Michigan Gambling Opposition v. Kempthorne

525 F.3d 23, 381 U.S. App. D.C. 91, 38 Envtl. L. Rep. (Envtl. Law Inst.) 20102, 2008 U.S. App. LEXIS 9629, 2008 WL 1932769
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 29, 2008
Docket07-5092
StatusPublished
Cited by52 cases

This text of 525 F.3d 23 (Michigan Gambling Opposition v. Kempthorne) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 381 U.S. App. D.C. 91, 38 Envtl. L. Rep. (Envtl. Law Inst.) 20102, 2008 U.S. App. LEXIS 9629, 2008 WL 1932769 (D.C. Cir. 2008).

Opinions

[26]*26Opinion for the Court filed PER CURIAM.

Opinion dissenting in part by Circuit Judge BROWN.

PER CURIAM:

In 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (“the Tribe”), which plans to construct and operate a Class III casino. This decision followed federal recognition of the Tribe in 1998. A non-profit Michigan membership organization — Michigan Gambling Opposition (“MichGO”)— sued the Secretary of the Interior, the Bureau of Indian Affairs (“BIA”) and the National Indian Gaming Commission (“NIGC”) (collectively the “DOI”) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et seq., and that section 5 of the Indian Reorganization Act (“IRA”), 25 U.S.C. § 465, was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appeals. We hold that the DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. Accordingly, we affirm.

I.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians has lived in Michigan continuously since it emerged as a recognizable unit under Chief Match-E-Be-Nash-She-Wish at the turn of the nineteenth century. At that time, the Tribe lived near Kalamazoo, Michigan, along the Kalamazoo River. The Tribe was party to several treaties with the United States, and it was adversely affected by several others, with the result that it lost all of its lands near Kalamazoo by the middle of the nineteenth century. It avoided being moved to reservations further west by taking asylum with a church mission in central Michigan, near the town of Bradley. Around the end of the nineteenth century, land in the church mission was distributed to individual members of the Tribe. This distribution was in accord, although not directly part of, broader federal policies of the time, which emphasized breaking up tribal holdings and distributing parcels of land to individuals. See Judith V. Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1, 10-12 (1995). Most of the land distributed to individual members of the Tribe was lost because of failure to pay property taxes, as was the ease for large portions of the land distributed under broader federal policies, id. at 12, but members of the Tribe continued to reside around the former church mission.

The Tribe, now numbering 277 members, secured federal acknowledgment of its existence in 1998, under the BIA’s formal recognition procedure. The Tribe and BIA plan for BIA to acquire land as a reservation for the Tribe, using the Secretary of the Interior’s authority under section 5 of the IRA to take land into trust for Indians, 25 U.S.C. § 465. They have identified a 147-acre tract of land (“the Bradley property”) that they find suitable for this purpose. The Bradley property is located in Wayland township (population 3,013), a largely rural area about twenty-five miles north of Kalamazoo and thirty miles south of Grand Rapids. Seeking to advance the economic well-being of its members, who suffer from unemployment rates approximately six times the average of their surrounding area, and to promote economic self-sufficiency, the Tribe plans to use the Bradley property to host a Class III gambling casino. The planned facility [27]*27would comprise approximately 99,000 square feet of gambling, with additional floor space devoted to restaurants, stores, and offices. The Tribe expects 8,500 visitors per day.

As BIA studied the Tribe’s proposal, it prepared an environmental assessment (“EA”) under the auspices of NEPA, 42 U.S.C. § 4321 et seq. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. The EA used the U.S. Department of Transportation (“DOT”) grading system to assess the severity of potential traffic delays: “Level Of Service A” means free passage, while “Level of Service F” means a driver can expect to wait eighty seconds or more before passing through an unsignaled intersection. The EA defined acceptable traffic delays to be “Level of Service C” or better. However, because Michigan does not grade intersections, the BIA concluded that approval by the Michigan Department of Transportation (“MDOT”) would also qualify an intersection’s traffic levels as acceptable.

Applying the DOT classification system, a study commissioned as part of the EA identified two local intersections where increased casino-related traffic would result in Level of Service F at certain times. These intersections sit at the junction of US-131, a limited access highway that runs north and south along the west edge of the Bradley property, and Michigan-179 (129th Avenue), a two-lane road that runs east and west along the south edge of the Bradley property. The study predicted that the casino would cause heavy traffic at the right turn from the northbound exit onto 129th Avenue (eastbound) and at the left turn from the southbound exit onto 129th Avenue (eastbound). Resulting delays would be particularly severe during afternoon rush hours.

To mitigate the traffic impact of the casino, the EA recommended construction of a new, dedicated right-turn lane for the northbound intersection and adding a four-way stop to the southbound intersection. It acknowledged the southbound left turn would still operate during peak periods at Level of Service F, so that a traffic light might be necessary. Although MDOT apparently will not commit to a traffic light based on predictions of traffic volume, it apparently would approve a dedicated right turn lane and a four-way stop.1

Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (“FON-SI”) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.

MichGO filed this lawsuit in June 2005, advancing four claims. The first alleged that the preparation of a FONSI rather than an environmental impact statement (“EIS”) violated NEPA. The second and third alleged violations of the Indian Gam[28]*28ing Regulatory Act (“IGRA”). The fourth alleged that the IRA is an unconstitutional delegation of authority to the Secretary of the Interior because there is no intelligible principle limiting its discretion on what land to acquire and hold in trust. The Tribe was allowed to intervene as a defendant. The district court granted summary judgment to the DOI on February 23, 2007. Mich. Gambling Opposition (Mi-chGO) v. Norton, 477 F.Supp.2d 1, 22 (D.D.C.2007). MichGO appeals and our review is de novo. Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C.Cir. 2006). However, in view of Citizens Exposing Truth About Casinos v. Kempthome,

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525 F.3d 23, 381 U.S. App. D.C. 91, 38 Envtl. L. Rep. (Envtl. Law Inst.) 20102, 2008 U.S. App. LEXIS 9629, 2008 WL 1932769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michigan-gambling-opposition-v-kempthorne-cadc-2008.