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Plaintiff,





)
BOARD OF COMMISSIONERS
)
OF CHEROKEE COUNTY, KANSAS,
)

)

)


)

v.
)


)
KEMPTHORNE, et al.,
)


)

)

____________________________________)


Defendants.

































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

Case 1:08-cv-00317-RWR Document 20 Filed 07/28/2008 Page 1 of 56



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PLAINTIFF BOARD OF COMMISSIONERS OF CHEROKEE COUNTY’S

MOTION FOR SUMMARY JUDGMENT ON COUNTS II AND III

OF THE FIRST AMENDED COMPLAINT







Plaintiff Board of Commissioners of Cherokee County, Kansas (“Cherokee County”)

hereby moves for summary judgment on Count II and Count III of its First Amended Complaint.

Cherokee County’s memorandum in support of its motion is included in its opposition to

defendants’ Motion to Dismiss, or in the Alternative for Summary Judgment filed this date.









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Dated: July 28, 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)

Counsel for Board of Commissioners of Cherokee
County

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Plaintiff,





)
BOARD OF COMMISSIONERS
)
OF CHEROKEE COUNTY, KANSAS,
)

)

)


)
v.

)


)
KEMPTHORNE, et al.,
)


)


)
____________________________________)












Defendants.


























IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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

PLAINTIFF BOARD OF COMMISSIONERS OF CHEROKEE COUNTY’S

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS OR IN THE ALTERNATIVE

MOTION FOR SUMMARY JUDGMENT, AND BRIEF

IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT

ON COUNTS II AND III

Plaintiff Board of Commissioners of Cherokee County, Kansas (“Cherokee County”)

hereby responds to the defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint or in

the Alternative for Summary Judgment and cross moves for summary judgment on Counts II and

III of its amended complaint.

INTRODUCTION

In this action, plaintiff Cherokee County challenges the government’s violations of law

that have allowed the construction and operation of a large Indian casino resort without

compliance with the Indian Gaming Regulatory Act (“IGRA”) and without any environmental

review of its effects on the surrounding human environment pursuant to the National

Environmental Policy Act (“NEPA”). The casino development follows from the government’s


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decision 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. As a result of the government’s actions, the casino

development has been largely constructed and is now open for business. Over half the

development footprint lies in Cherokee County, all access to the development passes through

Cherokee County, and all parking for the development is located in Cherokee County. The

casino development imposes myriad environmental impacts and injuries on Cherokee County,

which the government wholly failed to consider, as it is required to do, before taking lands into

trust for the Quapaw for gaming.

This action involves a question of first impression: whether the Secretary can side-step

IGRA and its long-established IGRA policies addressing the acquisition of land for tribal gaming

by the simple expedient of treating its acquisitions as mere paper transactions switching the

beneficial ownership of land interests under the Indian Land Consolidation Act (“ILCA”). Now

that the government has filed its Administrative Record and certified that it is complete, it is

beyond doubt that the government knew full well that the acquisitions would be used to build a

casino. Nevertheless, the Record also makes clear that the government failed to follow its

established and long-standing policy and procedure for acquiring lands for Indian gaming and

failed to document any basis for its departure from established policy. And it is clear that the

government wholly failed to conduct any environmental review under NEPA and failed to

document any rationale to support that failure.

Based on the Administrative Record, other undisputed facts of record, and the governing

law, Cherokee County is entitled to summary judgment on its claims that the government

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violated the Administrative Procedure Act (“APA”) by side-stepping its established policies and

procedures under IGRA and by failing to comply with NEPA.

STATEMENT OF FACTS

Cherokee County first learned of the casino development at the center of this action in

May 2007 when the Quapaw Tribe of Oklahoma announced plans for a large casino development

in the tri-state corner of Oklahoma, Kansas and Missouri. See Am. Compl. ¶ 9; Prelim. Inj. Exs.

1, Declaration of Rod Edmondson ¶ 7 (“Edmondson Decl.”) & 1(A), W. Kennedy, “Tribe

Announces Plans for Resort Casino,” Joplin Globe, May 15, 2007 (“Tribe Announces Plans”).

The development lies partly in Ottawa County, Oklahoma, where the casino and hotel structure

are located, and partly in Cherokee County, where the development’s access road and customer

parking are located. See Am. Compl. ¶¶ 9, 13; Prelim. Inj. Ex.1(A), “Tribe Announces Plans” at

1. Some two million people per year are expected, and even without the required environmental

assessment, it is clear that much of the traffic and other environmental impacts will be felt in

Cherokee County, in which every single casino customer will drive and park on his way to and

from the casino just over the border. See Am. Compl. ¶¶ 9, 50-54; Prelim. Inj. Ex. 1,

Edmondson Decl.¶¶ 7, 10, 19-23. As a result, Cherokee County will bear the brunt of the

casino’s direct and indirect environmental impacts.

A.

The Quapaw Casino Development

Although no public announcement was made prior to May 2007, Quapaw officials stated

at that time that “the tribe ha[d] been working on the project since 1990.” Am. Compl. ¶¶ 9-10;

Prelim. Inj. Ex. 1(A), “Tribe Announces Plans” at 1. “The [ ] project will consist of a

casino/hotel complex, infrastructure and other amenities on approximately 85 acres in Oklahoma,

surface vehicle parking and an access driveway on approximately 63 acres in Kansas, and an

extension of the access driveway on approximately 30 acres in Missouri.” Prelim. Inj. Ex. 1(C),

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C. Artman Letter to Sen. P. Roberts dated Dec. 20, 2007 at 1; see also Am. Compl. ¶ 10. The

entire 63 acres of parking area and access roadway in Kansas is located in Cherokee County.

Am. Compl. ¶ 12. “The [ ] project will consist of a casino/hotel complex, infrastructure and

other amenities on approximately 85 acres in Oklahoma, surface vehicle parking and an access

driveway on approximately 63 acres in Kansas, and an extension of the access driveway on

approximately 30 acres in Missouri.” Prelim. Inj. Ex. 1, Edmondson Decl. ¶ 10. The Quapaw

call the casino development the Downstream Casino Resort. See Am. Compl. ¶ 11; Prelim Inj.

Ex. 1(A) at 1.

The 40-acre Oklahoma parcel on which the casino-hotel structure is located is generally

referred to as the Meh-No-Bah Allotment, named for the original Indian allottee of the parcel.

Am. Compl. ¶ 13; Prelim. Inj. Ex. 1(C), Artman Letter to Sen. P. Roberts dated Dec. 20, 2007 at

1; M. Prelim. Inj. Ex. 1(B), Downing Letter to J. Nelson dated Oct. 25, 2007 at 1-2. The Meh-

No-Bah Allotment is located in an undeveloped area with no existing roads prior to the start of

construction. Am. Compl. ¶ 13; Prelim. Inj. Ex. 1, Edmondson Decl. ¶ 11. In order to bring

casino resort customers to the development, the development plan calls for a new road to connect

the development to Route 166 in Cherokee County and in nearby Missouri. Am. Compl. ¶ 13;

Prelim. Inj. Ex. 1, Edmondson Decl. ¶ 11; see also Prelim. Inj. Ex. 1(E), Quapaw Casino

Development Plan. Interstate casino traffic moves from the interstate highway in Missouri onto

Route 166 into Cherokee County, Kansas, and over the access road into the casino parking area,

also located in Cherokee County, from which customers would make their way into the casino

resort. Am. Compl. ¶ 13; Prelim. Inj. Ex. 1, Edmondson Decl. ¶ 11; see also Prelim. Inj. Ex.

1(E), Quapaw Casino Development Plan.

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On or about May 14, 2007, the Quapaw Tribe held a press conference at which it

announced its final plans for constructing a large-scale $200 million casino resort to operate 24

hours a day, seven days a week and 365 days a year, and to attract two million annual visitors.

Am. Compl. ¶ 9; Prelim. Inj. Ex. 1, Edmondson Decl. ¶¶ 6-7; see also Prelim. Inj. Ex. 2(A), R.

McKinney, “Area Officials Celebrate Quapaw Tribe’s Planned $200 Million Casino, Hotel,”

Joplin Globe, July 31, 2007, at 1. According to the Quapaw, its 12-story hotel will be visible for

three miles in each direction from the interstate. Am. Compl. ¶ 11; Prelim. Inj. Ex. 1(A), “Tribe

Announces Plans” at 1. The Quapaw also plan a second phase of development that includes a

conference center, spa and salon, and have unspecified plans for further development. Am.

Compl. ¶ 11; Prelim. Inj. Ex. 1(A), “Tribe Announces Plans” at 2 . 1/

The current phase of the Quapaw casino resort development includes a large parking area

designed to hold over 2,200 cars, located in Cherokee County, Kansas. Am. Compl. ¶ 12; Prelim.

Inj. Ex. 1, Edmondson Decl. ¶¶ 10, 12. As planned, the Quapaw development contains no

parking area to support its casino resort development except for the parking area in Cherokee

County. Am. Compl. ¶ 12; Prelim. Inj. Ex. 1, Edmondson Decl. ¶¶ 10.

When the casino opened on July 5, 2008, it reportedly drew more than 10,000 visitors

and caused traffic jams along Cherokee County’s Route 166 and backed up traffic as far back as

the interstate highway in neighboring Missouri. See, e.g., G. Grislolano, “More Than 10,000

Pack Casino For Opening Day”, Joplin Globe (attached as Ex. 1). As described by the Quapaw,

the casino contains more than 70,000 square feet of casino floor space, and more than 2,000 slot

machines, 30 table games and 15 poker tables. Am. Compl. ¶ 9; Prelim. Inj. Ex. 1, Edmondson


1/
number of photographs of the current development can be viewed. Other areas of the website are
password-secured and not available to the public.

The Quapaw maintain a website for the project at http://downstream-dashboard.com, on which a

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Decl. ¶ 8 & Ex. 1(A), “Tribe Announces Plans” at 1; Prelim, Inj. Ex. 2(B), R. McKinney, “Work

on Schedule,” Joplin Globe, Dec. 17, 2007 (“Work on Schedule”).





B.

Defendant’s Land Acquisitions for the Quapaw Casino Resort

In order to accumulate land interests in the Meh-No-Bah parcel to build its casino resort,

the Quapaw asked the Secretary to acquire by taking into trust certain fractional interests in the

parcel on which the casino is to be located, and to convey certain restricted fractional interests to

the tribe. Am. Compl. ¶¶ 22-24, 28, 30; AR 143-45, 150-54, 177-78.

In a series of four transactions between April and July 2007, the Secretary acquired a

five-sixths interest in the Meh-No-Bah allotment in trust for the tribe. Am. Compl. ¶¶ 22-24, 28,;

AR 19, 63, 111, 132; see also Prelim. Inj. Ex. 1(C), Artman Letter dated Dec. 20, 2007; Prelim.

Inj. Ex. 2(C), C. Ward Letter dated Aug. 6, 2007 at 6-7 (detailing transactions). In July 2007, the

Secretary also conveyed title in the remaining one-sixth interest in the Meh-No-Bah parcel from

the estate of an individual Indian holding title under restrictions against alienation to the tribe

under restrictions against alienation. Am. Compl. ¶ 30; AR 140; Prelim. Inj. Ex. 1(C), C.

Artman Letter dated Dec. 20, 2007. All these Secretarial actions took place pursuant to the

Indian Land Consolidation Act, 25 U.S.C. § 2201 et seq. Am. Compl. ¶ 33; Prelim. Inj. Ex. 1(C),

C. Artman Letter dated Dec. 20, 2007.

The Indian Land Consolidation Act (“ICLA”), 25 U.S.C. § 2201 et seq., was enacted to

address the problem of fractionated interests on allotment lands. ILCA authorizes DOI, inter alia,

to acquire fractional interests in land in trust for the benefit of tribes. Although ILCA expressly

provides that the general statute authorizing the Secretary to acquire land in trust for Indians, 25

U.S.C. § 465, applies to the Act, see 25 U.S.C. § 2202, the Secretary acquired the five-sixths

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interests in the Meh-No-Bah allotment without applying the governing trust acquisition

regulations codified in 25 C.F.R. Part 151. See Am. Compl. 33-39; Prelim Inj. Ex. 1(C), C.

Artman Letter dated Dec. 20, 2007.

The applicable federal regulations in Part 151 expressly provide that “these regulations

set for 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. Therefore, the trust

acquisition of the five-sixths interest in the parcel was subject to regulations requiring the

Secretary to consider specific criteria and a specific process for trust acquisitions. Section

151.10 expressly requires that “the Secretary will consider [the specified] criteria in evaluating

requests for the acquisition of land in trust status,” including among other requirements, the

“purposes for which the lands will be used” and “the extent to which the applicant has provided

information that allows the Secretary to comply with [the BIA’s] National Environmental Policy

Act Revised Implementing Procedures . . . .” 25 C.F.R. § 151.10(c),(h). Part 151 expressly

applies to the trust acquisition of fractional land interests. 25 C.F.R. § 151.7.

The Secretary has not promulgated any other regulations that specifically govern trust

acquisitions or land conveyances under ILCA. At present, the Department carries out ILCA

transactions through its Indian Land Consolidation Center in the Bureau of Indian Affairs

(“BIA”). See Prelim. Inj. Ex. 3, M. White Decl. ¶¶ 2-3. Prior to approving trust acquisitions or

land conveyances under ILCA, the ILCP requires the acquiring tribe to certify that it does not

intend to change the use of the land to be acquired. Id. ¶ 6. According to the director of the

ILCA program, ILCA has not previously been used to acquire lands for gaming. Id. ¶ 4. The

Department later acknowledged that “[t]he BIA did not complete either an environmental

assessment (EA) or environmental impact statement (EIS) for this project because it determined

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that one is not required for the ILCA transactions.” Prelim. Inj. Ex. 1(C), C. Artman Letter dated

Dec. 20, 2007 at 1. The Administrative Record, however, contains no such determination, so the

December 2007 letter – written some five months after the fifth and final acquisition of Meh-no-

Bah interest – amounts to no more than a post hoc rationalization of the government’s failure to

comply with NEPA. 2/

Acquisitions of land in trust for gaming purposes are subject to the Indian Gaming

Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”). Under IGRA, tribes may operate gaming

only on “Indian lands,” which consist of (1) “lands within the limits of any Indian reservation”

and (2) “lands title to which is . . . held in trust by the United States for the benefit of any Indian

tribe or . . . held by any Indian tribe . . . subject to restriction by the United States against

alienation and over which an Indian tribe exercises governmental power.” 25 U.S.C. § 2703(4).

IGRA also imposes a broad prohibition against gaming on land taken into trust after October 17,

1988 (the date of enactment), unless certain narrow exceptions apply. 25 U.S.C. § 2719.

To carry out its obligations under IGRA, the Department has developed and published

Indeed, even defendants appear to agree that NEPA must be followed in this context. After

specific policies. In accordance with official DOI policy, all gaming-related trust acquisition

2/
acquiring the one-sixth interest under restrictions against alienation in the Meh-No-Bah allotment, the
Quapaw submitted an application to the Eastern Oklahoma Regional Director of the BIA pursuant to Part
151 to have that one-sixth interest taken into trust. Prelim. Inj. Mem. Ex. 1(C). at 1. On December 20,
2007, Assistant Secretary Artman indicated that BIA did intend to “comply with NEPA requirements for
the pending acquisition of the [one-sixth] interest in the Meh-No-Bah allotment.” Id. Within days, the
Quapaw withdrew its application to have the one-sixth interest taken into trust. See Prelim. Inj. Mem. Ex.
4, J. DeHart Decl. ¶ 17.


requires compliance with NEPA, but it has conveyed all the interests in the Meh-No-Bah allotment, either
in trust or with restrictions against alienation, to the Quapaw without conducting any environmental
review of the tribe’s casino development under NEPA. Id. ¶ 12. “The bottom line is that the Tribe now
owns 100 percent of the Meh-No-Bah allotment and BIA records reflect that it is held in trust for the
Tribe.” Prelim Inj. Mem. Ex. 2(D), W. Nordwall Letter dated Aug. 6, 2007 at 2 (providing “a summary
of the acquisition of the Meh-No-Bah Quapaw allotment, [ ] on which [Nordwall] advised the Quapaw
Tribe”).


Thus, as matters stand, the Secretary has acknowledged that taking lands into trust for gaming

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applications must be referred to the Office of Indian Gaming in the Assistant Secretary for Indian

Affairs’ Office of Policy and Economic Development in Washington, D.C. See Prelim. Inj.

Mem. Ex. 2(E), Checklist for Gaming-Related Acquisitions at 1 (“Gaming Acquisition Policy”);

Am. Compl. ¶ 44. No trust acquisitions for purposes of gaming may take place until the Office

of Indian Gaming has approved the acquisition. Prelim. Inj. Mem. Ex. 2(E), Gaming Acquisition

Policy at 1; Am. Compl. ¶ 44.

Here, no such approval occurred. The BIA did not even refer the trust applications to the

Office of Indian Gaming for approval, even though it is clear that no later than May 10, 2007, the

government knew that the Quapaw planned to build a casino on the parcel. AR 201. See also

AR 145 (Quapaw letter to BIA describing the tribe’s need to conclude the acquisitions as

“urgent”); Prelim. Inj. Ex. 3, M. White Decl. ¶ 8 (it was “common knowledge” within BIA that

the Quapaw were building a casino development); Prelim. Inj. Mem. Ex 1(A), “Tribe Announces

Plans” at 1 (reporting Quapaw’s May 15, 2007 press conference describing the location, size,

scope, and timing of their planned gaming development and stating that the tribe has been

working on the project since 1990).

C.

Injury to Cherokee County Caused by Defendant’s Actions

The government’s failure to review the Quapaw casino development under NEPA prior

to taking land into trust for and conveying interests in land to the Quapaw has caused and will

continue to cause substantial injuries to Cherokee County.

The County has a small, declining population of approximately 21,000 living in its 590

square miles (on average, 39 people per square mile), with a per capita annual income of

approximately $14,710. Prelim. Inj. Ex. 1, Edmondson Decl. ¶ 5. Under state law, the County

is responsible for the cost of police services and the cost of fire and other public safety services

in unincorporated areas, and for maintaining County roads. Id. ¶ 16.

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Because of the passage of time, we need not speculate about injury in this case. For

example, the Quapaw development has already damaged Cherokee County roads. Construction

contractors for the Quapaw development have been using State Line Road, a Cherokee County

road, to bring heavy equipment and materials onto the construction site for over a year. Id. ¶ 18.

Part of the construction has involved cutting the existing “chip and seal” hard surface road to

extend a sewer line from the project site into Missouri. Id. Construction traffic already has

interfered with use of the County road and shortened its expected life. Id. See also Am. Compl.

¶¶ 50, 52. 3/

As planned by the Quapaw, all casino traffic will travel through Cherokee County on

County roads, and all or virtually all casino customers will park in Cherokee County. Prelim.

Inj. Ex. 1, Edmondson Decl. ¶ 15. With over two million annual visitors expected at the

Quapaw casino, all of whom will drive on Cherokee County roads and park in Cherokee County,

it is certain that casino traffic will have a significant, adverse and continuing impact on County

roads. Id. ¶ 19. The dramatic increase in traffic will have a significant impact on the cost of

maintaining the roads and on traffic safety, as the expected traffic volume will far exceed the

traffic volume for which the county roads were designed to bear. Id.

Based on the experience of another Kansas jurisdiction with a smaller Indian casino,

Cherokee County expects the casino traffic to cause a significant increase in automobile

accidents and law enforcement service calls in the vicinity of the development. Id. ¶ 20. Even

leaving aside the impact on Cherokee County residents, the increase in vehicle accidents and

dramatic increase in the County’s transient population will require increased police service


Construction work on the parking lot and road in Cherokee County also has destroyed critical
3/
wildlife habitat in the county. The habitat was destroyed without the permit required by Kansas law.
Prelim. Inj. Ex. 1, Edmondson Decl. ¶ 14 & Ex. 1(D) at 6-7 (J. Larson, Kansas Department of Wildlife
and Parks e-mail dated Dec. 27, 2007).

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calls – a burden the County has estimated will require five new law enforcement personnel to

patrol the roads and respond to traffic accidents and fatalities. Id. ¶¶ 19-23. The County also

will need to fund a new public safety substation in the vicinity of the casino to provide adequate

fire and ambulance services to the casino area. Id. ¶ 23; Am. Compl. ¶ 53. All of these impacts

are felt in and by Cherokee County as a direct result of the government’s actions, yet none have

been considered by the Secretary as required by NEPA and other federal law and none has been

mitigated by alterations in the project. 4/

Other environmental impacts exist as well. Starting shortly after the Civil War, Cherokee

County and surrounding counties in Kansas, Missouri and Oklahoma – including Ottawa County

where the Quapaw casino development is centered – were the site of over a century of intensive

coal, lead, and zinc mining. Am. Compl. ¶ 51; Prelim. Inj. Ex. 1, Edmondson Decl. ¶ 24.

Cherokee County and other parts of what is known as the Tri-State mining district have been left

scarred by this history. Id. Today, the U.S. Environmental Protection Agency broadly monitors

this region and continues to engage in reclamation efforts. Id. To this day, communities in the

Tri-State mining district continue to be vulnerable to danger from lead, zinc, cadmium, and other

mining-related contaminants in soil and waters. Id. ¶ 25. Without an environmental study, it is

unknown whether construction and surface disturbance for the Quapaw casino development has

Cherokee County is not opposed to casino development per se; but it is opposed to casino


4/
development that threatens it and its citizens with a significant uncompensated burden without any review
by responsible officials. As set forth in greater detail in its preliminary injunction memorandum, it is
possible that Cherokee County will become the location for one of the four State Lottery-owned gaming
facilities authorized by the 2007 Kansas Expanded Lottery Act. If so, Cherokee County will receive a
percentage of revenues to ameliorate the negative impacts of the development, and under an agreement
between the County and Kansas Penn Gaming, Kansas Penn Gaming will provide additional direct
reimbursement to the County for the infrastructural and public safety costs incurred due to the Kansas
Lottery casino, see id. ¶ 36, and will remain fully responsible for complying with Kansas environmental
laws and standards and with any applicable federal environmental laws.

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caused or will lead to exposure of contaminants in soils or surface or groundwater in Cherokee

County or in other nearby areas.

Likewise, because there has been no environmental review, the Secretary has not

evaluated whether the construction and operation of the casino development violate or otherwise

implicate any substantive environmental laws. Based on the initial review of an environmental

consultant, Cherokee County determined that the project involved likely violations of the Clean

Water Act. See Am. Compl. ¶¶ 54-55; Prelim. Inj. Mem. Ex. 2(F) (Notice of Violation, detailing

suspected violations).

STANDARD OF REVIEW

A.

Legal Standard for Dismissing a Complaint Under Rules 12(b)(1) and
12(b)(6)

In evaluating a motion to dismiss for lack of subject matter jurisdiction under Federal



Rule of Civil Procedure 12(b)(1), a court accepts all of the factual allegations contained in the

complaint as true. Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998). The court may

also consider undisputed facts presented in the record. Tootle v. Sec'y of the Navy, 446 F.3d 167,

174 (D.C. Cir. 2006) (a court may look beyond the pleadings to resolve disputed jurisdictional

facts when considering a 12(b)(1) motion). Although the burden is on the plaintiff to establish

subject matter jurisdiction, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), the

“nonmoving party is entitled to all reasonable inferences that can be drawn in [its] favor,” Artis,

158 F.3d at 1306.

A 12(b)(6) motion should be denied 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). “On review of a 12(b)(6) motion a court ‘must treat the complaint's

factual allegations as true ... and must grant plaintiff the benefit of all inferences that can be

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derived from the facts alleged.’” Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156,

165 (D.C. Cir. 2003) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.

2000)). This is true even if the plaintiff’s allegations are doubtful. Bell Atl. Corp. v. Twombly,

127 S. Ct. 1955, 1965 (2007). Rule 8(a)’s notice pleading standard does not require the plaintiff

to plead a prima facie case. See Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002). Indeed,

even though the plaintiff must provide “more than labels and conclusions,” the complaint “does

not need detailed factual allegations.” Twombly, 127 S. Ct. at 1965. Rule 8(a) simply requires

“a short and plain statement of the claim that will give the defendant fair notice of what the

plaintiff's claim is and the grounds upon which it rests.” Sparrow, 216 F.3d at 1114 (internal

quotation marks omitted).



B.

Legal Standard for Summary Judgment Motion in APA Cases

In determining whether the agency’s action was arbitrary or capricious or in violation of

the APA, the district court sits as an appellate tribunal. Marshall County Health Care Auth. v

Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993). Therefore, it is generally appropriate for the

court to grant summary judgment in such cases, either on the defendant’s motion to dismiss or

the plaintiff’s motion for summary judgment. See Am. Bioscience, Inc. v. Thompson, 269 F.3d

1077, 1083-1084 (D.C. Cir. 2001) (cataloging examples of summary judgment in administrative

review cases).

Summary judgment may be granted only where the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). Material facts are those that “might affect the outcome of the suit under

the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party

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seeking summary judgment bears the initial burden of demonstrating the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party

demonstrates such an absence, the nonmoving party may present “specific facts showing that

there is a genuine issue for trial.” Taylor v. Blakey, 490 F.3d 965, 972 (D.C. Cir. 2007) (internal

quotations and citation omitted) (emphasis in original). In determining whether genuine issues

of material fact exist, the court must draw all reasonable inferences in favor of the non-moving

party. Anderson, 477 U.S. at 255.

The Court Has Subject Matter Jurisdiction Over Cherokee County’s Claims

ARGUMENT



A.

Cherokee County Has Standing to Maintain its Claims

Cherokee clearly has standing to pursue its claims under IGRA and under NEPA, and the

I.




government has not offered any argument to the contrary. Instead, concentrating on ILCA 5/and

an ipse dixit assertion that the ILCA transactions merely switched beneficial owners of the Meh-

No-Bah interests, the government disclaims any responsibility for Cherokee County’s injuries.

The government argues that Cherokee County lacks standing to maintain its claims because (a)

its injuries were not caused by the transfers at issue; (b) because relief would not redress

Cherokee’s injuries; and (c) because Cherokee is not “within the zone of interests ILCA was

designed to protect.” Govt. Br. at 25. The government is wrong on all scores.

The doctrine of standing derives from Article III’s case or controversy requirement and

ensures that a plaintiff has a real stake in the issue being litigated. To have standing, a plaintiff

must show that it is injured in fact; that there is a causal relationship between the injury and the

challenged action; and that the plaintiff’s injury is redressable. See Idaho v. Interstate Commerce


5/
provisions of ILCA. See infra Part II.B.2. It has made no direct claims under ILCA.

Cherokee County asserts only one, alternative argument concerning NEPA that implicates the

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Commission, 35 F.3d 585, 590 (D.C. Cir. 1994)(citing Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992)). In NEPA and APA cases that challenge the defendant’s compliance with

procedural aspects of the statutes, the plaintiff need not meet the normal redressability

requirement. Id. at 591. A plaintiff must also demonstrate that he meets the prudential standing

requirement – that its interest in redressing its injury falls within the “zone of interests” protected

by the statutes at issue. Idaho, 35 F.3d at 590-91.

1.

Injury. The government does not dispute Cherokee County’s allegations and

declaration testimony concerning its injury. See Govt. Br. at 18-19; Am. Compl. ¶¶ 50-55;

Prelim. Inj. Ex. 1, Edmondson Decl. ¶¶ 19-23. Nor could it. Over half of the current

development footprint, and all the casino parking areas, are located within Cherokee County, and

all of the employee and customer traffic to and from the casino travels over Cherokee County

roads on its way to and from the development. See Prelim. Inj. Ex. 1, Edmondson Decl. ¶¶ 15,

19 & Ex. 1(E), Quapaw Casino Development Map. In recent weeks, the casino opened for

business, reportedly receiving over 10,000 visitors in its first hour of business and over 100,000

over the first week of business. Ex. 1, G. Grisolano, “More Than 10,000 Pack Casino For

Opening Day,” Joplin Globe (July 5, 2008); R. McKinney, “Decision To Affect Cherokee

County Casino,” Joplin Globe (July 20, 2008) (attached as Ex. 2). This influx of people and

vehicles into a county with a population of merely 21,000 over 590 square miles constitutes a

gigantic change in the local human environment. Injuries that were imminent a couple of months

ago are now beginning, although the full picture of the direct, indirect, and cumulative adverse

impacts of the Quapaw casino development are not yet known because of the government’s

failure to conduct an environmental review pursuant to NEPA.

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Now that the casino is open for business, Cherokee County bears the burden of not only

the dramatic increase in traffic on its roads, but also the burden of the public safety impacts from

the huge numbers of people and vehicles traveling to and from the casino. Prelim. Inj. Ex. 1,

Edmondson Decl. ¶¶ 16-23. Cherokee County’s injuries are described in greater detail in the

Declaration of Rod Edmondson, submitted with Cherokee County’s Motion for Preliminary

Injunction. Among the most significant of Cherokee County’s injuries is the significant impact

on public safety and costs. Casino traffic necessarily leads to an increased need for police to

patrol the roads and respond to traffic accidents and other law enforcement service calls, as well

a need for additional fire and ambulance services in the area near the casino. Id. at 20-23.

2.

Causation. The government entirely misses the point when it claims that its

decisions did not cause these impacts and injuries. According to the government, all these

injuries “relate to either . . .construction activity . . . or the Tribe’s . . . operation of a casino on

that land,” and “none of the injuries bears a causal relationship to the federal action challenged in

this case.” Govt. Br. at 19. That is so, argues the government, because the decisions at issue

were without substance. They effected no change in the use of the property, but merely

transferred beneficial interests in the Meh-No-Bah tract from individual Indians to the Tribe. Id.

at 19. See also id. at 21 (“[s]o 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[.]”

But that is sophistry. As the Administrative Record confirms, the government actively

undertook to address the Tribe’s need to acquire beneficial interest in the Meh-No-Bah parcel,

knowing those acquisitions were intended to be put to use as the location of a casino. AR 143-45

(July 3, 2007 Letter from Tribe to BIA, stating “it is becoming very urgent that the Tribe be able

to conclude these conveyances[.]”); AR 201 (BIA officials knew no later than May 10, 2007 that

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“the Tribe wants to build a casino on” the Meh-No-Bah parcel); see also AR 177-78 (May 1,

2007 letter from Quapaw counsel to BIA officials, thanking them “for assisting with the pending

real estate transactions” and for going “well beyond the call of duty by providing assistance last

night after regular business hours”).

This was not a case of bare property transfer. It was a reconfiguration of ownership for

the avowed purpose of a gaming development, and there is no fair dispute both that both the

Quapaw and the government knew it. As a result, IGRA and the Department’s IGRA policies

were unquestionably implicated by the proposed acquisitions, and the government was not free

to ignore the known the consequences of its actions. See infra Part II.A.

The government’s also attempts to disconnect its decisions from the gaming that has

ensued by supposing that the individual Indian owners might have conducted gaming on the

parcel even without the government action sought by the tribe. See Govt. Br. at 21-23. First,

even assuming the individuals could have conducted gaming under IGRA and the tribe’s

governing law, it is wild speculation that any large-sized casino project could be pulled together

and financed by a few individuals. We are unaware of any large-scale Indian gaming facility

owned and operated by individual tribe members, and the government points to none. Second,

and in any event, those individuals never sought to game, and are not at issue. Third, and most

importantly, the Government cannot defend noncompliance with NEPA and related statutes by

claiming there were ways for the development to take place without the government action at

issue. See S.W. Neighborhood Assembly v. Eckard, 445 F. Supp. 1195, 1202 (in NEPA action

challenging Government Services Administration’s failure to conduct an adequate environmental

review in connection with lease, standing remained even though builder might have leased

building to another party, leading to the same environmental effects). The indisputable fact is

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that the Tribe sought the federal actions at issue for purposes of a gaming development, and the

government acted with that purpose fully in mind.

3.

Redressability. The government goes furthest afield when it claims that nothing

this Court can do now would redress the injury caused by the government’s violations of IGRA

and NEPA. See Govt. Br. at 23-24. The relief Cherokee County seeks would redress its injuries,

particularly its NEPA-related injuries. First, an injunction requiring the government to reopen

the ILCA acquisitions and conduct any acquisition in accordance with law, including NEPA,

would result in a new decision about whether the parcel can be acquired by the Tribe under

applicable standards and whether the parcel would qualify as Indian lands eligible for gaming

under IGRA’s Section 20. Second, an injunction precluding gaming during the pendency of

environmental review under NEPA would certainly redress the County’s present injuries arising

from operation of the behemoth development. And NEPA exists for a reason – it is entirely

possible that an EIS would uncover environmental impacts significant enough to preclude further

gaming operations. In any event, the NEPA process, which is designed to make federal decision-

makers take a hard look at the environmental consequences of their decisions, necessarily

provides valuable information to Cherokee County and other affected parties and creates

opportunities for decision makers to incorporate mitigation measures into the development’s

physical structure, operation, and financial relationship with nearby jurisdictions. See, e.g., West

v. Sec’y of Dep’t Transp., 206 F.3d 920, 929 (9th Cir. 2000) (NEPA review of completed state

of highway interchange may identify ways to modify operation of interchange or mitigate its

effects).

4.

Zone of Interests. Cherokee County’s interests fall within the zone of interests

of NEPA and IGRA. Plainly, its environmental injuries “fall[ ] squarely within the zone of

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interests protected by [NEPA].” Idaho, 35 F.3d at 590. Likewise, in City of Roseville v. Norton,

219 F. Supp.2d 130 (D.D.C. 2002), aff’d 348 F.3d 1020 (D.C. Cir. 2003), on motions for

summary judgment, the court held that local municipalities had standing to maintain a NEPA

claim arising in connection with the environmental review of an Indian casino development

where the cities cited evidence of particular injury.

Cherokee County’s interests also fall within the zone of interests under IGRA. As

enacted, IGRA reflects Congress’ desire to promote tribal economic development through Indian

gaming on one hand, but also to place limitations on such activity by carefully defining where

such gaming could take place and by placing strict limitations on the expansion of eligible

gaming lands through new land transactions. Local governments and communities injured by

nearby gaming facilities fit easily within the type of plaintiffs Congress would expect to enforce

the Act’s limitations. See, e.g., TOMAC v. Norton, 193 F. Supp.2d 182, 190 (D.D.C. 2002),

aff’d 433 F.3d 852 (D.C. Cir. 2006); City of Roseville, 219 F. Supp.2d at 157-58.

The Government’s zone of interests argument is that because ILCA “does not require

considerations of environmental concerns, NEPA cannot serve to further a plaintiff’s

environmental interests relating to a federal action taken under that substantive law[,]” relying on

Grand Council of the Crees v. Fed. Energy Reg. Comm’n, 198 F.3d 950, 959 (D.C. Cir. 2000).

Govt. Br. at 24. But in Grand Council, the agency defendant did not have authority to consider

environmental interests There, the federal action at issue had to do with the agency’s rate-

setting authority, in connection with which the “Commission ha[d] affirmatively forsworn

environmental considerations.” Id. (emphasis added). Indeed, that agency had no authority to

consider environmental matters in carrying out its statutory functions. See id. (agency

previously had held that environmental factors were “beyond the Commission's authority to

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consider under sections 205 and 206 of the Federal Power Act" and that "the Commission's

authority is limited to review of the rates, terms and conditions of jurisdictional agreements to

ensure that they are just and reasonable and not unduly discriminatory or preferential.") The D.C.

Circuit also cited the agency’s prior holding that “Congress has not granted the Commission

authority to reject rate filings on environmental grounds.” Id.

Here, just the opposite is so. First, the obvious: There is no similar body of law that

immunizes federal actions pursuant to either ILCA or IGRA from consideration of

environmental impacts, and there is nothing in the statutes themselves that provides any basis for

exempting agency decisions from the requirements of NEPA. Second, the Department’s own

view: The Department of the Interior, and its agency the Bureau of Indian Affairs, not only have

authority but have promulgated express policies to carry out environmental reviews under NEPA

and regularly conduct environmental reviews of actions concerning Indian gaming. See infra

Part II.B.1. Indeed, this is conceded even in the government’s litigation position. Although it

(wrongly) claims that by incanting “ILCA” it can avoid the need for NEPA review, even the

government concedes that it has authority to engage in such review. See Govt. Br. at 29 n.13

(“[I]t would be within the Secretary’s discretion to prepare appropriate NEPA documents for

other ILCA transfers.”). 6/

Cherokee County plainly has standing to assert its NEPA and IGRA claims under the

APA, and the government’s motion to dismiss the complaint on that basis should be denied.

B.

The Quiet Title Act Does Not Bar Cherokee County’s Claims


6/
The government is wrong to the extent it suggests that compliance with NEPA is within the
Secretary’s unreviewable discretion. As discussed infra in Part II.B.1, where NEPA applies, federal
officers are required to comply with its mandates. Likewise, under the Administrative Procedure Act, the
only federal actions that are “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), are “those
rare instances where statutes are drawn in such broad terms that in a given case there is no law to
apply.” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (internal quotation
marks omitted).

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The government also attempts to avoid judicial scrutiny by claiming that it slipped one

by. According to the government, now that the transfers have occurred, any review is barred by

the Quiet Title Act. That is so, it claims, because Cherokee County calls into question the

government’s title resulting from the Meh-No-Bah transactions. See Govt. Br. at 25-26. But the

Quiet Title Act is not implicated here.



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

title involving property held by the United States but maintains the United States’ immunity with

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

§ 2409a(a); Block v. N. D. ex rel. Bd. Of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983)

(“Congress intended the QTA to provide the exclusive means by which adverse claimants could

challenge the United States’ title to real property.”) (emphasis added). But the Act does not

apply where, as here, the Court’s ruling would not disturb the United States’ title. 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, in each of the cases the government

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discusses, a ruling in favor the plaintiff would have affected the United States’ title to Indian

lands, by removing trust status or by altering boundaries of trust lands. See Govt. Br. at 25-26.

That is not the case here.



Defendants assert that Meh-No-Bah interests were trust or restricted lands before the

transactions at issue and remained so afterwards, pointing to the language of the deeds recorded

by the Bureau of Indian Affairs. See Govt. Br. at 21-22. 7/ For the purposes of adjudicating

Cherokee County’s claims, the Court can accept that assertion, because a ruling in favor of

Cherokee County does not require any finding by the Court concerning the trust status of the

Meh-No-Bah interests at the time of the Secretary’s transactions. In other words, the Court can

issue the declaratory relief sought – that the interests were invalidly acquired for gaming

purposes without adherence to the law and proper procedure – without affecting the United

States’ title to the land interest.



While Cherokee County takes issue with the Defendants’ failure to conduct any “Indian

lands” inquiry in connection with the Quapaw casino development, see infra Part III, and have

alleged facts that raise questions about the status of the land as of the early twentieth century,

see Am. Compl. ¶¶ 16-20, neither raises a sovereign immunity bar under the Quiet Title Act. As

discussed infra in Part III, the “Indian lands” inquiry is a requirement of IGRA that employs the

specific definition of “Indian lands” provided in that Act; it is not a determination about title to

lands, it is a determination about the eligibility of specific lands for lawful Indian gaming. 8/

Cherokee County’s factual allegations concerning the history of the Meh-No-Bah parcel may be

As the government agrees, for purposes of the Quiet Title Act and in general, “trust’ lands and

relevant to an appropriate “Indian lands” determination conducted by defendants, and serve in

7/
“restricted’ lands are treated identically under the law. See Govt. Br. at 3 n.4.
8/
and III and order the relief requested in Prayer for Relief ¶¶ 1 and 4 without in any way adjudicating a
question concerning the United States’ title to Indian lands.

It is certainly the case that the Court can grant Cherokee County summary judgment on Counts II

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the complaint to identify some of the facts and legal questions one would expect to find

addressed in an appropriate administrative record of an IGRA-compliant acquisition for Indian

gaming (and which are absent from the Administrative Record presented here).

Furthermore, there is no reason to apply the Quiet Title Act’s sovereign immunity

provisions to NEPA claims. In Neighbors, the Tenth Circuit addressed the plaintiff’s NEPA

claim and observed:

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.


Id. at 965-66 (emphasis added). The Tenth Circuit plainly was correct that NEPA compliance

does not involve any disturbance of the United States’ title to Indian land. 9/

II.



Cherokee County Is Entitled To Summary Judgment On Counts II And III Of Its
Amended Complaint.

Counts II and III of Cherokee County’s amended complaint are brought pursuant to the

Administrative Procedure (“APA”), 5 U.S.C. §§ 701-706. The APA provides for judicial review

of “[a]gency action made reviewable by statute and final agency action for which there is no

other adequate remedy in a court.” 5 U.S.C. § 704. Section 706(2)(A) of the APA provides that

a court “shall . . . hold unlawful and set aside” agency action where it finds the action “arbitrary,

Moreover, APA claims challenging the agency’s decision to acquire Indian lands should be
9/
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 (1