UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 MORGAN, LEWIS & Thomas F. Gede (SBN ) tom.gede@morganlewis.com Ella Foley Gannon (SBN ) ella.gannon@morganlewis.com Colin C. West (SBN 0) colin.west@morganlewis.com One Market, Spear Street Tower San Francisco, CA 0- Tel: Attorneys for Plaintiff SANTA YNEZ VALLEY CONCERNED CITIZENS SANTA YNEZ VALLEY CONCERNED CITIZENS, GREGORY SIMON, GERALDINE B. SHEPHERD, and BILL KRAUCH, vs. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiffs, THE DEPARTMENT OF THE INTERIOR an agency of the United States of America; RYAN ZINKE, in his official capacity as Secretary of the Interior; JOHN TAHSUDA, in his official capacity as Acting Assistant Secretary Indian Affairs; THE BUREAU OF INDIAN AFFAIRS, a division of the United States Department of the Interior; AMY DUTSCHKE, in her official capacity as Director, Pacific Region, Bureau of Indian Affairs; and DOES through 00, Plaintiffs. Case No. PLAINTIFFS SANTA YNEZ VALLEY CONCERNED CITIZENS, ET AL., COMPLAINT FOR:. VIOLATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT. VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT. DECLARATORY AND INJUNCTIVE RELIEF DB/. COMPLAINT

2 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 MORGAN, LEWIS & The Santa Ynez Valley Concerned Citizens ( SYVCC ), Gregory Simon, Geraldine B. Shepherd, and Bill Krauch (collectively, Plaintiffs ), allege as follows: INTRODUCTION. When land is taken into trust for an Indian Tribe, the land is generally no longer subject to state and local regulations designed to protect the environment and ensure that the development of the site is done in a manner consistent with the policies and goals established for the local environs and does not unreasonably interfere with use of neighboring properties.. Recognizing the significant impact that such a decision can have, the Department of Interior adopted regulations which include factors that must be taken into consideration when determining whether to grant a tribe s fee to trust application. These factors include the potential environmental impacts associated with granting the application, the tribe s demonstrated need for the land and proposed uses. Further, when the land is not located on a reservation and the proposed uses include commercial enterprises, the tribe must submit a business plan describing the anticipated benefits of the proposed businesses. Failure to follow these procedures results in an arbitrary and capricious decision that potentially, if allowed to stand, will permanently impact the surrounding community.. The regulations also include a process for aggrieved members of the public to seek review of the fee-to-trust decision and this process varies depending on the administrative level at which the decision is made. Failure to follow the appellate procedural processes renders a decision unlawful.. The decision to take over,00 acres of prime agricultural land and pristine open space in the County of Santa Barbara into trust for the Santa Ynez Band of Chumash Mission Indian Tribe ( Chumash Tribe ) was made without conducting meaningful review of the myriad of significant environmental impacts that are likely to result from the Tribe s essentially unregulated development and DB/. COMPLAINT

3 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 use of the property. The decision also purports to transfer portions of seven public roadways that cut through the parcels of land, including a portion of State Hwy. either easements belonging to others or to the County of Santa Barbara without appropriate analysis, consideration or review under the National Environmental Policy Act ( NEPA ), U.S.C. et seq. This action is brought to ensure that, for land taken in trust for the Tribe, the Bureau of Indian Affairs first properly evaluates the significant environmental impacts that may result from this action and follows all the regulatory procedures required. JURISDICTION. This Court has jurisdiction over this case pursuant to U.S.C. 0 et seq., U.S.C., and U.S.C. 0 and 0. Plaintiffs seek declaratory, injunctive, and further necessary relief against each and all of the Defendants as allowed by these and other applicable statutes.. Plaintiffs seek review of the validity of former Principal Deputy Assistant Secretary of Interior for Indian Affairs Lawrence Roberts decision, dated January, 0, affirming Defendant Amy Dutschke s Notice of Decision, dated December, 0. In his decision, former Principal Deputy Assistant Secretary Roberts contends that his decision is final in accordance with C.F.R..0(c) and [that] no further administrative review is necessary.. Alternatively, if this Court determines that Roberts had proper authority to issue a final decision in accordance with C.F.R..0(c), Plaintiffs seek judicial review of two final agency decisions by Defendants: () the Bureau of Indian Affairs finding it adequately conducted an environmental review for a Finding of No Significant Impact ( FONSI ), purportedly under NEPA and () the Department of Interior s decision to take into trust, acres in the County of Santa Barbara, California for the Chumash Tribe, purportedly under the Indian Reorganization Act ( IRA ), U.S.C. 0. COMPLAINT DB/.

4 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 VENUE. This action involves a,-acre property located at the heart of the Santa Ynez Valley in California an area known as Camp.. Venue is proper in the Central District of California under U.S.C. (e)()(b) because Defendants are officers or employees of a United States agency and the property giving rise to Plaintiffs claim is situated in the Central District of California. PLAINTIFFS 0. SYVCC is a coalition of more than,000 members made up of Santa Ynez Valley residents, ranchers, businesspeople, conservationists, as well as residents of other parts of Santa Barbara County, who represent and articulate local stakeholders responses to and concerns with the land use development plans of the Chumash Tribe. Specifically, SYVCC works to ensure that land in the Santa Ynez Valley is developed consistent with all land use laws and environmental regulations.. Gregory Simon is President and Chairman of SYVCC and a landowner with property and a home about 0,000 feet from the land taken in trust that is the subject of this complaint.. Geraldine B. Shepherd is a board member of SYVCC and a homeowner on property that she owns directly adjacent to the land taken in trust and is also the owner of adjudicated roadway easements on the land taken in trust.. Bill Krauch is Chair of the Santa Ynez Valley Coalition and a board member of SYVCC, and he owns property with his primary residence adjacent to the land taken in trust. DEFENDANTS. Defendant Department of Interior ( Department ) is an agency of the United States and manages federal land and the administration of programs relating to Native American Indians, including the fee-to-trust process for Indian tribes. In COMPLAINT DB/.

5 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 that capacity, the Department oversees Defendant Bureau of Indian Affairs ( BIA ) and the taking of Camp into trust for Indian tribes.. Defendant Ryan Zinke is the Secretary of the Department and is named herein in his official capacity. As Secretary, Defendant Zinke has ultimate authority, supervision, and control over Defendants Tahsuda and Dutschke and their subordinates within Defendant BIA, an agency within the Department.. Defendant John Tahsuda is the Acting Assistant Secretary Indian Affairs of the Department and is named herein in his official capacity. As Acting Assistant Secretary Indian Affairs, Defendant Tahsuda exercises supervisory authority, supervision, and control over Defendant BIA, including Defendant Dutschke and her subordinates. In that capacity, Defendant Tahsuda is the successor to former Principal Deputy Assistant Secretary Roberts, who approved Defendant BIA s taking of Camp into trust for the Chumash Tribe.. Defendant BIA is within the Department and is an agency of the United States acting as trustee of the welfare of the federally recognized tribes of Native Americans. In that capacity, Defendant BIA has taken Camp into trust for the Chumash Tribe.. Defendant Amy Dutschke is the Director of the Pacific Regional Office for Defendant BIA and is named herein in her official capacity. As Regional Director of the Pacific Regional Office, Defendant Dutschke exercises direct supervisory authority and control over the BIA s Pacific Region, which includes the state of California. In that capacity, Defendant Dutschke has issued a Notice of Decision to take title of Camp into trust for the Chumash Tribe. The Chumash Tribe s reservation lands and Camp are located within the jurisdiction of the Pacific Region.. Defendants Zinke, Tahsuda, and Dutschke are officers or employees of the United States and have direct or delegated statutory duties in carrying out the COMPLAINT DB/.

6 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 provisions of the IRA, including taking land into trust for the benefit of Native American tribes. 0. At all relevant times, DOES through 00 were and are agents, employees, employers, representatives, alter egos, subsidiaries, and/or partners of one or more of the other Defendants, and were, in performing the acts complained of herein, acting within the scope of such agency, employment, partnership, authority, and/or are in some other way responsible for the acts of one or more of the other Defendants. Plaintiffs will amend or seek leave of this Court to amend this Complaint when the names of DOES through 00 are ascertained. FACTUAL ALLEGATIONS Chumash Tribe Reservation. The Chumash Tribe has tribal members and,00 lineal descendants. The Chumash Tribe s reservation land is acres located on the south side of highways and in the Santa Ynez Valley in Santa Barbara County, California ( Reservation ). Of the -acre Reservation, at least acres currently have residential capacity and at least acres have economic development capacity.. The Chumash Tribe also has approximately. additional acres of land in the Santa Ynez Valley for which Defendant Department has issued a Notice of Decision stating its intent to take the land into trust.. Moreover, in June 0, the Chumash Tribe purchased approximately 0 acres of land that is approximately 0. miles from its Reservation. Camp. In 00, the Chumash Tribe purchased,. acres of land on five contiguous parcels in the Santa Ynez Valley: (a) Parcel APNs --0 and -0-00; (b) Parcel APN -0-00; (c) Parcel APNs -0-0 and -0-00; (d) Parcel APNs and -0-00; and Parcel APN COMPLAINT DB/.

7 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0. There are seven public roadways that cut through the five contiguous parcels of land: Baseline Ave., Torrance Ave., Mora Ave., San Marcos Ave., Armour Ranch Rd., Riordan Ave., and State Hwy.. Together, these public roadways comprise. acres of land.. Camp in its entirety totals, acres (,. acres plus. acres of public roadways) and is located in the heart of the Santa Ynez Valley in Santa Barbara County, California. It is directly off of State Highway between Baseline Avenue and Armour Ranch Road. Camp is zoned exclusively for agriculture. The vast majority of Camp is undeveloped and characterized by rolling green pastureland.. Camp is approximately. miles from the Chumash Tribe s Reservation and shares no boundaries with the Reservation.. Camp is currently subject to a controlling Williamson Act Contract, which requires that the land be preserved for agricultural use or open space until December, 0. Consistent with this operative Williamson Act Contract, the only development currently on Camp is a -acre vineyard, a horse stable, and a single ranch house. The Chumash Tribe s Tribal Consolidation And Acquisition Plan. In March 0, the Chumash Tribe submitted a Tribal Consolidation and Acquisition Plan ( TCA ) to Defendant BIA. In its TCA, the Chumash Tribe requested that Defendant Department take into trust,00 acres of land, including Camp, in the Santa Ynez Valley. 0. The Chumash Tribe claimed that the,00 acres were needed to increase the tribal land base and for housing, economic development, and governmental purposes.. The majority of the,00 acres included in the Chumash Tribe s TCA is owned in fee by non-indian owners and has never been titled to any Indian tribe or part of any reservation boundary. COMPLAINT DB/.

8 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0. The Chumash Tribe did not provide evidence supporting or justifying its need for,00 acres of land. Moreover, the TCA did not include analysis of the environmental impacts of the proposed trust acquisition.. On June, 0, Defendant Dutschke approved the TCA without adequate legal or factual basis.. Accordingly, several parties, including the County of Santa Barbara, appealed the June 0 approval to the Interior Board of Indian Appeals ( IBIA ).. On October, 0, the Chumash Tribe withdrew its TCA. Subsequently, on October, 0, the IBIA dismissed the TCA appeals as moot and vacated Defendant Dutschke s June, 0 approval. The Chumash Tribe s Fee-To-Trust Application for Camp. On June, 0, after Defendant Dutschke approved the TCA and before the IBIA vacated the TCA, the Chumash Tribe submitted an initial fee-totrust application to Defendant BIA requesting that Camp be taken into trust. This initial fee-to-trust application was contingent on there being an approved TCA and on that basis, Camp being contiguous to the Chumash Tribe s Reservation.. In July 0, the Chumash Tribe supplemented its initial fee-to-trust application.. In August 0, Defendant BIA released an Environmental Assessment ( EA ) for the initial fee-to-trust application for public review and comment. Public comments on the Chumash Tribe s initial fee-to-trust application were submitted by various parties, including Plaintiffs, on October, 0, and again on October, 0.. In November 0, after the IBIA had vacated the TCA and dismissed the TCA appeals, the Chumash Tribe submitted an amended fee-to-trust application, purportedly pursuant to C.F.R. Part, to Defendant BIA. The application requested that Defendant BIA accept all of Camp into trust on behalf of the Chumash Tribe. Consistent with the Chumash Tribe s initial application, the COMPLAINT DB/.

9 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 amended application stated that the purpose of the application was for tribal housing and supporting infrastructure on a portion of the property, economic pursuits, long range planning, and land-banking. The amended application removed references to the withdrawn and vacated TCA. 0. The Chumash Tribe s fee-to-trust application did not expressly request that Defendant BIA include the. acres of public roadways that cross Camp in the trust acquisition.. Along with the application, the Chumash Tribe submitted a short-term plan for the construction of residential lots and related infrastructure with the remainder of the land (approximately acres) being kept as open space reserved for the undefined purpose of land-banking. The Chumash Tribe s plans offered two alternatives for the development of the Property: a. Alternative A consisted of converting the,-acre property into five-acre residential lots covering acres, with supporting infrastructure, such as new water, sewer, and power lines, wastewater treatment facility, and new roads. Under Alternative A, Camp would also include 0 acres of vineyards, 00 acres of open/recreational space, acres of riparian corridor, acres of oak woodland conservation, and acres of Special Purpose Zone for utilities. b. Alternative B, which the Chumash Tribe ultimately selected, consisted of converting the property into one-acre residential lots and supporting infrastructure, covering acres, with acres of open/recreational space, the same spaces for vineyard, riparian corridor and oak woodlands as in Alternative A, and 0 acres for tribal facilities. These 0 acres would be subject to the construction of an over-,000 square foot tribal facility complete with a 0-car parking lot capable of accommodating up to 00 events per year. With respect to the open space under Alternative B, the Chumash Tribe states that the acres are necessary for the undefined purpose of land-banking. COMPLAINT DB/.

10 Case :-cv-0 Document Filed 0// Page 0 of 0 Page ID #: On November, 0, Defendant BIA issued a Notice of Land Acquisition Application for the Chumash Tribe s amended fee-to-trust application seeking comments from state and local governments.. On December, 0, Plaintiffs timely submitted comments.. In May 0, Defendant BIA released a Final EA for public review and comment.. On July, 0, Plaintiffs timely submitted comments to Defendant BIA regarding the deficiencies of the Final EA. Finding of No Significant Impact and Final EA. On October, 0, Defendant Dutschke, acting in her official capacity, issued a FONSI based on the Final EA for the Chumash Tribe s proposed trust acquisition. The FONSI concluded that based on the administrative record, the Final EA, and comments received during the public review period, the Chumash Tribe s proposed trust acquisition of,. acres of land plus. acres of public roadways for development under Alternatives A or B would have no significant impacts on the environment.. The Chumash Tribe s stated purpose of taking, acres of largely agricultural land into trust is for urban development, which would include development of new residences, a new wastewater treatment plant, new roads, new utilities, and a large tribal facility that will hold events of unknown description (but which can accommodate at least 0 carloads of people) an average of twice per week.. The trust acquisition and proposed development would significantly impact the environment in the following ways: a. Implicate unique geographic considerations, including conversion of agricultural farmland to urban development, resulting in the loss of grazing operations and affecting compatibility with adjacent agricultural properties; COMPLAINT DB/.

11 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 b. Threaten land use and regulatory requirements imposed for the protection of the environment and Santa Ynez Valley community, including the County of Santa Barbara s Comprehensive Plan, Uniform Rules, agricultural zoning, Agricultural Buffer and Grading Ordinances, and Outdoor Lighting Regulations for the Santa Ynez Valley Community Plan Area; and the Santa Ynez Valley Community Plan. c. Impact public health and safety concerns, including land, water, and living resources, including the increased risk of pests, insects, diseases, and weeds to neighboring properties, groundwater quality and resources, wastewater, air quality, and noise pollution; d. Threaten endangered species habitats and other unique habitats; and e. Impact socioeconomic conditions, including public service needs for fire, security, emergency, and medical services; waste disposal; and schools, parks, and recreation.. Based on these significant environmental impacts associated with the Chumash Tribe s proposed development on Camp, Defendants were required to prepare an Environmental Impact Statement ( EIS ) pursuant to U.S.C. and not just an EA. 0. Notwithstanding the obvious need for an EIS, in the Final EA, Defendants BIA and Dutschke failed to take the required hard look at the environmental impacts of the Chumash Tribe s proposed development.. For example, Defendants BIA and Dutschke failed to consider the high likelihood of future development by the Chumash Tribe on Camp. The Chumash Tribe s stated purpose for the trust acquisition is to provide housing for current tribal members,,00 lineal descendants, and all anticipated growth. However, the Chumash Tribe s short-term plan for construction only includes residential lots, leaving acres of Camp as open space. In approving the Chumash 0 COMPLAINT DB/.

12 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 Tribe s fee-to-trust application, Defendants BIA and Dutschke failed to scrutinize the clear disconnect between the Chumash Tribe s stated need for, acres and its proposed construction plans. Instead, Defendants BIA and Dutshke analyzed only the potential environmental impacts of constructing homes and did not consider the likelihood, or indeed the necessity, of additional homes being built on Camp.. Additionally, in the Final EA, Defendants BIA and Dutshke failed to utilize an appropriate baseline for the environmental setting at the time of the actual proposed development of Camp. Because of the operative Williamson Act Contract, any proposed development by the Chumash Tribe may not occur until January, 0. The Chumash Tribe anticipates that development of Camp will continue through approximately 0. Rather than evaluate the proposed project s environmental impacts against the baseline environmental conditions as they would exist at the time of and throughout construction as is required, Defendants BIA and Dutshke used 0 environmental considerations as the baseline to assess the proposed project s impacts. Defendants BIA and Dutshke did not even attempt to forecast environmental conditions as they may exist in January 0. Resources such as water, waste disposal, fire, police, other emergency services, schools, parks, and recreation may be significantly scarcer by 0 a consideration not made by Defendants BIA and Dutshke in issuing the Final EA.. Moreover, Defendants BIA and Dutshke failed to contemplate other alternatives to the proposed development even though the Chumash Tribe s application includes no plans to develop acres, or %, of Camp, leaving such acreage as open-space for land-banking, which the Chumash Tribe does not define. Although taking fewer acres into trust would satisfy the Chumash Tribe s stated need and plans for the land, Defendants BIA and Dutschke did not consider taking fewer acres into trust. Rather, Defendants BIA and Dutschke only considered three options, two of which contemplated an acquisition of all, COMPLAINT DB/.

13 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 acres of Camp, and one that was merely a token no action alternative that was not adequately analyzed. Defendants Dutshke s Notice of Decision and Former Principal Deputy Assistant Secretary Roberts Denial of All Appeals of the Notice of Decision.. On December, 0, despite the lack of an EIS, deficiencies of the Final EA, and hundreds of letters submitted by members of the public to Defendant BIA identifying the many issues with Defendant BIA s FONSI and Final EA, Defendant Dutschke, acting in her official capacity, issued a Notice of Decision to take title of Camp into trust for the benefit of the Chumash Tribe, purportedly in accordance with the IRA, U.S.C... In approving and affirming the trust acquisition, Defendants failed to satisfy the following criteria contained in C.F.R. Part : a. Defendants did not consider a mandated business plan. Because the Chumash Tribe specified in its fee-to-trust application its intent to use Camp, in part, for business purposes, it was required to, but did not, submit a plan to Defendant BIA that specified the anticipated economic benefits associated with such purposes. b. Defendants failed to consider the jurisdictional impacts and resolve title inconsistencies with respect to the. acres of public roadways included in the Chumash Tribe s fee-to-trust application. Before Defendant BIA issued the Final EA, members of the public brought this issue to BIA s attention. In response, BIA stated that the Tribe conducted a review of the title and concluded the above-listed ROWs [i.e., the roads] are easements not dedications; therefore, the Tribe is the owner in fee of the ROWs and the areas can be taken into trust. To support this statement, Defendant BIA referred to a letter from L&P Consultants, dated April 0, 0 the day before Defendant BIA issued the Final EA. This letter was not attached to the Final EA, nor is it in the Administrative Record. Moreover, it is contradicted by the documents describing the property to COMPLAINT DB/.

14 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 be taken into trust in the Chumash own fee-to-trust application, which were also prepared by L&C Consultants. Further, a Title Commitment dated June, 0 and an Amended Title Commitment dated November, 0 indicate that these roads may be owned in fee by the County, maybe not. c. Defendants took no issue with the fact that the Chumash Tribe s fee-to-trust application offers no purpose or plans for construction of the acres of open-space other than for the ambiguous purpose of land-banking. d. Defendants failed to consider whether Defendant BIA will be able to handle the additional responsibilities associated with the Chumash Tribe s trust acquisition, including the additional need for public services such as fire, security, and medical services; waste disposal; and school, parks, and recreation. e. Defendants did not adequately address the off-reservation location of Camp or acknowledge Defendants obligation to give greater scrutiny to the Chumash Tribe s fee-to-trust application due to the location of Camp. Plaintiffs' Timely Appeal. On January 0, 0, Plaintiffs timely appealed the Notice of Decision to the IBIA. On February, 0, the Assistant Secretary Indian Affairs Kevin K. Washburn assumed jurisdiction in Plaintiffs appeal from the IBIA.. On January, 0, former Principal Deputy Assistant Secretary Roberts, in his capacity as Principal Deputy Assistant Secretary Indian Affairs for Defendant Department, denied Plaintiffs appeal, affirmed the Notice of Decision, and found the Final EA and FONSI appropriate and adequate for the Chumash Tribe s proposed acquisition. In his decision, former Principal Deputy Assistant Secretary Roberts contends that his decision is final in accordance with C.F.R..0(c) and no further administrative review is necessary.. Plaintiffs have exhausted all of their administrative appeals, having appeared before the Assistant Secretary and having fully briefed the issues. COMPLAINT DB/.

15 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0. SYVCC members own properties that are either contiguous or extremely close to Camp. For example, Plaintiff Gregory Simon, President and Chairman of the SYVCC, is a resident of the Santa Ynez Valley and his property is approximately 0,000 feet from and approximately 00 feet higher than the Property. The Chumash Tribe s fee-to-trust acquisition will directly affect Mr. Simon s enjoyment and use of his property. The only development currently on the Property is a -acre vineyard, a horse stable, and a single ranch house. Prior to the fee-to-trust acquisition, strict zoning regulations limited development of the Property. Residences and other structures were only allowed by special permit from the County of Santa Barbara. The Chumash Tribe s proposed development will result in pollution from the contemplated housing, utilities, and wastewater facility affecting the views from and the air quality surrounding Mr. Simon s property. In addition, any development of the acres of open space would detrimentally affect Mr. Simon s visual and physical enjoyment and use of his property. Further, the Chumash Tribe s acquisition of the. miles of public roadways would affect Mr. Simon s use of his property as he regularly uses such roadways. 0. Other SYVCC members, including Plaintiff Geraldine B. Shepherd, will suffer harm as the result of the fee-to-trust acquisition. Ms. Shepherd owns a home on property directly adjacent to the land-in-trust acquisition and is the owner of adjudicated roadway easements that were within the land acquired by the tribe and taken in trust. For the same reasons as those articulated for Plaintiff Simon, Plaintiff Shepherd will be directly harmed by the acquisition and use of the land taken in trust.. Similarly, Plaintiff Bill Krauch owns property and his primary residence directly adjacent to the land taken in trust and will suffer direct harm from the acquisition similar to that of the other Plaintiffs and members of SYVCC. COMPLAINT DB/.

16 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 New Facts Relevant to the Chumash Tribe s Camp Trust Acquisition.. In June 0, after Plaintiffs filed their January 0 appeal to the IBIA, the Chumash Tribe purchased approximately 0 acres of land in the Santa Ynez Valley. The property is approximately 0. miles from the Chumash Tribe s Reservation.. The 0-acre property is adjoined by parcels of land zoned for residential, commercial, and agricultural uses.. The 0-acre property would provide sufficient land to build homes and a 0-acre tribal facility, with land remaining, which was the preferred development alternative identified in Defendant Dutschke s FONSI. Therefore, the 0-acre property is a viable alternative to taking Camp into trust.. Taking into trust a 0-acre property that is closer to the Chumash Tribe s Reservation and surrounded by property zoned for residential and commercial uses could have significantly less impact to several environmental resources. The availability of this alternative is a significant new development that is substantially relevant to the trust acquisition of Camp and requires immediate supplemental environmental review under NEPA.. On March, 0, after Plaintiffs January 0 appeal to the IBIA, but before former Principal Deputy Assistant Secretary Roberts January 0 decision, the Chumash Tribe provided a map, entitled Proposed Tribal Land Use, to the County of Santa Barbara. The map details the Chumash Tribe s plans for increased tribal facility, residential, and commercial development on Camp and the 0 acre neighboring property the Chumash Tribe has purchased. It also indicates that the Chumash Tribe intends to seek trust status for all of the land that it owns in the area, including the 0-acre property. COMPLAINT DB/.

17 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 FIRST CLAIM FOR RELIEF (Violation of U.S.C. 0(c) Against All Defendants). Plaintiffs reallege and incorporate by reference each and every allegation set forth in Paragraphs through above as though fully set forth here.. Defendants actions taking Camp into trust after former Principal Deputy Assistant Secretary Roberts issuance of his January, 0 decision affirming Defendant Dutchke s Notice of Decision are invalid because former Principal Deputy Assistant Secretary Roberts issuance of his decision was ultra vires and thus, void.. Pursuant to C.F.R..0(c), authority cited by former Principal Deputy Assistant Secretary Roberts in his decision, [i]f the decision is signed by the Assistant Secretary Indian Affairs, it shall be final for the Department and effective immediately.... Except as otherwise provided in.0(g), if the decision is signed by a Deputy to the Assistant Secretary Indian Affairs, it may be appealed to the Board of Indian Appeals... (emphasis added). 0. Former Principal Deputy Assistant Secretary Roberts signed his January, 0 decision in his capacity as Principal Deputy Assistant Secretary Indian Affairs. In that capacity, per C.F.R..0(c), former Principal Deputy Assistant Secretary Roberts, then lacked authority to issue a final decision affirming Defendant Dutschke s Notice of Decision.. Since former Principal Deputy Assistant Secretary Roberts lacked authority to issue a final decision, Plaintiffs appeal of Defendant Dutschke s Notice of Decision is not decided and Defendants transfer of title of Camp into trust is premature and must be voided.. However, if this Court determines that former Principal Deputy Assistant Secretary Roberts had authority to issue a final decision, then Plaintiffs allege the following causes of action on the merits. COMPLAINT DB/.

18 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 SECOND CLAIM FOR RELIEF (Violation of U.S.C. et seq. Against All Defendants). Plaintiffs reallege and incorporate by reference each and every allegation set forth in Paragraphs through above as though fully set forth here.. Defendants approval of the Final EA, issuance of a FONSI and consideration of the Chumash Tribe s fee-to-trust application violated NEPA, U.S.C. et seq. and its implementing federal regulations.. NEPA and its implementing regulations mandate that prior to taking land into trust, Defendants must broadly consider the direct, indirect, and cumulative environmental effects of any project to assess whether a project s environmental impact, as a whole, is significant. USC (an EIS is required for all major federal actions); 0 C.F.R. 0. (defining major federal action as an action with major effects ); 0 C.F.R. 0. ( effects can be either direct or indirect. ). Indirect effects are those caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. 0 C.F.R. 0.(b).. Under NEPA, Defendants are required to prepare an EIS when a proposed federal action will significantly affect the quality of the environment or raises substantial questions regarding the environmental effect of the action. U.S.C. ()(C); 0 C.F.R To determine whether an EIS is required, Defendants may first prepare a less extensive EA. 0 C.F.R If the EA determines that the proposed action will significantly affect the environment, Defendants must prepare an EIS. W. Watersheds Project v. Abbey, F.d 0, 00 (th Cir. 0). 0. On the other hand, if the EA finds no significant environment impact, Defendants may issue a FONSI, accompanied by a convincing statement of COMPLAINT DB/.

19 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 reasons to explain why a project s impacts are insignificant, and then proceed with the acquisition without further study. Sierra Club v. Bosworth, 0 F.d 0, 0 (th Cir. 00).. Defendants violated NEPA by failing to take the required hard look at the environmental consequences of the Chumash Tribe s proposed trust acquisition of over,0 acres of land. See 0 C.F.R. 00.(b); Sierra Club v. Bosworth, 0 F.d 0, 0 (th Cir. 00).. Defendants failed to comply with NEPA by not preparing an EIS in violation of U.S.C. ()(C) and 0 C.F.R. 0. because the Chumash Tribe s trust acquisition will significantly affect the quality of the environment or, at the very least, raises substantial questions regarding the environmental effect of the acquisition.. Defendants violated NEPA by approving and using the deficient Final EA to issue a FONSI. U.S.C. et seq.; 0 C.F.R. Part 00. Future Development on Camp. Although the Chumash Tribe s plans only considers the construction and development of residential lots and related infrastructure on the, acres it seeks to take into trust, the Chumash Tribe has continually referred to its need to provide housing for tribal members,,00 lineal descendants, and anticipated growth as justification for the trust acquisition. Defendants violated NEPA by failing to scrutinize the clear disconnect between the Chumash Tribe s plans and its stated need. Instead, Defendants analyzed only the potential environmental impacts of constructing homes and did not consider the likelihood, or indeed the necessity, of additional homes being built on Camp.. The approved Final EA does not account for the probable and more likely, necessary, future development on the open space outside of the homes and related infrastructure. COMPLAINT DB/.

20 Case :-cv-0 Document Filed 0// Page 0 of 0 Page ID #: By failing to consider such direct, indirect, and cumulative impacts of all applicable past, present, and reasonably foreseeable development in the Final EA, Defendants violated NEPA. 0 C.F.R Defendants may not limit their NEPA inquiry only to the information presented to them in a project application. Rather, [r]easonable forecasting and speculation is... implicit in NEPA, and [courts] must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as crystal ball inquiry.... Methow Valley Citizens Council v. Reg l Forester, F.d 0, (th Cir. ) rev d on other grounds sub nom. Robertson v. Methow Valley Citizens Council, 0 U.S. (), citing City of Davis v. Coleman, F.d, (th Cir. ). Reasonable Alternatives. Defendants also violated NEPA by failing to adequately study, develop, and describe appropriate alternatives prior to approving the Chumash Tribe s proposed trust acquisition as required by U.S.C. ()(E).. While an EA is generally not required to be as thorough as an EIS, Defendants must still give full and meaningful consideration to all reasonable alternatives in an environmental assessment. W. Watersheds Project v. Abbey, F.d 0, 00 (th Cir. 0).. Although the Chumash Tribe has not indicated what it intends to do with % of the property, Defendants never considered taking fewer acres into trust, even though doing so would satisfy the needs and purpose articulated by the Chumash Tribe. Defendants are obligated to consider all feasible alternatives, and their failure to do so render their NEPA analysis deficient. See Abbey, F.d at 0. Further, the Chumash Tribe s recent purchase of a 0-acre property and its stated intent to take that property into trust raises the question of whether taking Camp into trust is necessary at all since the 0-acre property is sufficient to provide for the housing proposed on Camp. COMPLAINT DB/.

21 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 Appropriate Environmental Baseline 0. Defendants further violated NEPA by failing to use an appropriate environmental baseline for the proposed project in the Final EA.. NEPA requires that Defendants evaluate the environmental impacts of the Chumash Tribe s proposed trust acquisition against the baseline of environmental conditions as they would exist without the proposed project. See Am. Rivers v. Ferc, 0 F.d, n. (th Cir. ) (without establishing accurate baseline conditions, there is simply no way to determine what effect [an action] will have on the environment and, consequently, no way to comply with NEPA. ), citing Half Moon Bay Fishermans Mktg. Ass n v. Carlucci, F.d 0, 0 (th Cir. ); Gifford Pinchot Task Force v. Perez, 0 U.S. Dist. LEXIS 0, at *- (D. Or. July, 0) ( Without the baseline data, the agency cannot carefully consider information about significant environmental impacts and thus, the agency fails to consider an important aspect of the problem, resulting in an arbitrary and capricious decision. ).. Although the Chumash Tribe cannot develop Camp until at least January, 0, Defendants used present-day environmental conditions as its baseline to assess the impacts of the Chumash Tribe s proposed trust acquisition. Defendants made no attempt to even forecast conditions as they might exist in 0. Defendants failure to evaluate the effect of constructing new residences and related infrastructure on the environmental landscape as it will exist in 0 does not satisfy NEPA s requirement to take a hard look at potential environmental impacts. Other Violations. Defendants violated NEPA by failing to disclose the full scope of the proposed project in the Final EA. See Sierra Nevada Forest Protection Campaign, F. Supp. d at -. 0 COMPLAINT DB/.

22 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0. Defendants violated NEPA by failing to include in the Final EA many of the significant, adverse environmental impacts of the proposed trust acquisition, including impacts on: () land, water, and other living resources; () noise, traffic, and pollution; () socioeconomic conditions; and () agricultural resources. 0 C.F.R Defendants violated NEPA by making improper assumptions, faulty factual findings, and conclusory statements in the Final EA without adequate basis or support. Native Ecosystems Council v. Weldon, F.d 0, 0 (th Cir. 0). Among those improper assumptions is the failure to properly consider the. acres of easements and title to State Highway and public and private easements taken by the United States without regard to their validity or even their proper title.. Moreover, the new proposed land map provided by the Chumash Tribe on March, 0 constitutes significant new information that requires supplemental environmental review by Defendants under NEPA. Defendants Actions. On October, 0, despite Defendants several violations of NEPA, Defendant Dutschke issued a FONSI.. On January, 0, former Principal Deputy Assistant Secretary Roberts, in his capacity as Principal Deputy Assistant Secretary Indian Affairs, unlawfully upheld Defendant BIA s use of an EA and FONSI for the trust acquisition of Camp.. Defendants have completed taking the Property into trust on behalf of the Chumash Tribe based on the FONSI. 00. Plaintiffs will suffer immediate and irreparable harm if Defendants are not ordered to take Camp out of trust pending the completion of an environmental review process that complies with the provisions of NEPA and requirements of the federal regulations promulgated thereunder. COMPLAINT DB/.

23 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 THIRD CLAIM FOR RELIEF (Violation of U.S.C. 0(a) Against All Defendants) 0. Plaintiffs reallege and incorporate by reference each and every allegation set forth in Paragraphs through above as though fully set forth here. 0. Under the IRA, U.S.C. 0, Defendant Zinke, in his official capacity as the Secretary of Interior, has discretionary authority to take land into trust subject to compliance with Defendant Department s Land Acquisition regulations. See C.F.R..0-.,.. C.F.R..(c) 0. Under C.F.R..(c), [w]here land is being acquired for business purposes, the tribe shall provide a plan which specifies the anticipated economic benefits associated with the proposed use. Defendant BIA shall consider that plan as part of a tribe s request for the acquisition of off-reservation property. C.F.R..; cf. Christine A. May v. Acting Phoenix Area Director, Bureau of Indian Affairs, IBIA, () (where a tribe submitted a plan [that] addresse[d]... the anticipated economic benefits associated with the proposed use, BIA satisfied C.F.R..(c) by discussing that plan in connection with its analysis of the purposes for which the land would be used). 0. In the Notice of Decision, dated December, 0, Defendants BIA and Dutschke violated C.F.R..(c) because they did not consider a business plan or require the Chumash Tribe to submit such a plan. Because the Chumash Tribe included a business purpose in its proposed uses of Camp, it was legally required to submit a business plan detailing the anticipated economic benefits associated with such uses. Defendants BIA and Dutschke may not approve a trust acquisition where, as here, they have failed to consider a legal prerequisite to such acquisition. See Cnty of San Diego, IBIA at. COMPLAINT DB/.

24 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: Former Principal Deputy Assistant Secretary Roberts improperly affirmed the Notice of Decision, erroneously concluding that Defendants BIA and Dutschke did not err in failing to require the Chumash Tribe to submit a business plan and consider such a plan. Moreover, former Principal Deputy Assistant Secretary Roberts failed to require a business plan even after the Chumash Tribe proposed increased commercial development on Camp and neighboring parcels on March, 0. C.F.R..0(b) and.(a) 0. Defendant Department must consider the need of the individual Indian or the tribe for additional land[] before land may be taken into trust on its behalf. C.F.R..0(b),.(a). 0. In the Notice of Decision, Defendants BIA and Dutschke violated sections.0(b) and.(a) by failing to adequately address the need for all five parcels, over,0 acres, to be taken into trust. Moreover, Defendants BIA and Dutschke failed to consider other property that could be used for tribal housing, including the 0 acres of property purchased by the Chumash Tribe in June Former Principal Deputy Assistant Secretary Roberts violated sections.0(b) and.(a) by improperly upholding the inadequate Notice of Decision and by failing to evaluate whether the Chumash Tribe needed all of Camp to be taken into trust. C.F.R..0(c) and.(a) 0. Defendant Department must consider the purposes for which the land will be used[] before land may be taken into trust on its behalf. C.F.R..0(c),.(a). 0. In the Notice of Decision, Defendants BIA and Dutschke violated sections.0(c) and.(a) by failing to adequately evaluate all current and proposed uses of Camp, including the 00 plus acre vineyard and the Tribal COMPLAINT DB/.

25 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 facility, proposed to include 0 parking spaces and host 00 events per year with over 00 attendees per event.. Former Principal Deputy Assistant Secretary Roberts violated sections.0(c) and.(a) by improperly upholding the inadequate Notice of Decision and by failing to consider all the purposes for which the Chumash Tribe seeks to use the land. C.F.R..0(f),.(a), and.. Defendant Department must consider any [j]urisdictional problems and potential conflicts of land use which may arise[] before land may be taken into trust on its behalf. C.F.R..0(f),.(a).. In the Notice of Decision, Defendants BIA and Dutschke violated sections.0(f) and.(a) by failing to address the actual jurisdictional and land use conflicts that could arise with the Chumash Tribe s proposed uses and inaccurately concluding that such proposed uses would be consistent with Camp s surrounding uses.. For example, Defendants BIA and Dutschke failed to comply with sections.0(f) and.(a) because they did not address the fact that the government was taking land that the Chumash Tribe does not own into trust, i.e., the. acres of public roadways seemingly included in the Chumash Tribe s feeto-trust application. Moreover, the Chumash Tribe has proposed increased facility, residential, and commercial development on Camp and on neighboring parcels development that is inconsistent with the land s current surrounding uses. Defendants have not considered this additional information and its effect on jurisdictional problems and land use conflicts.. In addition, pursuant to C.F.R.., Defendant BIA must acquire, or require the applicant to furnish, title evidence meeting the Standards for the Preparation of Title Evidence in Land Acquisitions by the United States, issued by the U.S. Department of Justice for the property to be taken into trust. COMPLAINT DB/.

26 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 Under such standards, Defendant BIA must evaluate title evidence and make a clear determination regarding any liens, encumbrances, or infirmities on the land at issue. C.F.R... Inconsistencies regarding title of the land should be resolved prior to BIA approving a fee-to-trust application. Id.; see also Acquisition of Title to Land Held in Fee or Restricted Fee Status Release #-0, Version III (rev ), Issued: 0--. DB/.. Defendants BIA and Dutschke violated section. by failing to resolve the title inconsistency regarding the. acres of public roadways in the proposed trust area. It is especially critical that title to Camp be clear and unambiguous prior to trust acquisition because once the land is converted to trust status, the Chumash Tribe will have full control over these alleged right of ways, and the public will have no legal recourse to resolve title disputes or contest rights to the roads. U.S.C. 0a; Block v. N. Dakota, U.S., ().. Former Principal Deputy Assistant Secretary Roberts violated sections.0(f),.(a), and. by improperly upholding the inadequate Notice of Decision and by failing to consider jurisdictional problems and potential conflicts of land use, including title inconsistencies of the public roadways included in the Chumash Tribe s proposed trust acquisition. C.F.R..0(g) and.(a). Defendant Department must consider whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the Defendants BIA and Dutschke s failure to clear title to the public roadways also violates NEPA. See 0 C.F.R. 00.(b) ( NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. ); 0 C.F.R. 0.(b) ( agencies shall... [d]evote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits. ). The contradictory, incorrect, and unsupported title information in the Final EA deprived the public of a meaningful opportunity to participate in the environmental review. COMPLAINT

27 Case :-cv-0 Document Filed 0// Page of 0 Page ID #: 0 0 acquisition of the land in trust status[] [i]f the land to be acquired is in fee status[] before land may be taken into trust on its behalf. C.F.R..0(g),.(a).. In the Notice of Decision, Defendants BIA and Dutschke violated sections.0(g) and.(a) by summarily concluding that Defendant BIA would not have any additional duties in reliance on an inaccurate analysis of the provision of public services in the area, including fire, security, and medical services; waste disposal; and school, parks, and recreation. 0. Former Principal Deputy Assistant Secretary Roberts violated sections.0(g) and.(a) by improperly upholding the inadequate Notice of Decision and by failing to consider whether Defendant BIA is equipped to handle the additional responsibilities resulting from the trust acquisition. C.F.R..(b). Defendant Department must consider the location of the proposed trust area relative to state boundaries, and its distance from the boundaries of the tribe s reservation before land may be taken into trust on its behalf. C.F.R..(b). [G]reater scrutiny shall be given to the tribe s justification of anticipated benefits for any off-reservation acquisition. Id.. In the Notice of Decision, Defendants BIA and Dutschke violated section.(b) by failing to acknowledge and apply the heightened scrutiny that is required for the Chumash Tribe s proposed off-reservation trust acquisition. The decision improperly and summarily concluded that Defendant Dutschke had fulfilled her responsibility under section.(b).. Former Principal Deputy Assistant Secretary Roberts violated section.(b) by improperly upholding the inadequate Notice of Decision and by failing to consider whether Defendant Dutschke had applied the requisite level of scrutiny to the Chumash Tribe s justification for its proposed off-reservation acquisition. COMPLAINT DB/.