Suit to Stop New Michigan Casino Can Forge Ahead

     (CN) – A Michigan man can sue the government and an American Indian tribe for trying to build a casino near his property, the D.C. Circuit ruled.




     David Patchak argued that he deserves to be protected from the negative effects of the proposed Indian gambling facility that would occupy 147 acres in his rural farming community in Wayland Township, Mich., referred to as the Bradley Tract.
     His 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. Furthermore, Patchak alleged, the casino would destroy the area’s rural character, diminish his property value and sully his enjoyment of 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.
     An anti-gambling entity MichGO had challenged the maneuver earlier, but the complaint was dismissed, and the dismissal upheld, by the D.C. courts.
     Patchak filed suit separately under the Administrative Procedures Act, claiming that Kenneth Salazar, secretary of the Department of the Interior, violated the National Environmental Policy Act and Indian Gaming Regulatory Act by taking the land into trust because the Gun Lake Band was not under federal jurisdiction during the Indian Reorganization Act of 1934.
     A federal judge agreed that Salazar’s 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 Salazar’s authority since his Patchak’s interests “actively run contrary” to the Indian Reorganization Act. It also noted that by taking the land into trust, the government may have preempted Patchak’s claims under Quiet Title.
     On Friday, however, the D.C. circuit rejected the lower court’s reasoning.
     “Patchak did not have to show that the Indian Reorganization Act was meant to benefit those in his situation,” Judge A. Raymond Randolph wrote for the court’s three-judge panel.
     “[Salazar] may act only on behalf of tribes that were under federal jurisdiction at the time of the IRA’s enactment in 1934,” the ruling continues. “When that limitation blocks Indian gaming, as Patchak claims it should have in this case, the interests of those in the surrounding community – or at least those who would suffer from living near a gambling operation – are arguably protected. And because of their interests, they are proper parties to enforce the IRA’s restrictions.”
     The judge added 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,” 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.
     The government argued that the suit, in such case, was barred by the Quiet Title Act of 1972, which Randolph noted “reflects a congressional policy of honoring the federal government’s solemn obligations to Indians with respect to title disputes over Indian trust land.”
     But Randolph found that the act does not apply since Patchak did not claim that he owned the land.

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