMMISSIONERS OF
CHEROKEE COUNTY, KANSAS,

)
)
)
)
)
)
)
)
)
)
__________________________________________)

Defendants.

v.

KEMPTHORNE, et al.,



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

MOTION TO DISMISS

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,

Defendants, the United States Department of the Interior and Dirk Kempthorne, in his official

capacity as Secretary of the Interior (collectively, “United States”), move to dismiss this action

on the grounds that this Court lacks jurisdiction over the Complaint and that Plaintiff fails to

state any claim upon which relief can be granted. Submitted herewith is Defendants’ Statement

of Points and Authorities in Support of their Motion to Dismiss.

Dated: May 28, 2008

Respectfully submitted,

/s/

_____________________________

AMY S. TRYON
Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division

Case 1:08-cv-00317-RWR Document 14 Filed 05/28/2008 Page 2 of 2

Indian Resources Section
P.O. Box 44378
L’Enfant Plaza Station
Washington, D.C. 20026-4378
(202) 353-8596
[email protected]

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Plaintiff,

BOARD OF COMMISSIONERS OF
CHEROKEE COUNTY, KANSAS,

)
)
)
)
)
)
)
)
)
)
__________________________________________)

Defendants.

v.

KEMPTHORNE, et al.,



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

STATEMENT OF POINTS AND AUTHORITIES

IN SUPPORT OF THE UNITED STATES’S MOTION TO DISMISS

RONALD J. TENPAS
Assistant Attorney General

AMY S. TRYON
GINA L. ALLERY
Trial Attorneys
U.S. Department of Justice
Environment and Natural Resources Division
Indian Resources Section
P.O. Box 44378
L’Enfant Plaza Station
Washington, D.C. 20026-4378
(202) 353-8596
[email protected]

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 2 of 39

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. FACTUAL AND STATUTORY BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A.

B.

C.

D.

The Meh-No-Bah Allotment

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Indian Land Consolidation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The Indian Gaming Regulatory Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The National Environmental Policy Act

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. APPLICABLE STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A.

B.

Standard for Dismissal under Rules 12(b)(1) and 12(b)(6) . . . . . . . . . . . . . . . . . 10

Review of Agency Action Under the APA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A.

Plaintiff lacks standing to challenge the ILCA transfer.

. . . . . . . . . . . . . . . . . . . 14

1.

Plaintiff’s alleged injuries bear no causal connection to the
federal conduct Plaintiff challenges.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a.

b.

c.

Plaintiff has alleged only gaming-related injuries. . . . . . . . . . . . . 16

The ILCA transfer of the Meh-No-Bah Allotment into trust
for the Quapaw Tribe did not authorize gaming on the land.

. . . 17

The ILCA transfer had no effect on the lawfulness of
gaming on the Meh-No-Bah Allotment because the land
was “Indian lands” both before and after the transfer. . . . . . . . . . 19

2.

The relief Plaintiff seeks would not redress its alleged injuries. . . . . . . . 21

B.

C.

Plaintiff’s claim that the land transfers are invalid is barred by
the Quiet Title Act.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The ILCA transfer of the Meh-No-Bah Allotment did not require NEPA
documentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 3 of 39

D.

The Secretary was not required to refer the Meh-No-Bah transfer to
the Office of Indian Gaming Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

1.

The Checklist is irrelevant to the ILCA transfer of the Meh-No-Bah
Allotment.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2.

The Checklist is not binding on the Secretary.

. . . . . . . . . . . . . . . . . . . . 28

The United States has not violated IGRA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

The Section 151 regulations are irrelevant.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

The United States has no power to halt construction activity on the
Meh-No-Bah Allotment.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

E.

F.

G.

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Attached:
Exhibits 1(A) – 1(E), Deeds to Restricted Indian Land

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 4 of 39

I. INTRODUCTION

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,

Defendants, the United States Department of the Interior and the Secretary of the Interior (“the

Secretary” or “the United States”), by undersigned counsel, hereby respectfully submit this

Statement of Points and Authorities in support of their Motion to Dismiss. For the reasons

described below, Plaintiff lacks standing to bring the claims raised in the Complaint, and this

Court accordingly lacks jurisdiction to hear the claims. In addition, the Complaint fails to state

any claim against the United States upon which relief can be granted. The United States

therefore respectfully requests that the Court dismiss the Complaint.

On February 25, 2008, Plaintiff filed a Complaint alleging that the United States violated

the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, and the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f, when it transferred a parcel of

land known as the Meh-No-Bah Allotment from a trust status benefitting individual Indians into

trust on behalf of the Quapaw Tribe of Oklahoma (“Tribe”). Compl. at 11-12. Plaintiff does not

contest that the United States held fee title to the land at issue both before and after the transfer

of beneficial ownership from the individual Indians to the Tribe. Plaintiff contends that the

transfer of beneficial interest in the Meh-No-Bah Allotment “will permit” the construction of a

casino resort on the Allotment without the proper environmental review. Id. at 2. In particular,

Plaintiff alleges that the Secretary failed to prepare an Environmental Assessment (“EA”) or

Environmental Impact Statement (“EIS”) before effecting the transfer; failed to abide by an

internal guidance document for gaming-related land acquisitions, and neglected to apply the

regulations found in 25 C.F.R. Part 151. Id. at 11-12. For relief, Plaintiff asks this Court to

1

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 5 of 39

declare the United States’s transfer of the Meh-No-Bah Allotment invalid; to require the

Secretary to reopen the Meh-No-Bah conveyance and conduct certain NEPA review; to enjoin

the Secretary from proceeding with any additional land transfers on behalf of the Quapaw Tribe

related to the development of the casino; and to enjoin the Secretary and those acting in concert

with him from conducting any further construction activity on the property and from operating

the casino. Id. at 13. /1



The Complaint should be dismissed because Plaintiff lacks standing to challenge the

transfer of the Meh-No-Bah Allotment. The transfer of beneficial interest took place pursuant to

the Indian Land Consolidation Act (“ILCA”), 25 U.S.C. §§ 2201-2221, which was enacted to

encourage and facilitate the consolidation of fractionated Indian land interests resulting from the

failed historical policy of allotting lands to individual Indians and discouraging tribal ownership.

The Meh-No-Bah Allotment had been held by the United States in trust or restricted status for

various individual Indians for more than a century. To complete the ILCA transfer of the

Allotment, the Secretary simply shifted the beneficiary of the fractionated interests in the

property from individual Indians to the Quapaw Tribe; the United States remained the trustee.

The individuals were paid compensation for their interest in the land. Nothing about this transfer

had any effect on Plaintiff whatsoever, let alone resulted in an injury that would confer standing

on Plaintiff to challenge the transaction.

Plaintiff appears to be under the impression that the ILCA transfer of beneficial interest in

the Meh-No-Bah Allotment from individual Indians to the Tribe allowed or authorized gaming to

On the same day it filed its complaint, Plaintiff filed a motion seeking a preliminary injunction.
/1
The United States submitted a response in opposition on March 3, 2008, and Plaintiff filed a
reply on March 10, 2008.

2

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 6 of 39

occur on the land. This is entirely incorrect. ILCA was designed exclusively to benefit Indians

and Indian tribes by helping eliminate pernicious fractionated interests and consolidate land for

tribal governance. In keeping with these goals, the transfer was a simple change in beneficial

owner that had no bearing on any issues related to gaming. The transfer of the land into trust for

the Tribe was neither sufficient nor necessary for gaming to lawfully occur there. It was not

sufficient because there is an entire statutory scheme – IGRA – that regulates the circumstances

under which an Indian tribe may engage in gaming. There are many restrictions on Indian

gaming that have nothing to do with ownership of the land. Moreover, pursuant to IGRA, both

allotments and land held in trust for tribes constitute “Indian lands” on which Indian gaming may

occur. As a result, the status of the Meh-No-Bah Allotment as Indian lands was unchanged by

the ILCA transfer Plaintiff challenges, and so the Allotment’s potential as a site for lawful

gaming by the Quapaw Tribe was also unchanged by the transfer. Even if the transfer had been a

necessary precondition for lawful gaming to occur, moreover, nothing about the transfer itself

authorized, permitted, or otherwise caused gaming to occur on the Allotment. Because

Plaintiff’s only claimed injuries relate to the prospective operation of a casino on the transferred

parcel, Plaintiff has alleged no injury resulting from or attributable to the transfer of beneficial

interest itself – the only federal action Plaintiff challenges. Without such an injury, Plaintiff

lacks standing to challenge the ILCA transfer.

Further, the Complaint should be dismissed because even if Plaintiff had standing to

challenge the transfer of beneficial interest in the Meh-No-Bah Allotment, it cannot prevail on

any of its claims. First, Plaintiff seeks to invalidate a land acquisition that placed title in the

United States in trust for the Quapaw Tribe. This action is barred by the Quiet Title Act

3

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 7 of 39

(“QTA”), 28 U.S.C. § 2409a, which leaves intact federal sovereign immunity from suits seeking

to divest the United States of title to Indian lands. Second, Plaintiff’s claim that the United

States did not properly comply with NEPA cannot prevail because agency actions that clearly

maintain the regulatory status quo, such as the ILCA transfer here, do not require the agency to

prepare NEPA documents or to formally determine whether a categorical exclusion is applicable.

In any event, Plaintiff’s NEPA challenge is moot because the casino is virtually complete. Third,

Plaintiff’s contention that the Secretary failed to abide by a certain internal guidance document is

misplaced because that document is both non-binding and inapplicable to the ILCA transfer of

beneficial interest in the Meh-No-Bah Allotment. Fourth, Plaintiff’s claims of an IGRA

violation are unripe because IGRA regulates gaming and no gaming has taken place on the

property. Fifth, Plaintiff wrongly suggests that the Secretary violated the law by not applying the

implementing regulations of another, separate land acquisition statute to the transfer that was

done pursuant to ILCA. This claim, like the others, is without merit. Finally, the injunctive

relief Plaintiff seeks is unavailable. The Defendants are not in control of the construction activity

Plaintiff seeks to halt; no gaming is yet taking place on the property; and even if gaming were

taking place and were unlawful, the exclusive authority to bring an enforcement action against

the Tribe would lie in the discretion of the National Indian Gaming Commission (“NIGC”). /2

For these reasons and the other reasons set forth below, Plaintiff’s Complaint should be

As indicated above, Plaintiff also seeks to enjoin the United States from “proceeding with any
/2
pending land conveyances relating to the Quapaw casino development.” Compl. at 13. The
Quapaw Tribe currently has a pending request to have land transferred to it under § 2204 of
ILCA. The Secretary of the Interior has agreed to take no action on this request during the
pendency of the present litigation. Ex. 3 to U.S.’s Opp. to Mot. for Prelim. Inj., Decl. of Majel
Russell.

4

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 8 of 39

dismissed.

II. FACTUAL AND STATUTORY BACKGROUND

A.

The Meh-No-Bah Allotment

Plaintiff’s Complaint centers around the construction and development of a casino/hotel

complex by the Quapaw Tribe in the northeastern corner of Oklahoma, where the State borders

Kansas and Missouri. Compl. at 3. The project consists of the construction of the casino/hotel

complex, infrastructure, and amenities on 85 acres of land in Oklahoma; surface vehicle parking

and a driveway on approximately 63 acres in Kansas; and an extension of the driveway on

approximately 30 acres in Missouri. /3

Ex. 1(C) to Pl.’s Mem. in Supp. of Mot. for Prelim. Inj., ¶

2. The development is largely complete, and the Tribe has announced plans to open the casino

for business on July 4, 2008. See Compl. at 3. Plaintiff is planning its own privately managed

casino nearby. Id. at 10.

The land on which the gaming establishment will be located is, in its entirety, a parcel of

land in Oklahoma known as the Meh-No-Bah Allotment. Ex. 1(C) to Pl.’s Prelim. Inj. Mem., ¶

3. The parcel is named for its original allottee, Meh-No-Bah Rabbit, a member of the Quapaw

Tribe who was allotted the land in 1895. Id. Ex. 2(C) at 4. After Meh-No-Bah’s death in 1905,

the Allotment passed in fractionated trust or restricted interests to her heirs through several

generations. Id. at 5-6. /4

At the beginning of April 2007, the entire Meh-No-Bah Allotment was

All 63 acres in Kansas, where Plaintiff is located, are owned by the Tribe in fee simple. As
/3
such, that parcel is subject to the State of Kansas’s jurisdiction.

Notably, the Meh-No-Bah Allotment and other parcels of land were allotted to members of the
/4
Quapaw Tribe pursuant to an Act of the Quapaw National Council approved on March 23, 1893,
and ratified and confirmed by Congress with the Act of March 2, 1895, 28 Stat. 876, 907.
“‘Indian country’. . . means . . . (c) all Indian allotments, the Indian titles to which have not been

5

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 9 of 39

held by the United States in trust for four individual Indians and one Indian estate in varying

shares. In five separate transactions over the next three months, the United States transferred

five-sixths of the Allotment from its individual Indian landowners in trust to the Quapaw Tribe;

the remaining one-sixth of the land was transferred to the Tribe in restricted fee status. /5

All five

transactions took place pursuant to ILCA. See Deeds to Restricted Indian Land (attached as Exs.

1(A)-(E)). The first two transactions each involved a one-quarter undivided beneficial interest in

the Allotment, for a total of a one-half undivided interest. These interests were transferred from

their individual Indian owners into trust for the Tribe on April 27, 2007. Exs. 1(A), (B). Two

additional one-sixth beneficial interests were transferred from their individual Indian owners into

trust for the Tribe on May 18, 2007 and July 6, 2007, respectively. Exs. 1(C), (D). The final

transaction, on July 10, 2007, involved the transfer of the remaining one-sixth undivided

beneficial interest in the Allotment to the Tribe in restricted fee status. Ex. 1(E). Thus, after July

2007, the Meh-No-Bah Allotment was held by the United States in trust and restricted fee solely

for the Quapaw Tribe.

B.

The Indian Land Consolidation Act

extinguished, including rights-of-way running through the same.” 18 U.S.C. § 1151. Although
Congress enacted Section 1151 as a guide to federal criminal jurisdiction, the Supreme Court has
applied this definition to questions of federal civil jurisdiction and tribal jurisdiction. California
v. Cabazon Band of Mission Indians, 480 U.S. 202, 208 (1987); DeCoteau v. Dist. County Court
for Tenth Judicial Dist., 420 U.S. 425, 427 n.2 (1975). Therefore, the Meh-No-Bah Allotment
has always been Indian land and Indian country.

The title of restricted fee land is held by the Indian tribe with specific federally-imposed
/5
restrictions on its use and/or disposition. As the Supreme Court has noted, “[t]he power of
Congress over ‘trust’ and ‘restricted’ lands is the same and in practice the terms have been used
interchangeably.” Okla. Tax Comm’n v. United States, 319 U.S. 598, 618 (1943) (citation
omitted).

6

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 10 of 39

ILCA was adopted in 1983 “in part to reduce fractionated ownership of allotted lands”

resulting from the unsuccessful historic federal allotment policy. Babbitt v. Youpee, 519 U.S.

234, 238 (1997). From the 1870s until 1934, the United States followed a policy, reflected in the

General Allotment Act, 24 Stat. 388, of dismantling Indian tribal governments, allotting parcels

of tribal land to individual members, and conveying “surplus” tribal land to non-Indians. The

allotment policy ultimately resulted in a large-scale transfer of Indian lands out of Indian

ownership, which undermined tribal communities and impoverished the tribes and their

members. See Hodel v. Irving, 481 U.S. 704, 707-08 (1987) (describing allotment policy as

“disastrous for the Indians”); see also Felix Cohen, Handbook of Federal Indian Law § 1.04

(1982 ed.). Allotment also created the problem of “undivided fractionated interests.” As the

House Committee on Interior and Insular Affairs explained when recommending ILCA for

passage,

If an Indian possessed of an allotment failed to make a will (and most Indians did
not make wills), all heirs would inherit a fraction of this allotment. The allotment
would then be owned in “undivided” interests because the heirs would own all of
the allotment together instead of each person having a specific part of the
allotment. . . . [C]ourts have interpreted the law as to allow partition only if all the
heirs agree to it. . . . [S]ome allotments have been passed on from generation to
generation with the number of owners rapidly multiplying – in some cases owners
have only 1/1000th share of the original 160 acre tract.

H.R. Rep. No. 97-908, at 10 (1982).

ILCA was designed to solve these problems. In particular, the law aimed “to allow Indian

tribes: (1) to consolidate their tribal landholdings; (2) to eliminate certain undivided fractionated

interests in Indian trust or restricted lands; and (3) to keep trust or restricted lands in Indian

ownership by allowing tribes to adopt certain laws restricting inheritance of Indian lands to

7

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Indians.” Id. at 9. The statute provides several means of accomplishing the twin goals of tribal

land consolidation and elimination of fractionated interests. It authorizes Indian tribes to adopt

land consolidation plans and submit them for approval by the Secretary. 25 U.S.C. § 2203.

ILCA also describes specific methods tribes can use to acquire and consolidate land holdings.

For example, if an Indian tribe owns more than 50 percent of a tract of trust or restricted land

within the tribe’s reservation, or has the consent of the owners of more than 50 percent of such

land, the tribe may purchase the remainder of the tract for its fair market value. Id. § 2204. An

amendment to the statute in 2000 created a pilot land consolidation program, giving the Secretary

discretionary authority to acquire certain fractional interests in trust or restricted lands, at fair

market value and with the consent of the owner, to be held in trust for the relevant tribe. Id. §

2212(a). In 2004, Congress appropriated nearly $22 million for Indian land consolidation, noting

that the pilot program “has been successful in slowing the problem [of fractionated interests] on

those few reservations where it has been implemented” but that “more needs to be done.” S.

Rep. No. 108-89 (2003). Of that $22 million appropriation, $1 million was earmarked for land

consolidation efforts by the Quapaw Tribe. H.R. Rep. No. 108-330 (2003).

Consistent with these statutory goals, and using funds from the $1 million earmark, the

land at issue in this case, the Meh-No-Bah Allotment, was transferred to the Quapaw Tribe. The

transfer took place in pieces under different sections of ILCA. Four of the five individual Indian

owners of the allotment consented to the transfer of their shares of beneficial interest to the Tribe

in exchange for a payment of assessed fair market value. Exs. 1(A)-(D). Their shares of the

beneficial interest were transferred to the Tribe under 25 U.S.C. § 2212. Id. The fifth owner was

deceased and thus unable to consent to the transfer of his share, so the Tribe purchased the share

8

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 12 of 39

from the owner’s estate for its fair market value under 25 U.S.C. § 2204. Ex. 1(E).

C.

The Indian Gaming Regulatory Act

IGRA was enacted in 1988, designed “in large part to ‘provide a statutory basis for the

operation of gaming by Indian tribes as a means of promoting tribal economic development,

self-sufficiency, and strong tribal governments.’” Citizens Exposing Truth About Casinos v.

Kempthorne, 492 F.3d 460, 462 (D.C. Cir. 2007) (“CETAC”) (quoting Taxpayers of Mich.

Against Casinos v. Norton, 433 F.3d 852, 865 (D.C. Cir. 2006) (“TOMAC”); 25 U.S.C. §

2702(1)). IGRA recognizes that “Indian tribes have the exclusive right to regulate gaming

activity on Indian lands” as long as the gaming complies with federal law and takes place in a

state where gaming is not prohibited. 25 U.S.C. § 2701(5). The statute regulates various aspects

of Indian gaming, such as tribal gaming ordinances, see 25 U.S.C. § 2710, and management

contracts, see id. § 2711. In addition, with certain important exceptions, IGRA generally

prohibits gaming activities on land acquired into trust by the United States after October 17,

1988. Id. § 2719(a).

D.

The National Environmental Policy Act

NEPA sets forth “a broad national commitment to protecting and promoting

environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348

(1989). However, NEPA is a procedural statute; it requires federal agencies to follow certain

procedures when making decisions, but “does not mandate particular consequences.” Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). NEPA requires

federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal

actions significantly affecting the quality of the human environment.” Duncan’s Point Lot

9

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Owners Ass’n v. Fed. Energy Reg. Comm., 522 F.3d 371, 376 (D.C. Cir. 2008) (citing 42 U.S.C.

§ 4332(C)). NEPA applies only when an agency contemplates a major federal action and that

action would significantly affect the quality of the human environment. See Found. on Econ.

Trends v. Lyng, 817 F.2d 882, 885 (D.C. Cir. 1987) (major federal action is “a sine qua non of

NEPA’s applicability (in addition to the requirement of ‘significantly affecting’ the

environment)”). The Supreme Court has emphasized that federal agency determinations

regarding the scope of NEPA documents are entitled to deference. See Kleppe v. Sierra Club,

427 U.S. 390, 412-14 (1976). “[A]s long as the agency’s decision is ‘fully informed’ and

‘well-considered,’ it is entitled to judicial deference and a reviewing court should not substitute

its own policy judgment.” Natural Res. Def. Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir.

1988) (quoting North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980)).

III. APPLICABLE STANDARDS

A.

Standard for Dismissal under Rules 12(b)(1) and 12(b)(6)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dismiss a

complaint for lack of subject matter jurisdiction. If a plaintiff lacks standing to bring a claim,

that is a defect in the court’s subject matter jurisdiction over the claim. See Haase v. Sessions,

835 F.2d 902, 906 (D.C. Cir. 1987) (citing Bender v. Williamsport Area School Dist., 475 U.S.

534, 541 (1986)). “Although the District Court may in appropriate cases dispose of a motion to

dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) on the complaint

standing alone, where necessary, the court may consider the complaint supplemented by

undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus

the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d

10

Case 1:08-cv-00317-RWR Document 14-2 Filed 05/28/2008 Page 14 of 39

193, 198 (D.C. Cir. 2003) (internal quotation marks omitted) (citation omitted).

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the Court to dismiss a

complaint when it fails “to state a claim upon which relief can be granted.” “[T]he accepted rule

[is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Generally, under this standard, the

Court accepts the allegations within the complaint as true and resolves ambiguities in favor of the

pleader. See Harbury v. Deutch, 244 F.3d 956, 958 (D.C. Cir. 2001); Tripp v. Dep’t of Defense,

193 F. Supp. 2d 229, 234 (D.D.C. 2002). However, the Court “need not accept as true inferences

unsupported by facts set out in the complaint or legal conclusions cast as factual allegations.”

Guam Indus. Servs., Inc. v. Rumsfeld, 405 F. Supp. 2d 16, 19 (D.D.C. 2005) (citing Warren v.

District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002)); see also Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.

1994).

B.

Review of Agency Action Under the APA

Plaintiff’s claims are brought via the Administrative Procedure Act (“APA”), which

provides for judicial review of certain administrative actions. See 5 U.S.C. § 704. Section

706(2)(A) of the APA provides that a court may set aside agency action where it finds the action

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This

standard encompasses a presumption in favor of the validity of agency action. Thus, “the

ultimate standard of review is a narrow one. The court is not empowered to substitute its

judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

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402, 416 (1971); see also Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 753 (D.C.

Cir. 2007). The reviewing court’s task is to determine “whether the [agency’s] decision was

based on a consideration of the relevant factors and whether there has been a clear error of

judgment.” Overton Park, 401 U.S. at 416; see also Marsh v. Or. Natural Res. Council, 490 U.S.

360, 378 (1989). Review is based on an examination of the administrative record. 5 U.S.C.

§ 706; Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001) (citing Overton

Park, 401 U.S. 402).

The Secretary’s interpretation of ILCA upon which the transfer of beneficial interest in

the Meh-No-Bah Allotment rested is entitled to the deference normally accorded agencies. See

Am. Fin. Servs. Ass’n v. Fed. Trade Comm’n, 767 F.2d 957, 985 (D.C. Cir. 1985) (APA

“standard of review is a highly deferential one, which presumes the agency’s actions to be valid”

and “requires affirmance if a rational basis exists for the agency’s decision”) (citations omitted).

The courts will grant an agency’s interpretation of its own regulations considerable legal leeway.

See Auer v. Robbins, 519 U.S. 452, 461 (1997) (Secretary’s interpretation of own regulations is

controlling unless “plainly erroneous or inconsistent with the regulation.”).

IV. ARGUMENT

Plaintiff cannot prevail on any of its claims. First, Plaintiff lacks standing to challenge

the Secretary’s transfer of the Meh-No-Bah Allotment under ILCA because Plaintiff has suffered

no injury as a result of that transaction. None of Plaintiff’s alleged injuries can be fairly traced to

the ILCA transfer. Plaintiff appears to be under the impression that the ILCA transfer somehow

authorized or allowed the construction of the Tribe’s casino, but in fact the transfer simply

consisted of changing names on a deed. The transfer of the land from trust status for individual

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Indians to trust status for the Tribe did not change the land’s eligibility for gaming, and had no

effect whatsoever on Plaintiff, let alone caused Plaintiff any injury. Likewise, the remedy

Plaintiff ultimately seeks, a re-do of the ILCA transfer accompanied by NEPA review, would not

redress Plaintiff’s injuries: those injuries all relate to the prospective operation of a casino, and

the ILCA transfer – whether accompanied by NEPA documents or not – has no bearing on

whether a casino may lawfully be operated on the site. Without an injury fairly traceable to the

challenged federal conduct, and redressable by the relief sought, Plaintiff lacks constitutional

standing to sue. The Complaint, as a result, should be dismissed for lack of standing.

Second, under the Quiet Title Act, this Court has no jurisdiction to hear Plaintiff’s

challenge to the ILCA transfer, because the United States retains sovereign immunity in cases

seeking to disrupt federal title to trust or restricted Indian lands. Third, even if Plaintiff had

standing, its claim under NEPA fails because no NEPA documentation is required for actions

that do nothing but preserve the regulatory status quo, such as the land transfer here, and in any

event the NEPA claim is moot because the casino construction is virtually complete. Fourth,

Plaintiff’s contention that the Secretary violated an internal guidance document when transferring

the land is incorrect because the document was both non-binding and inapplicable to the Meh-

No-Bah transfer. Likewise, Plaintiff wrongly alleges that the Secretary was required to abide by

the regulations found in 25 C.F.R. Part 151, because those regulations apply to the initial

acquisition of land in trust by the United States under a separate statute and have no application

to ILCA transfers of beneficial interests in trust land. Plaintiff’s claims under IGRA fail because

no gaming has occurred on the property and no decision has been made to authorize gaming, and

therefore there is no federal action for Plaintiff to challenge. Finally, Plaintiff’s request for

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injunctive relief is misdirected; the relief it seeks is unavailable. Accordingly, Plaintiff’s

Complaint should be dismissed.

A.

Plaintiff lacks standing to challenge the ILCA transfer.

The only federal action Plaintiff targets in its Complaint is the transfer of the beneficial

interests in the Meh-No-Bah Allotment, under ILCA, from trust status for individual Indians into

trust status for the Quapaw Tribe. Plaintiff asks this Court to invalidate that conveyance as well

as to require the United States to re-conduct the transfer while preparing an EA and/or an EIS.

Compl. at 13. However, Plaintiff quite simply lacks standing to challenge the ILCA transfer of

the Meh-No-Bah Allotment. The only effect of the transfer was to change the beneficiary of the

trust land from four individual Indians and one Indian estate to the Quapaw Tribe. Plaintiff

suffered no injury as a result of this land transfer – in fact, the transaction had no effect on

Plaintiff whatsoever.

“The ‘irreducible constitutional minimum of standing contains three elements’: (1) the

plaintiff must have suffered injury in fact, an actual or imminent invasion of a legally protected,

concrete and particularized interest; (2) there must be a causal connection between the alleged

injury and the defendant’s conduct at issue; and (3) it must be ‘likely,’ not ‘speculative,’ that the

court can redress the injury.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C.

Cir. 2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). It is a

plaintiff’s burden to establish standing to sue. See KERM, Inc. v. FCC, 353 F.3d 57, 59 (D.C.

Cir. 2004). In this case, even assuming that Plaintiff’s feared future injuries qualify as

“imminent,” the second and third required elements of standing are absent because Plaintiff’s

injuries bear no causal connection to the challenged federal action, and because the relief

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Plaintiff seeks would not redress its injuries.

1. Plaintiff’s alleged injuries bear no causal connection to the federal conduct
Plaintiff challenges.

“No more fundamental component of standing doctrine exists than the requirement of a

presently demonstrable injury in fact directly traceable to the defendant’s supposedly unlawful

actions.” Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 54 (D.C. Cir. 1991). Here, all of the

injuries Plaintiff alleges in its Complaint either stem from the Tribe’s current construction

activities or are anticipated by Plaintiff as a future result of the Tribe’s prospective operation of

its casino. See, e.g., Compl. at 8 (alleging Plaintiff “will bear the cost of repairing its roads that

have already been damaged by Quapaw construction equipment” and “the cost imposed by the

dramatic increase in vehicle traffic caused by the Quapaw’s 24-hour a day, 365-day a year casino

resort”). These injuries have no causal link to the ILCA transfer of beneficial interests, which is

the only federal action Plaintiff challenges. Plaintiff appears to believe that the Secretary’s act of

approving the ILCA transfer somehow authorized the Tribe to build a casino and conduct gaming

on the parcel. This is just not true. Facially, the ILCA transfer was done for the

Congressionally-approved purposes of tribal land consolidation, not gaming. But there are no

hidden gaming-related consequences of the transaction. The transfer of the Meh-No-Bah

Allotment into trust for the Tribe was neither sufficient nor necessary for Indian gaming to

lawfully occur there. Whether and under what circumstances an Indian tribe may engage in

gaming activities is determined by IGRA. There are many restrictions on Indian gaming that

have nothing to do with ownership of the land, so the mere fact that the Quapaw Tribe is now the

trust beneficiary of the Meh-No-Bah Allotment does not mean that gaming is suddenly allowed

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on the land. In addition, when lawful gaming is permitted, it is permitted on “Indian lands,” a

term which includes individual as well as tribal trust or restricted land. See 25 U.S.C. § 2703(4).

The Meh-No-Bah Allotment was “Indian lands” both before and after the transfer at issue here.

In short, the ILCA transfer did not allow or authorize the Tribe to construct a casino or to engage

in gaming on the land. Because none of Plaintiff’s alleged injuries actually result from the

federal action Plaintiff seeks to set aside, it has no standing to challenge the ILCA transfer. /6

a. Plaintiff has alleged only gaming-related injuries.

In its Complaint, Plaintiff alleges the following injuries: (1) the cost of repairing roads

damaged by the Quapaw Tribe’s construction equipment; (2) the cost that will be imposed by

increased vehicle traffic caused by operation of a 24-hours-a-day, 365-days-a-year casino; (3)

“the public safety burden caused by Quapaw casino customers’ vehicular accidents, and of any

crime or disorderly behavior that spill into the parking lot or further into the county,” (4) funding

of five new law enforcement personnel “to patrol the vicinity of the casino parking area and

respond to service calls in the area”; and (5) the cost of “a new public safety facility in the

vicinity of the Quapaw casino to provide timely and adequate fire and ambulance services.”

This causation analysis does not change even if Plaintiff frames its injuries as resulting from the
/6
United States’s failure to comply with NEPA when effecting the transfer of the Meh-No-Bah
Allotment. “Where plaintiffs allege injury resulting from violation of a procedural right afforded
to them by statute and designed to protect their threatened concrete interest, the courts relax –
while not wholly eliminating – the issues of imminence and redressability, but not the issues of
injury in fact or causation.” Ctr. for Law & Educ., 396 F.3d at 1157 (emphasis omitted).
Causation is lacking here from every angle. Whether or not the United States properly complied
with NEPA’s procedural requirements when transferring the Allotment, the fact remains that the
Plaintiff’s injuries stem from the Tribe’s prospective gaming activity on the land, and the ILCA
transfer did not authorize, allow, enable, or otherwise cause that gaming activity.

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Compl. at 8. /7

All of these injuries plainly relate either to the Tribe’s current lawful construction

activity on its land or to the Tribe’s anticipated future operation of a casino on that land. As

shown below, however, none of the injuries bears a causal relationship to the federal action

Plaintiff challenges in this case. The ILCA transfer is neither a direct cause nor even a but-for

cause of Plaintiff’s alleged injuries.

b. The ILCA transfer of the Meh-No-Bah Allotment into trust for the
Quapaw Tribe did not authorize gaming on the land.

The legal and practical effect of the ILCA transfer was simply to change the trust

beneficiaries of the Meh-No-Bah Allotment from several individual Indians to the Quapaw Tribe.

In other words, the fractional interests owned by the individual Indians were consolidated in the

Tribe. The United States was trustee of the land before the transfer, and it remained trustee after

the transfer. ILCA is “primarily directed to exchanges of Indian tribal lands for individual Indian

trust lands (e.g., allotments) in an effort to consolidate tribal land holdings.” Ute Indian Tribe v.

Utah, 935 F. Supp. 1473, 1504 (D. Utah 1996). Congress favored consolidation so that tribes

could eliminate checkerboard patterns of ownership, which in turn would “reduce instances of

fractionated heirship in trust lands and provide land for tribal programs designed to improve the

economy of the tribe and its members.” Id. (quoting H. Rep. No. 97-908, at 5). The actual land

transfers themselves, however, do not authorize any programs or projects, especially not gaming,

which is subject to its entire own statutory scheme. Plaintiff’s alleged injuries, which all pertain

to gaming on the Allotment, have no causal connection to the ILCA transfer.

Plaintiff also describes its suspicions that the Quapaw Tribe has violated the Clean Water Act,
/7
which are patently irrelevant to the present lawsuit, where the Tribe is not even a party. Compl.
at 9. Plaintiff then devotes three paragraphs to describing its own plans to build a casino in
Cherokee County, “just across its border” from the Quapaw construction site. Id. at 9-10.

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The circumstances under which an Indian tribe may engage in gaming activity are

specified by IGRA. There are many restrictions on Indian gaming that have nothing to do with

ownership of the land, so the mere fact that the Quapaw Tribe is now the trust beneficiary of the

Meh-No-Bah Allotment does not mean that gaming is suddenly allowed on the land. For

example, “IGRA requires tribes that engage or intend to engage in ‘class III gaming’ . . . to

negotiate, enter into, and comply with a compact between the tribe and the state in which the

gaming will occur.” San Manuel Indian Bingo & Casino v. Nat’l Labor Relations Bd., 475 F.3d

1306, 1317 (D.C. Cir. 2007) (citing 25 U.S.C. § 2710(d)(1)(C), (3)(A)). /8

In addition, Class III

Indian gaming can be lawful “only if authorized by a tribal ordinance or resolution approved by

the Chairman of the National Indian Gaming Commission.” Id. at 1318 (citing 25 U.S.C. §

2710(d)(1)(A)). To suggest, as Plaintiff does, that the mere transfer of the Allotment from one

trust status to another authorized or caused the Quapaw Tribe’s gaming to go forward is to ignore

the entire statutory scheme that was designed to regulate gaming.

Plaintiff’s misapprehension of the cause and effect at work in this case is embodied in its

statement, “As a result of defendants’ failure to comply with the law, the Quapaw casino resort

has been under construction for many months.” Compl. at 11. This statement displays Plaintiff’s

failure to understand ILCA, IGRA, and the relationship between the United States and the Tribe.

IGRA divides gaming activities into three classes. Class I gaming includes social games for
/8
minimal prizes and traditional forms of gaming in connection with tribal ceremonies or
celebrations. 25 U.S.C. § 2703(6). Class I gaming is within the exclusive jurisdiction of the
tribe and not regulated under IGRA. Id. § 2710(a). Class II gaming includes games of chance
commonly known as bingo, including pull-tabs, lotto, punch boards, tip jars, and instant bingo,
and card games which are not banked. Id. § 2703(7). Class III gaming is all forms of gaming
that are not Class I or II, including banked card games (such as blackjack) and slot machines. Id.
§ 2703(8). Class II and Class III gaming are subject to IGRA.

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So far, the only role played by the United States has been that of facilitating the transfer of the

beneficial interest in the Meh-No-Bah Allotment from individuals to the Tribe. The United

States did not endorse, authorize, allow, or cause any construction for the proposed casino. The

Tribe has engaged in construction activities on its own – activities which, to date, involve no

violation of law of which the United States is aware. Nor did the ILCA transfer make potential

gaming lawful where it was not lawful before. The United States has taken no action to allow or

authorize gaming by the Tribe on the Allotment. Certainly the ILCA transfer did not have that

effect. Accordingly, Plaintiff’s injuries, which are all related to prospective gaming by the Tribe,

simply were not caused by the federal action Plaintiff seeks to overturn – the ILCA transfer. /9

c. The ILCA transfer had no effect on the lawfulness of gaming on the Meh-
No-Bah Allotment because the land was “Indian lands” both before and after
the transfer.

Finally, the ILCA transfer did not cause Plaintiff’s gaming-related injuries because the

Allotment’s eligibility for use as lawful gaming land was identical both before and after the

transfer occurred. When lawful gaming is permitted, it is permitted on “Indian lands,” a term

which includes individual as well as tribal trust or restricted land. 25 U.S.C. § 2703(4). Under

IGRA’s statutory definition, the Meh-No-Bah Allotment was “Indian lands” both before the

transfer, when the trust beneficiaries were individual Indians, and after the transfer, when the

trust beneficiary became the Tribe. Accordingly, the Allotment’s eligibility for gaming remained

the same after the ILCA transfer as it was before the transfer. Plaintiff’s claimed injuries, which

The only injury Plaintiff alleges to have already occurred is damage to its roads by the Tribe’s
/9
construction equipment. Compl. at 8. It is hard to imagine how the transfer of beneficial interest
under ILCA from individual Indians to the Tribe, which spoke not at all to whether the Tribe
could operate heavy equipment, could be deemed the cause of damage to Plaintiff’s roads.

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will stem from future gaming on the parcel, thus will not have been caused by the ILCA transfer.

Without an injury caused by that land transfer – the only federal action at issue – Plaintiff lacks

constitutional standing to seek to invalidate the transfer.

IGRA “provide[s] a statutory basis for the operation of gaming by Indian tribes as a

means of promoting tribal economic development, self-sufficiency, and strong tribal

governments.’” TOMAC, 433 F.3d at 865 (quoting 25 U.S.C. § 2702(1)). As noted above, the

statute places many restrictions on Indian gaming. One of these restrictions is that “[a] tribe may

conduct gaming only on ‘Indian lands’ within its jurisdiction.” CETAC, 492 F.3d at 462 (citing

25 U.S.C. § 2710(b)(1), (d)(1)(A)(I)). IGRA includes a definition of “Indian lands”:

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United States for the
benefit of any Indian tribe or individual or held by any Indian tribe or individual
subject to restriction by the United States against alienation and over which an
Indian tribe exercises governmental power.


Id. (citing 25 U.S.C. § 2703(4)).

The definition includes trust or restricted land held by or for “any Indian tribe or

individual.” 25 U.S.C. § 2703(4)(B) (emphasis added). Thus, the Meh-No-Bah Allotment was

eligible for gaming before and after the ILCA transfer.

/10

The Tribe must, of course, comply with

the other restrictions and procedures laid out in IGRA in order to game lawfully, but the simple

change in trust beneficiary from the individual Indians to the Tribe did not affect the Allotment’s

The Meh-No-Bah Allotment consists of “lands located within the Quapaw Tribe of

/10
Oklahoma’s jurisdictional boundary.” Exs. 1(A)-(E). See also Ex. 1(B) to Pl.’s Prelim. Inj.
Mem., Bureau of Indian Affairs Letter to NIGC (confirming that the Meh-No-Bah Allotment lies
within the former historic territory of the Tribe and is tantamount to “former reservation lands”
under IGRA); id. Ex. 2(C) at 9-11, Ward Letter to NIGC (describing Tribe’s exercise of
jurisdictional and governmental powers over the Allotment).

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status as “Indian lands” and, therefore, had no effect one way or the other on the land’s eligibility

to host gaming. Accordingly, Plaintiff’s alleged gaming-related injuries cannot be causally

linked to the ILCA transfer.

2. The relief Plaintiff seeks would not redress its alleged injuries.

For the same reasons that causation is absent in this case, the third requirement for

constitutional standing, redressability, is also lacking. If this Court were to grant the relief

Plaintiff requests and invalidate the Secretary’s transfer of the beneficial interests in the

Allotment, that judgment would not necessarily affect the Tribe’s construction activity or the

lawfulness or unlawfulness of any future gaming that takes place on the Allotment, and thus

would have no effect on Plaintiff’s injuries. Nor would the NEPA review Plaintiff seeks resolve

its injuries. Plaintiff wants the United States to redo the ILCA transfer but this time prepare an

EA and/or an EIS. Even were the United States to do this, it would not necessarily preclude the

Tribe from lawful operation of a casino. Because all of Plaintiff’s alleged injuries could occur if

the beneficial interest in the Allotment remained with the individual allottees, these injuries

cannot be redressed by the relief requested. Plaintiff therefore lacks standing not only because it

has no injury that was caused by the United States but also because redressability is absent. See

Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 936-37 (D.C. Cir. 2004) (lack of

redressability alone defeats plaintiffs’ standing to sue).

For these reasons, Plaintiff lacks standing to challenge the ILCA transfer of the Meh-No-

Bah Allotment.

/11

Even if Plaintiff were somehow able to allege an injury directly traceable to the ILCA transfer,
/11
it can hardly be said that Plaintiff is “within the zone of interests” ILCA was designed to protect,
a requirement for prudential standing. See Role Models Am., Inc. v. Geren, 514 F.3d 1308,

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B.

Plaintiff’s claim that the land transfers are invalid is barred by the Quiet Title Act.

In addition, Plaintiff’s challenge to the Secretary’s decision to transfer the Meh-No-Bah

Allotment is barred by sovereign immunity. Plaintiff challenges the land transfer directly, asking

this Court to declare the conveyances of the beneficial interests in the Meh-No-Bah Allotment

invalid, as well as indirectly, by claiming that the Secretary violated NEPA in the transfer

process. Compl. at 13. By both of these routes, Plaintiff seeks to nullify the Secretary’s

decision to transfer the beneficial interest in the allotment to the Tribe. However, the QTA

prohibits suits challenging the United States’s title in trust or restricted fee Indian lands. See

Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-62 (10th Cir. 2004) (citing

United States v. Mottaz, 476 U.S. 834, 843 (1986)). The QTA waives the United States’s

sovereign immunity for suits to adjudicate disputed title to lands, but explicitly states that the

waiver does not apply to trust or restricted Indian lands. 28 U.S.C. § 2409a(a). For a suit to be

prohibited under the QTA, a plaintiff need not explicitly characterize its action as one seeking to

1311-12 (D.C. Cir. 2008). ILCA was designed to help Indians and Indian tribes. Counties and
other municipal organizations have no interest in whether the United States shifts beneficial
interests in Indian land from one trust beneficiary to another, and ILCA does not contain a
provision for community protection. Nor can Plaintiff rely on NEPA’s zone of interests to assert
prudential standing here. Because NEPA does not impose any substantive requirements on an
agency, but simply prescribes procedures whereby agencies can make informed decisions, “the
zone-of-interests of the EIS requirement can be examined only in conjunction with the relevant
substantive provision” – in this case, ILCA. Grand Council of the Crees v. Fed. Energy Reg.
Comm., 198 F.3d 950, 959 (D.C. Cir. 2000). Where the substantive law at issue does not require
consideration of environmental concerns, NEPA cannot serve to further a plaintiff’s
environmental interests relating to a federal action taken under that substantive law. See id.
(holding that petitioner lacked prudential standing to bring NEPA challenge to federal
ratemaking decision under Federal Power Act (“FPA”) because FPA does not require
consideration of environmental concerns). Here, even assuming Plaintiff’s injuries qualify as
environmental, ILCA does not require the Secretary to consider environmental concerns or
community impacts, and so Plaintiff’s injuries do not fall within “NEPA’s zone-of-interests as
applied to” ILCA. Id.

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quiet title in Indian lands. As long as the relief sought would interfere with the United States’s

title to the land, the Indian lands exception to the QTA bars the suit. See Neighbors, 379 F.3d at

961-62 (action seeking declaratory judgment that trust acquisition of Indian lands was null and

void barred by the QTA); Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 143 (9th

Cir. 1987) (action barred by QTA where plaintiff sought “a determination of the boundaries of

the Reservation [and the] effect of a successful challenge would be to quiet title in others than the

Tribe”).

The QTA’s jurisdictional bar applies in this case even though, prior to the Secretary’s

transfer of the Meh-No-Bah Allotment to the Tribe, the land was held by the United States in

trust or restricted status for individual Indians. The standard for determining whether there is a

waiver of sovereign immunity in an Indian lands challenge is not whether the result of the suit, if

successful, would divest the United States of all title whatsoever. Instead, the United States has

not waiv