Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 1 of 12 UNITED STATES REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS SUPPLEMENTAL CLAIM

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1 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 1 of 12 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK UPSTATE CITIZENS FOR EQUALITY, INC., DAVID VICKERS, SCOTT PETERMAN, RICHARD TALLCOT, AND DANIEL T. WARREN, UNITED STATES OF AMERICA, et al., v. CIVIL ACTION NO. Plaintiffs, 5:08-cv LEK-GJD Defendants. UNITED STATES REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS SUPPLEMENTAL CLAIM

2 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 2 of 12 TABLE OF CONTENTS ARGUMENT...1 I. The Court lacks subject matter jurisdiction over Plaintiffs supplemental claim....1 A. The United States has not waived its sovereign immunity B. Plaintiffs lack standing to raise their claim II. Plaintiffs supplemental claim should be dismissed for failure to state a claim A. Plaintiffs reservation claim fails to state a claim B. The United States may transfer federal property between federal agencies....7 C. 25 C.F.R (b) does not apply to federal transfers III. Plaintiffs have not yet properly served their supplemental complaint CONCLUSION ii

3 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 3 of 12 Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Defendants, Kenneth L. Salazar, Secretary of the United States Department of the Interior; George T. Skibine, Acting Assistant Secretary of the Interior for Indian Affairs; the United States Department of the Interior ( DOI ); Philip N. Hogen, Chairman of the National Indian Gaming Commission; the National Indian Gaming Commission; Paul F. Prouty, Acting Administrator of the General Services Administration ( GSA ); Eric Holder, Attorney General of the United States; and the United States, (collectively, the United States or Federal Defendants ), by undersigned counsel, hereby submit this Reply in support of their Motion to Dismiss Plaintiffs Supplemental Claim. UCE fails to establish that the United States has waived its sovereign immunity to this claim or that it has standing to raise it. Moreover, the supplemental claim should be dismissed for failure to state a claim. ARGUMENT I. The Court lacks subject matter jurisdiction over Plaintiffs supplemental claim. A. The United States has not waived its sovereign immunity. UCE contends that the Quiet Title Act ( QTA ), 28 U.S.C. 2409a, does not apply to its supplemental claim because it does not dispute the United States title to the 18 acre parcel. Instead, UCE contends, because it merely challenges the Oneidas beneficial title to the land its status as trust land the QTA would not bar the action. This argument flies in the face of the very purpose of the QTA s Indian lands exception and is inconsistent with the Supreme Court s admonition that the requirements of the QTA cannot be sidestepped by artful pleading. Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 285 (1983). As explained in United States v. Mottaz, the QTA s Indian lands exception is necessary to prevent abridgement 1

4 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 4 of 12 of solemn obligations and specific commitments that the Federal Government had made to the Indians regarding Indian lands. A unilateral waiver of the Federal Government s immunity would subject those lands to suit without the Indians consent. 476 U.S. 834, 843 n.6 (1986) (internal quotations omitted). UCE s interpretation of the reach of the QTA s Indian lands exception would mean that the QTA does not waive federal sovereign immunity to challenges to Indian lands by parties claiming their own interest in the lands, but does waive it to challenges brought by third parties with no interest of their own in the land other than to see it deprived of its Indian land status. Unsurprisingly, UCE s view of the reach of the QTA s waiver has been expressly rejected by the courts. The Tenth, Ninth, Eleventh, and Seventh Circuits have applied the Supreme Court s decisions in Block and Mottaz to reject the theory advanced by UCE. As the Tenth Circuit explained, [i]f Congress was unwilling to allow a plaintiff claiming title to land to challenge the United States title to trust land, we think it highly unlikely Congress intended to allow a plaintiff with no claimed property rights to challenge the United States title to trust land. Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 962 (10th Cir. 2004). 1 / Similarly, the Ninth Circuit rejected an argument that the QTA does not apply [where a plaintiff] is not seeking to quiet title in itself but merely to quiet title in others than the Tribe because to allow this suit would permit third parties to interfere with the Government s discharge of its responsibilities to Indian tribes in respect to the lands it holds in trust for them. Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, (9th Cir. 1987). The Eleventh Circuit, in Florida, Department of 1 / The Tenth Circuit s rejection of the third party loophole construction of the QTA s Indian lands exception was consistent as it acknowledged with the requirement that courts construe waivers of the United States sovereign immunity narrowly. Neighbors, 379 F.3d at

5 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 5 of 12 Business Regulation v. U.S. Department of Interior, 768 F.2d 1248, (11th Cir. 1985), likewise noted that the rationale for barring challenges to land held in trust for Indians by adverse claimants applies to third party challengers as well because it would be anomalous to allow others, whose interest might be less than that of an adverse claimant, to divest the sovereign of title to Indian trust lands. And the Seventh Circuit, in Shawnee Trail Conservancy v. U.S. Department of Agriculture, 222 F.3d 383, 387 (7th Cir. 2000), rejected the assertion that the QTA did not apply because the plaintiff was not attempting to quiet title in itself. UCE cannot sidestep the rationale of these cases based on the fact that their suit would leave underlying title in the hands of the United States, even if the Oneidas are deprived of beneficial title. The Supreme Court, in Mottaz, applied the QTA where only beneficial title was at issue. Mottaz concerned a suit brought by an Indian allottee alleging that land formerly held in trust for her by the United States had been improperly sold to the U.S. Forest Service. 476 U.S. at 836 ( Title to each of these allotments was held in trust by the United States. ). In 1954, despite the lack of express consent from every person who held an interest in any of the three allotments, the Government sold them to the United States Forest Service. Id. at 837. Had the suit gone forward, regardless of its outcome, the United States would have continued to hold title to the land either as a trustee with beneficial title held by the plaintiff, or in its own right as Forest Service property. Because only the validity of the plaintiff s alleged beneficial title to the property was at issue in Mottaz, according to UCE, the QTA should not have applied. But the Court held that the plaintiff s claim for beneficial title raised a title dispute that brought the suit within the scope of the QTA: We think that respondent s suit falls within the scope of the Quiet Title Act.... Id. at 841. The Court held that the QTA did not waive the government s 3

6 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 6 of 12 sovereign immunity because the suit was not filed within the twelve year period allowed by the QTA s waiver provision: Congress has consented to a suit challenging the Federal Government s title to real property only if the action is brought within the 12-year period set by the Quiet Title Act. Id. at / The Fifth Circuit has similarly held that the QTA applies to suits where only equitable title is at issue. See Prater v. United States, 618 F.2d 263 (5th Cir. 1980) (per curiam) (action to raise a claim of equitable title suffices for jurisdictional purposes to fall within scope of QTA s waiver). Plaintiffs reliance on Leisnoi, Inc. v. United States, 170 F.3d 1188 (9th Cir. 1999), is misplaced. Leisnoi was not concerned with whether the QTA only applies to title disputes but rather with what constitutes such a dispute specifically whether a title dispute exists where it is not the United States but rather a third party alleging a federal interest in the property: The peculiarity of this case is that, although the United States itself did not assert its interest in Leisnoi s title, a third party, Stratman, insisted that the United States had a claim to title. 170 F.3d at Plaintiffs other reference, Citizens Against Casino Gambling in Erie County v. Kempthorne ( CACGEC ), 2007 WL (W.D.N.Y. Apr. 20, 2007), is on point, but is wrongly decided. The district court there asserted the absence of any case that was dismissed based on the QTA where the claims or relief requested had no potential to alter title to real property WL , at *6. However, Mottaz is such a case, and this Court should 2 / Mottaz discussed but rejected application of the Indian lands exclusion because the United States claimed an interest in the land not on behalf of Indian beneficiaries of a trust, but rather on behalf of the United States Forest Service. Mottaz, 476 U.S. at

7 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 7 of 12 follow that case rather than a conflicting district court case. 3 / B. Plaintiffs lack standing to raise their claim. Plaintiffs allege standing on the basis of a harm suffered from operating and expanding trust land because UCE members allegedly will be affected by the changes in the land use absent compliance with local and State rules and regulations. Pl. Opp. 8. Plaintiffs do not actually allege any on-going or proposed change of use in the 18 acre parcel and, accordingly, cannot begin to identify what rules and regulations are circumvented and how this in turn threatens harm to UCE s members. In short, UCE does not allege a concrete injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992) (plaintiff alleging standing must have suffered an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical ) (internal quotations and citations omitted). The cases relied upon by UCE for standing are all premised upon a harm derived from something more than the mere change in the land s status. See City of Roseville v. Norton, 219 F. Supp. 2d 130, (D.D.C. 2002) (proposed gaming facility on trust land allegedly threatens plaintiffs health and security); Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, (1st Cir. 2007) (federal lease of land to developer to construct liquefied natural gas terminal constitutes change in land use threatening plaintiffs interests); TOMAC v. Norton, 193 F. Supp. 2d 182, 187 (D.D.C. 2002) (casino proposed for land taken into trust threatens harm to 3 / The QTA Indian lands exception applies to both trust and restricted Indian lands. See 28 U.S.C. 2409a(a). The United States does not hold legal title to restricted fee Indian lands, so Plaintiffs interpretation of the QTA s waiver of sovereign immunity essentially renders its protection of restricted Indian lands a nullity, since there can be no suit against the United States asserting that title lies in a plaintiff rather than the United States. 5

8 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 8 of 12 plaintiffs); Comm. for Auto Responsibility v. Solomon, 603 F.2d 992, 998 (D.C. Cir. 1979) (standing to challenge lease of area as parking lot where plaintiffs allege harm from noise, pollution, and congestion caused by parking lot). Here there is no proposed change in land use so there is no impact on Plaintiffs. See Sauk County v. U.S. Dep t of Interior, 2008 WL , at *5 (W.D. Wis. May 29, 2008) (plaintiff lacks standing to bring National Environmental Policy Act claim in challenge to trust acquisition because potential harm from trust decision derived from a series of speculations concerning future use of the parcel by the tribe). Even where, as here, Plaintiffs allege a procedural harm which relaxes the standing requirements, they still must allege a harm that derives from the alleged procedural violation. See Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009) ( But deprivation of a procedural right without some concrete interest that is affected by the deprivation a procedural right in vacuo is insufficient to create Article III standing. ). Because the transfer of the 18 acre parcel into trust does not alter the use of the land, UCE cannot point to any injury in fact and the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by [procedural rights afforded through statute by Congress]. Id. Because the transfer of the 18 acre parcel into trust does not impact UCE, it has no standing to bring claims procedural or otherwise. 4 / 4 / Even should the Court determine Plaintiffs have standing based on their alleged procedural claim, that only gives UCE standing to pursue its claim that DOI s land-to-trust regulations apply to transfers since UCE s alleged procedural injury derives from failure to apply those regulations. See Summers, 129 S. Ct. at 1149 (plaintiff bears burden to show standing for each type of relief sought ); Solomon, 603 F.2d at 998 (plaintiffs establish standing to bring National Environmental Policy Act claim but not other claims). 6

9 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 9 of 12 II. Plaintiffs supplemental claim should be dismissed for failure to state a claim. A. Plaintiffs reservation claim fails to state a claim. UCE contends that the 18 acres do not fall within the Oneida Reservation because the dissent in the Second Circuit s Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139 (2d Cir. 2003), was tacitly accepted by the Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005). Pl. Opp. 15. The Supreme Court s decision did not address whether the Oneida Reservation was diminished or disestablished, Sherrill, 544 U.S. at 216 n.9, but considered whether equitable considerations precluded the Court from granting the Oneidas the remedy they sought. The Court specifically declined to grant the declaratory and injunctive relief recognizing [the Tribe s] present and future sovereign immunity from local taxation. Id. at 214. As for UCE s claim that the land was never set aside by the United States for the Oneidas, Pl. Opp. 17, that proposition simply ignores the Treaty of Canandaigua, 7 Stat. 44 (1794). See Sherrill, 544 U.S. at (United States, in Treaty of Canandaigua, guaranteed the Oneidas use and enjoyment of their Reservation lands). UCE directs the Court to other evidence it contends makes the existence of the Oneida Reservation questionable, but unless UCE can demonstrate that the Second Circuit s holding in Oneida Indian Nation of New York v. City of Sherrill that the Reservation has not been disestablished has been overturned, all such evidence is irrelevant as that holding is binding Circuit precedent. See In re Sokolowski, 205 F.3d 532, 535 (2d Cir. 2000) (Circuit precedent binding unless and until its rationale is overruled ). B. The United States may transfer federal property between federal agencies. UCE s arguments concerning whether or not New York ceded jurisdiction over the 18 7

10 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 10 of 12 acre parcel while it was part of the Verona Test Site and whether the United States violated the terms of such cession are irrelevant. 5 / The contention that the United States lost power to transfer administrative control of the parcel from one federal agency to another once the parcel was no longer used for military purposes is legally unfounded. Pl. Opp. 22. The Constitution s Property Clause and Supremacy Clause provide the United States plenary authority over the retention, management, and disposition of federal land. The Property Clause provides that Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. U.S. Const. art. IV, 3, cl. 2. Under this Clause, Congress's power over federal lands is without limitations. Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) (internal quotations omitted). Under the Supremacy Clause, the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. M Culloch v. Maryland, 17 U.S. 316, 436 (1819). Thus, it is well-established that the activities of the Federal Government are free from regulation by any state. Mayo v. United States, 319 U.S. 441, 445 (1943); see also Blackburn v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996) ( states may not directly regulate the Federal Government's operations or property ). Through 40 U.S.C. 523, Congress has exercised Property Clause powers to mandate the disposal of federal property. Further, Congress s decision, in that statute, that such property should be held in trust is made pursuant to Congress s broad authority over Indian affairs pursuant to the Indian Commerce 5 / UCE argues first that the State did cede its jurisdiction to the United States but that it reverted back, Pl. Opp , and then that New York did not cede jurisdiction, id. at 21-22, concluding that [e]ither way, the result is the same.... Id. at 22. 8

11 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 11 of 12 Clause of the Constitution, art. I, 8, cl.3. State and local regulations that interfere with the exercise of these constitutional powers are preempted, just as they are with regard to military matters. C. 25 C.F.R (b) does not apply to federal transfers. UCE misunderstands DOI s position regarding the applicability of its land-to-trust regulations. The Federal Defendants do not contend that those regulations do not apply to mandatory trust acquisitions, per se. Rather, an April 17, 2002 guidance memo issued by DOI made clear that some of DOI s land-to-trust regulations apply in the context of mandatory acquisitions. See Dkt. No However, the property at issue here was already held by the federal government, so the 18 acres are not a federal acquisition. Rather it is property transferred from one federal agency to another to be held in trust. Thus UCE s arguments that 25 C.F.R and have some applicability in the context of mandatory trust acquisitions is not disputed. Pl. Opp What is disputed is whether those regulations have applicability outside the context where DOI is acquiring property in trust from a non-federal party. Here, the property was already held by the federal government, so the 18 acres were not a federal acquisition. Furthermore, under Section 523, GSA not DOI is charged with formulating and implementing the procedures for the transfer of property. See 40 U.S.C. 523(a). DOI s only role under the statute is to hold the transferred land in trust. See 40 U.S.C. 523(b)(1). Thus, application of DOI s land-to-trust regulations makes no sense in this context. III. Plaintiffs have not yet properly served their supplemental complaint. Plaintiffs filed their supplemental complaint, which adds a new defendant, on January 30, Dkt. No. 35. The Federal Defendants have no evidence that Plaintiffs have properly 9

12 Case 5:08-cv LEK-GJD Document 47 Filed 06/05/2009 Page 12 of 12 served their supplemental complaint and summons in compliance with Federal Rule of Civil Procedure 4(i). Federal Rule of Civil Procedure 4(m) provides UCE 120 days to perfect service after filing the complaint and that period expired on May 30, Since Plaintiffs do not appear inclined to perfect service, this provides an additional ground for dismissal of Plaintiffs supplemental claim as well as for dismissal of Defendant Paul F. Prouty in his capacity as Acting Administrator of the GSA. 6 / CONCLUSION For the above-mentioned reasons, Plaintiffs supplemental claim, count 8, should be dismissed for lack of subject matter jurisdiction and failure to state a claim. DATED: June 5, 2009 Respectfully submitted, John C. Cruden Acting Assistant Attorney General Environment and Natural Resources Division /s/ STEVEN MISKINIS (105769) Indian Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box Washington, D.C (202) FAX (202) steven.miskinis@usdoj.gov Attorney for the United States 6 / Plaintiffs incorrectly identify the Acting Administrator of the GSA as James A. Williams. 10