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HomeMy WebLinkAbout13.F.1. Consent Decree of BIA approval of the Trust Application of the Mdewakanton Sioux Community 13.F. J. CITY OF SHAKOPEE Memorandum TO: Mayor and City Council FROM: Mark McN eill, City Administrator SUBJECT: Consideration of Consent Decree regarding Bureau of Indian Affairs approval of the Trust Application of the Mdewakanton Sioux Community DATE: December 2, 2008 Introduction: The Council is asked to agree to the conditions contained in a consent decree that has been negotiated between attorneys for the Bureau of Indian Affairs and attorneys representing the City, and to authorize the City's attorneys to execute the consent decree. This relates to the City's challenge of a ruling ofthe BIA on the 2000 fee to trust application submitted by the Shakopee Mdewakanton Sioux Community (SMSC). Background: On June 7, 2007, then Assistant Secretary for Indian Affairs Carl Artman approved placing into Trust status some 752 acres ofland which were the subject of an application by the SMSC. Approximately 572 acres of the land is located within the City of Shakopee. On October 29,2007, the City brought an action which sought injunctive relief from the decision. The City alleged that the placing of this land into trust violated the 1934 Indian Reorganization Act, and also provisions of the National Environmental Policy Act (NEP A). After the City filed its action, the BIA held in abeyance the transfer of title, until the City's legal challenge was settled. Acting on the City's behalf, the law firm ofPerkins-Coie has met on several occasions with attorneys for the Department of the Interior, and have negotiated a tentative settlement of the case.. The City Council is now asked to agree to the conditions contained therein. Assuming both the City and the Department of the Interior (of which the Bureau of Indian Affairs is a division), assent to the Consent Decree, a judge would then issue a consent decree memorializing the agreement. AGREEMENT In summary, the City agrees that the 752 acres which had been the subject ofthe June 2007 decision will be placed into trust status. The Department ofthe Interior (and BIA) agrees that there will be a different process for future SMSC fee to trust applications which will include opportunities for input by and negotiations with the City. In addition, the City will be a direct participant in NEP A review of future fee to trust applications. Specifically, the major conditions are as follows: 1. The Midwest Regional Office (MRO) oftheBIA shall advise the City in writing within fifteen days ofthe MRO's receipt of any written request (whether complete or incomplete) submitted by the SMSC for Shakopee land to be taken into trust. 2. Within thirty days, the MRO will invite both the City and the SMSC to a meeting, at which discussions regarding concerns or potential sources of disagreement about the application maybe held. The SMSC is under no obligation to attend those meetings, but the MRO would be required to meet with the City. 3. Future SMSC trust land application requests shall cause the MRO to issue a request for information from the City regarding tax impacts, jurisdictional problems, and potential conflicts of land use. There will also be a concurrent issuance of notice of availability ofthe Environmental Assessment, or an Environmental Impact Statement (EIS) if either review is required under NEP A. 4. If the BIA determines that an EIS is required, the City shall be invited to participate as a "cooperating agency." The City shall provide any comments on the draft EA within thirty days of receipt. If a meeting is requested by the City, the MRO shall invite the SMSC to attend said meeting between the City and MRO. 5. In an EIS, the City shall identify issues it considers necessary to be addressed under NEP A. For both an EA and EIS, the BIA shall consider "cumulative impacts" of Trust land applications. Cumulative impacts are those that result not just from the specific request, but those that are the result of the current action in combination with previous actions and potential future actions. 6. The Department of the Interior will stipulate that the SMSC proposed use of the subject 752.41 acres did not include gaming, and that the decision did not analyze whether the 752.41 acres qualify for gaming under the Indian Gaming Regulatory Act. Finally, the City would dismiss its action, although it could be reinstituted in the future if the terms of the consent decree are not complied with by the BIA. The City also agrees to waive any claims to fees or cost associated. Relationship to Visioning: This supports Goal D: (Vibrant, Resilient, and Stable). Recommendation: In view of the concessions made by both sides, we see that this is a fair settlement of the issue. For that reason, I recommend that the City Council authorize the attorneys representing the City to agree to the conditions outlined in the Consent Decree. Action Required: If the Council concurs, it should, by motion, authorize the attorneys representing the City of Shakopee to enter into the Consent Decree between the City of Shakopee and the United States Department of the Interior, et.a!. settling the City's appeal of the June, 2007 decision to take land into Trust. }~~ Mark McNeill City Administrator MM:cn DRAFT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE CITY OF SHAKOPEE, MINNESOTA Plaintiff, v. CIVIL ACTION NO. 1:07-cv-01950-RMU THE UNITED STATES OF AMERICA, DIRK. KEMP THORNE, in his official capacity as Secretary ofthe Interior, U.S. Department ofthe Interior, and CARL 1. ARTMAN, in his official capacity as Assistant Secretary for Indian Affairs, U.S. Department of the Interior, Defendants. CONSENT DECREE """WHEREAS, on June 7, 2007, the Assistant Secretary for Indian Affairs issued a decision to acquire approximately 752.41 acres ofland in trust for the Shakopee Mdewakanton Sioux Community (SMSC). The Bureau oflndian Affairs (BIA) published notice of the trust acquisition in the Federal Register on September 27,2007. Of this land, approximately 572 acres are located within the City of Shakopee, Minnesota; WHEREAS, the City of Shakopee, Minnesota, commenced this action for declaratory' and injunctive relief on October 29, 2007, against the Department of the Interior, Secretary ofthe Department of the Interior, and the Assistant Secretary for Indian Affairs (collectively referred to as "Interior") challenging the June 7, 2007 decision; WHEREAS, the City alleges that Interior unlawfully acquired the land in trust in violation ofthe Indian Reorganization Act (IRA), 25 U.S.c. ~ 465, and its implementing regulations at 25 C.F .R. Part 151, the National Environmental Policy Act (NEP A), 42 U.S.C. ~~ 4311 - 4347, and its implementing regulations at 40 C.F.R. Part 1500, and the Administrative Procedure Act(AP A), 5 U.S.C. ~~ 701-706; WHEREAS, Interior has voluntarily stayed the transfer of title to the land at issue in this case pursuant to 25 C.F.R. ~ 151.12(b), pending the outcome ofthis district court litigation; WHEREAS, the City and Interior have agreed to a settlement of this case, without any admission offact or law, that they consider to be ajust, fair, adequate and equitable resolution of the claims raised in this case; WHEREAS, by entering into this Consent Decree, the City and Interior do. not waive or limit any claim or defense on any grounds, related to any agency action that may ensue from Interior's performance of its obligations as a result of this Consent Decree; WHEREAS, it is in the interest of the public, the City, Interior, and judicial economy to resolve the claims in this lawsuit without protracted litigation; THEREFORE, the City and Interior agree AND IT IS HEREBY ORDERED as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over the subj ect matter of this action, and over the Parties hereto, pursuant to the Indian Reorganization Act, 25 U.S.C. ~ 465, the National Environmental Policy Act, 42 U.S.C. ~~ 4321-4347, and the Administrative 2 Procedure Act, 5 U.S.C. ~~ 701-706, and 28 V.S.C. ~ 1331. Venue is proper in this Court pursuant to 28 U.S.C. ~ 1391 (e) in that a substantial part of the events or omissions giving rise to the claim occurred in this judicial district.1 AGREEMENT 2. The Midwest Regional Office (MRO) ofthe BIA shall advise the City in writing within 15 days ofMRO's receipt of any written requests submitted by the SMSC to have lands within the jurisdictional limits of the City taken into trust, including requests that are complete or incomplete, unless the acquisition is mandated by law. MRO may satisfy the notice requirement of this paragraph by providing the City, within 15 days of receipt of any SMSC trust request, a copy of a letter from MRO to the SMSC acknowledging receipt of the trust land acquisition request. 3. Upon MRO's receipt of a complete or incomplete SMSC trust land acquisition request as described in Paragraph 2 above, MRO shall, within 30 days, invite the SMSC and the City to a meeting to engage in direct and good faith discussions regarding any concerns or potential sources of disagreement regarding the request, and MRO shall meetwith the City regardless of whether SMSC agrees to attend. The City shall structure the meeting so that the Minnesota Open Meeting Law, Minn. Stat. S~ 13D.01-13D.07, public meeting requirement is not applicable or MRO shall not attend. 4. For future SMSC trust land acquisition requests as described in Paragraph 2 above, MRO shall issue a written request for information from the City pursuant to 25 C.F.R. ~ 151.1 O( e), regarding the impact of removing land from the tax rolls, and ~ 151.1 O( f), regarding jurisdictional problems and potential conflicts of land use, 1 All citations in this Consent Decree to laws and regulations shall refer to the 2008 version of such law or regulation. 3 concurrent with the issuance of a notice of availability of an Environmental Assessment (EA) pursuant to 43 C.F.R. S 46.305 or concurrent with the issuance of a notice of availability of a draft Environmental Impact Statement (ElS) pursuant to 43 C.F .R. S 46.435(a), should the BIA determine that an EA or EIS is required under NEP A. 5. IfBIA determines that an EIS is required or appropriate for use in analyzing future SMSC trust land acquisition requests as described in Paragraph 2 above, the City shall be invited to participate as a cooperating agency, pursuant to 40 C.F.R. s~ 1501.6, 1508.5, and 43 C.F.R. s~ 46.225, 46.230, and MRO shan work with the City to develop and adopt a memorandum or memoranda of understanding concerning input by the City pursuant to 43 C.P.R. S 46.225( d). If an EA will be used to analyze future SMSC trust land acquisition requests as described in Paragraph 2 above, MRO shall provide to the City a draft EA on the proposed trust acquisition. The City shall provide any comments on the draft EA within 30 days of the City's receipt of such document, and no extensions will be granted. If the City's comments include a request for a meeting, MRO shall invite the SMSC to attend a meeting with the City and MRO and shall meet within thirty (30) days ofMRO's receipt of such comments and meeting request, regardless of whether SMSC agrees to attend. The City shall structure the meeting so that the Minnesota Open Meeting Law, Minn. Stat. SS 13D.01-13D.07, public meeting requirement is not applicable or MRO shall not attend. 6. For any EA or EIS conducted as part of the review of future trust land acquisition requests as described in Paragraph 2 above, BIA shall conduct an analysis of cumulative effects, as defined under 40 C.F.R. S 1508.7, pursuant to NEP A. BIA shall identify reasonably foreseeable future actions through consultation with and documents 4 obtained from the SMSC, for example, zoning ordinances and tribal resolutions regarding development on SMSC lands. 7. During the scoping process for an EIS, the City shall identify issues that it considers necessary to address under NEP A. In the City's comments on a draft EA, the City shall identify issues that it believes have not adequately been addressed in the draft EA under NEP A. These issues may include, but are not limited to: (a) the cumulative effects analysis in general; (b) boundaries on the cumulative effects analysis for time and location; (c) any changes in the use of any land acquired in trust after the effective date of this agreement, including land identified in the June 7, 2007 decision, from the use described in the underlying trust request application, or in any NEP A documentation for such request, which description formed the basis of the acceptance of the land into trust; (d) the land-use, social, and economic impacts of the proposed acquisition; and (e) other land use issues that should be included in the cumulative effects analysis. BIA shall consider whether such issues should be evaluated in the context of cumulative impacts analysis or any other analysis required by NEP A for any proposed action described in Paragraph 2 above and shall include the City's comments in the administrative record of the proposed action. 8. Interior stipulates that the SMSC's proposed uses for the 752.41 acres were described in the June 7, 2007 Notice of Decision and did not include gaming, and the June 7, 2007 decision did not analyze whether the 752.41 acres qualify for gaming under the Indian Gaming Regulatory Act (IGRA), 25 V.S.C. SS 2701-2721. 5 9. Pursuant to Fed. R. Civ. P. 41 (a)(1), the City hereby dismisses with prejudice all claims and causes of action asserting that the land was taken into trust in violation of the IRA, NEP A, the AP A or any other law or regulation. 10. Nothing in this Consent Decree shall be interpreted to obligate Interior to pay funds in contravention ofthe Anti-Deficiency Act, 31 U.S.C. S 3141, or take any action in contravention of the IRA, NEPA, the AP A or any other law or regulation. 11. The City does not waive any right it may have to bring suit against Interior for any violations oflaw for any future trust land acquisitions on behalf of the SMSC or any of its members. 12. The City agrees to waive any claim to attorneys' fees and/or costs associated with this case. 13. The undersigned attorneys certify that they are fully authorized to enter into and execute the terms and conditions of this Consent Decree, and to legally bind such Party to its terms. By the signatures below, the Parties consent to entry of this Consent Decree. Presented and Agreed to by: Respectfully submitted, Benjamin S. Sharp - Bar # 211623 Donald C. Baur - Bar # 393621 Jena A. MacLean - Bar # 479910 PERKINS COlE LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005-2011 (202) 628-6600 6 Federal Counsel ENTERED this day of ,2008. Judge Ricardo M. Urbina United States District Court 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing CONSENT DECREE, in the matter of City of Shako pee, Minnesota v. The United States of America et al., Civil Action No. 1 :07-cv-01950-RMU, were served this _ day of November, 2008, via Certified Mail, to each of the following: Gina L. Allery Dirk Kempthorne Trial Attorney Secretary of the United States Environment & Natural Resources Department of the Interior Division 1849 C. Street, N.W., Room 6156 Indian Resources Section Washington, D.C. 20240 P.O. Box 44378 (202}208-7351 L'Enfant Plaza Station Washington, D.C. 20026-4378 George Skibine Acting Deputy Assistant Secretary for Policy and Economic Development United States Department of the Interior, 1849 C. Street, N.W., Room 4160 Washington, D.C. 20240 (202) 269-4464 Benjamin S. Sharp - Bar # 211623 Donald C. Baur - Bar # 393621 J ena A. MacLean - Bar # 479910 PERKINS COIE LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005-2011 (202) 628-660