Casino Challenger Has a Case, High Court Finds

(CN) - A Michigan man can sue the government and an American Indian tribe over their plans to build a casino near his property, the Supreme Court ruled Monday.

David Patchak filed suit over the negative effects of a proposed casino that would occupy 147 acres of his rural farming community in Wayland Township, Mich., referred to as the Bradley Tract.

An anti-gambling entity MichGO had challenged the maneuver earlier, but the complaint was dismissed, and the dismissal was upheld in 2008.

Patchak's complaint notes that the casino would bring an estimated 3.1 million visitors yearly, divert medical resources from residents, increase crime and contribute to air, noise and water pollution. Patchak further claims that the casino would destroy the area's rural character, diminish property values and sully the local scenery.

The government had taken the land into trust for a band of Pottawatomi, known as the Match-E-Be-Nash-She-Wish or Gun Lake Band, which owned the property and wanted to build a casino there.

Since the Gun Lake Band was not under federal jurisdiction during the Indian Reorganization Act of 1934, however, Patchak says the government's actions would violate the National Environmental Policy Act and Indian Gaming Regulatory Act.

A federal judge agreed that trust authority is limited to tribes under jurisdiction in 1934, but dismissed Patchak's suit on different grounds. The court noted that Patchak lacks prudential standing to challenge the authority of Department of the Interior Secretary Kenneth Salazar since his Patchak's interests "actively run contrary" to the Indian Reorganization Act. It also noted that the government may have pre-empted Patchak's claims under Quiet Title by taking the land into trust.

But in January 2011, the D.C. Circuit found that Patchak had a triable claim under the Administrative Procedures Act (APA).

The three-judge panel noted that "it would be very strange to deny Patchak standing in this case."

"His stake in opposing the Band's casino is intense and obvious," Judge A. Raymond Randolph wrote.

The zone-of-interests test of the IRA is supposed to "weed out litigants who lack a sufficient interest in the controversy."

"Patchak is surely not in that category," the ruling states.

Since Patchak did not sue for monetary damages and filed a claim relating to the government's actions "under color of legal authority," the Administrative Procedures Act states that the government does not have immunity from the suit.

Randolph also found that the Quiet Title Act of 1972 (QTA) cannot bar the suit since Patchak did not claim that he owned the land. This law "reflects a congressional policy of honoring the federal government's solemn obligations to Indians with respect to title disputes over Indian trust land," according to the court.

The Supreme Court affirmed Monday, having consolidated two related petitions over the case in December.

Judge Elena Kagan authored the court's lead opinion, using a hypothetical situation in which Patchak brought claims of environmental harm under the APA, without objecting to the secretary's title.

"The QTA could not bar that suit because even though involving Indian lands, it asserts a grievance altogether different from the kind the statute concerns," Kagan wrote. "Justice Scalia, in a former life as assistant attorney general, made this precise point in a letter to Congress about the APA's waiver of immunity (which we hasten to add, given the author, we use not as legislative history, but only for its persuasive force). When a statute 'is not addressed to the type of grievance which the plain­tiff seeks to assert,' then the statute cannot prevent an APA suit.

"The QTA's 'Indian lands' clause does not render the govern­ment immune because the QTA addresses a kind of griev­ance different from the one Patchak advances," Kagan added.

In a solitary dissent, Judge Sonia Sotomayor accused her colleagues of placing "an end-run around these vital limitations on the government's waiver of sovereign immunity."

"After today, any person may sue under the Administrative Procedure Act (APA) to divest the federal government of title to and possession of land held in trust for Indian tribes - relief expressly forbidden by the QTA - so long as the complaint does not assert a personal inter­est in the land," the 12-page opinion states. "That outcome cannot be squared with the APA's express admonition that it confers no 'authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.' The court's holding not only creates perverse incentives for private litigants, but also exposes the government's ownership of land to costly and pro­longed challenges."

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