NCIP v. Jewell - MSJ Opp 2-5 CA 021715 PDF

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 1 of 24
KENNETH R. WILLIAMS, State Bar No. 73170

Attorney at Law
980 9th Street, 16th Floor

Sacramento, CA 95814
Telephone: (916)543-2918
Attorneyfor Plaintiffs
No Casino in Plymouth and
Citizens Equal Rights Alliance
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
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NO CASINO IN PLYMOUTH and CITIZENS

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PLAINTIFFS' MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANTS'
MOTIONS FOR SUMMARY
JUDGMENT ON PLAINTIFFS'
Plaintiffs,
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Case No. 2:12-cv-01748-TLN-CMK
EQUAL RIGHTS ALLIANCE,
v.
SALLY JEWELL, in her official capacity as

Secretary of the U.S. Department of the
SECOND, THIRD, FOURTH AND FIFTH

CLAIMS FOR RELIEF
Interior, et al.
Date: March 26,2015
Defendants.
Time: 2:00 p.m.
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Place: Courtroom No. 2
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Judge: HonorableTroy L. Nunley

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INTRODUCTION
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Plaintiffs respectfully submit this opposition memorandum in response to Defendants'
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motions for summary judgment on the Plaintiffs' second, third, fourth and fifth claims for relief.
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Defendants' motions were filed outside the sequence of the motions allowed by the Court with
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respect to Plaintiffs' motion, and potential cross-motions, on the Plaintiffs' first claim for relief.
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The Defendants' motions are intended to confuse the issues and to deflect the Court from
considering Plaintiffs' motion for summary judgment first - as scheduled by the Plaintiffs.
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PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

As instructed, when the Court denied Plaintiffs motion for judgment on the pleadings,
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(Electronic Court File (ECF) No. 71), Plaintiffs filed a motion for summary judgment on their
first claim for relief. (ECF Nos. 60 & 61.) Contrary to the contention of the Defendants, Plaintiffs
did not abandon their other four claims in its complaint. Instead, Plaintiffs noted that their first
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claim for relief was a "keystone" claim which, if decided in Plaintiffs' favor, would eliminate the
need for the Court to decide the remaining claims. Specifically, if the Court grants Plaintiffs'
motion and finds that the lone Band was nota"recognized Indian tribe under federal jurisdiction"
in 1934, then the Parcel could not be taken into trust for the lone Band and the remaining claims
would be moot. This s scheduling sequence was established and consistently urged by Plaintiff
for judicial economy and efficiency reasons.
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The Court gave the Defendants an opportunity to file an opposition and cross-motion on
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the first claim - which they did1. But they went beyond the Court's Order and filed new motions
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on the remaining claims. Defendant motions, designed to distract, confirm the legal axiom that:
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If you're weak on the facts and strong on the law, pound the law. If you're weak on the
law and strong on the facts, pound the facts. If you're weak on both, pound the table.
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This advocacy "maxim" isoften attributed to Oliver Wendell Holmes. But former Vice President
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Al Gore, almost one hundred years later, provided a "modernized" version:
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"When you have the facts on your side, argue the facts. When you have the law on your
side, argue the law. When you have neither, holler!"
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The undisputed facts provided in Plaintiffs' MSJ demonstrate that the Federal Defendants
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lacked the authority to take land into trust for the lone Band because it was not a "recognized
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Indian tribe under federal jurisdiction" in 1934. Carcieri v. Salazar, 555 U.S. 379 (2009).
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1In an obvious attempt to further conflate the issues, Defendants filed their opposition to
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Plaintiffs motion on the first claim and their motions on the second, third fourth and fifth claims
in a combined brief. Plaintiffs are responding to Defendants arguments on the first claim for relief
in a reply filed separately and request that Plaintiffs' motion bedecided first. If the Court grants
Plaintiffs' motion there will be no need to proceed with Defendants motion.
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DEFENDANTS' MOTIONS FORSUMMARYJUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

Instead, the AR confirmsthat the lone Indians were a "non-tribal" group of "non-ward" homeless
California Indians living near lone in 1934. The facts and law are strong, and should compel
summary judgment, in Plaintiffs' favor on the first claim for relief.
In contrast, the facts and law are not on the Defendants' side on the first claim for relief.
The historic facts were concisely summarized in a 1933 letter from the Superintendent of the
Sacramento Indian Agency which describes the homeless California Indian at lone as follows:
The situation of this group of [homeless lone] Indians is similar to that of many others in
this Central Valley area. They are classified as non-wards ... because they are not
members of any tribe having treaty relations with the Government, they do not live on an
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Indian reservation or rancheria and none of them have allotments in their own right held in
trust by the Government. (Emphasis added; Undisputed Fact (UF) 23.)
Thus, the facts as summarized in 1933 confirmed that lone Indians were not a recognized tribe or
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under federal jurisdiction in 1934. The weakness of Defendants' legal position is confirmed by
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the fact that, instead of relying on the majority opinion in Carcieri, they rely on a dissent
Thus, to divertthe Court's attention from the weakness of their factual and legal positions
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on the first claim, Defendants decided to file an out-of-sequence motion on all the other claims
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This was the equivalent of Defendants' "pounding the table" and "hollering" to try to deflect a
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judgment being issued in Plaintiffs' favor on the first claim which would moot the remaining
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claims and end this case. This tactic should be rejected by the Court. Instead, Plaintiffs request
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that the Court decide Plaintiffs motion first and reschedule Defendants' motion if necessary.
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In any event, Defendants' motions for summary judgment on Plaintiffs' remaining four
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claims are without merit. First Mr. Laverdure was not appointed by the President orconfirmed
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bythe Senate and lacked any authority to take any land out of State jurisdiction and put it in trust
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for lone Indians. Thus the ROD is void. Also Defendants did not follow their own regulations
(25 CFR Part 151), IGRA or NEPA motions should be denied and judgment should be entered in
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Plaintiffs' favor on all the claims. Fed. R. Civ. Proc. 56(0

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STATEMENT OF THE CASE
This lawsuit was filed on June 29, 2012, thirty days afterthe ROD was published. (ECF
No. I). And Plaintiffs filed their First Amended Complaint for Declaratory and Injunctive Relief
on October 1, 2012 (ECF No. 10). Plaintiffs named several federal officials and employees with
the Department of Interior(DOI), the Bureau of Indian Affairs (BIA), the Office of Indian
Gaming (OIG) and the National Indian Gaming Commission (NIGC) who were involved in
preparing or approving the ROD. The action against the Federal Defendants was brought
pursuant to the Administrative Procedures Act (APA) and sought Declaratory and Injunctive
relief. The Federal Defendants filed their Answer on December 10, 2012. (ECF No. 14.)
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The lone Band filed a motion to intervene as defendant on June 6, 2013 (ECF No. 35.)
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And the Intervenor lone Band finally filed its Answeron November 26, 2013. (ECF No. 57.)
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Thus the lone Band waived its sovereign immunity claim and became a Defendant. Although the
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APA does not apply to the lone Band, the Plaintiffs' Declaratory and Injunctive relief claims do
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apply against the lone Band.
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The Plaintiffs' Amended Complaint includes five causes ofaction:

1. First Claim for Relief- The Federal Defendants lack the authority to take land into trust
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for the lone Band because it was not a "recognized tribe now under federal jurisdiction"
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in 1934 when the IRA was enacted. Carcieri v. Salazar, 555 U.S. 379 (2009).
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2. Second Claim for Relief - The Federal Defendants failed to comply with their own
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regulations when they reviewed and approved the ROD and their approval of the ROD
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was arbitrary, capricious and an abuse of discretion. 25 C.F.R. 151.10 & 151.11.
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3. Third Claim for Relief- The Federal Defendants don't have the authority take privately
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owned lands into trust for the lone Band free of State and local regulation. To do so,
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would violate the principles of federalism. See Hawaii v. OHA, 129 S.Ct 1436 (2009).
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4. Fourth Claim for Relief - The Federal Defendants incorrectly decided that, assuming the
lands are properly taken into trust, the subject property would qualify as "restored land
for a restored tribe" under IGRA. 25 U.S.C. 2719.
5. Fifth Claim for Relief-The Federal Defendants failed to comply with NEPA when they
reviewed and approved the fee-to-trust transfer and the casino project. 42 U.S.C. 4321
et seq. seq.; 40 C.F.R. 1500 et seq. seq.
Plaintiffs have consistently notified the Defendants and the Court that they intended to
bring a dispositive motion on the first claim for relief that could alleviate the need to adjudicate
the remaining claims (See ECF No. 58.) Plaintiffs' first attempt to resolve this case with a
dispositive motion on their first claim for relief was a motion for judgment on the pleadings filed
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on February 13, 2014. (ECF Nos. 60, 61 and 62.) Defendants filed oppositions challenging the
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procedure used by the Plaintiffs not the merits of the motion. (ECF Nos. 64 and 65.) On August
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11, 2014 the Court denied Plaintiffs' motion for Judgment on the pleadings (ECF No. 71)
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The Court agreed with the Defendants' procedural contentions and directed the Plaintiffs
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file a motion for summary judgment instead ofa motion for judgment on the pleadings on their
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first claim for relief. (ECFNo. 71.) Specifically, Plaintiffs were directed to file their motion for
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summary judgment within 60 days of the issuance of the Court's Order (filed October 14,2014)
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The Defendants had 60 days to file a "combined opposition and cross motion for summary
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judgment" (filed December 15,2014). Plaintiffs then had 60 days to file their reply and
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opposition to the cross motions (due February 17,20151. Defendants will have 30days to file
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their replies (due March 22, 2015). And the hearing is set for March 27. 2015.
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This briefing schedule would have worked but-for the fact that in addition to filing an
opposition and cross-motion on the first claim for relief on December 15, 2015, Defendants filed
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new motions for summary judgment on the second, third, fourth and fifth claims on December 15,
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DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (CaseNo. 2:12-cv-01748 TLN CMK)
2014. The Defendants out-of- sequence motions for summary judgment on issues separate from
related to the first claim for relief, disrupted the entire briefing schedule. Plaintiffs do not have
sufficient time to file cross-motions on the second, third, fourth and fifth cross-motions for
summary and related replies before the March 27, 2015 hearing. So Plaintiffs can only oppose the
Defendants motion without filing cross-motions for summary judgment on the second, third,
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fourth and fifth claims for relief. Plaintiffs reserve the right to do so at a later date.
Plaintiffs brought a motion for summary judgment on their first claim for relief, only,
because, if decided in plaintiffs' favor, it is would resolve the remainder of the case. Specifically,
if Plaintiffs' motion is successful, then the property cannot be taken into trust and there should be
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no need for the parties to litigate, or for the Court to decide, the remaining four causes of action.
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Defendants, in hopes of derailing Plaintiffs' effort to have their first claim decided first,
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have filed a motion for summary judgment on the remaining four claims with its cross-motion on
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the first claim. Thus, despite the litigation andjudicial inefficiency of Defendants' approach.
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Plaintiffs file this opposition to the Defendants' motion on the remaining claims. But Plaintiffs
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continue to request that Defendants' motion be continued and these issues be decided if necessary
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after Plaintiffs motion on the first claim for relief (the Carcieri claim) is finally resolved.
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STATEMENT OF FACTS
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This case was triggered by the Record of Decision (ROD) of the Bureau of Indian Affairs
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(BIA) dated May 24, 2012 and published May 30, 2012 (77 Fed. Reg. 31871-31872, May 30,
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2012; AR010049 et seq. seq.). The ROD purports to place 228.04 acres of privately owned land
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into trust for the lone Band for gaming purposes. The land is located in the City of Plymouth,
Amador County. The property is not, and never was, owned by the lone Band. Instead, it is
owned by private non-Indian investors who hope to reap the economic benefits of building and
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operating an Indian casino in conjunction with the lone Band as a front group
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According to the ROD, the lone Band submitted its trust application to the BIA in
November 2005. The stated purpose of the proposed trust acquisition was to construct a 120,000
square foot casino, a 250 room hotel, a 30,000 square foot convention facility and related
structures in the middle of the small rural town of Plymouth in Amador County. A major casino
would overwhelm the little town of Plymouth with traffic and create adverse environmental
impacts including irreversible impacts to the air and water quality in Plymouth. It would also
forever change to rural and quiet life-style of the community. Thus this lawsuit was initiated
The supposed undisputed facts that Defendants claim support their motions for summary
judgment are not referenced with the motions. Specifically, Defendants failed to comply with the
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summary judgment procedures and did not file a Statement of Undisputed Facts (SUF) in support
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of their motions. (Fed. R. Civ. Proc. 56 and L.R. 260.) The Federal Defendants claim that it is
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not usually necessary to file an SUF in an APA case. That could be true in some circumstances,
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but they did not ask the Court for a waiver. Nor they ask the Plaintiffs for a stipulation waiving
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the requirement. The Intervenor-Defendant acknowledged that a SUF is usually required in non-
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APA cases but reserved the right to do so latter. Local Rule 260 does not allow the SUF to be
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filed at a later date. Their motion should be denied without prejudice to being refiled with a SUF,
The Defendants have failed to identify which documents in the AR support their motions
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for summary judgment. Instead, they claim their motions are supported by the entire AR. But the
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Plaintiffs and the Court should not be required to scour the 20,000 page AR to determine which
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evidence contradicts phantom documents not referenced by the Defendants. Keenan v. Allan, 91
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F.3d 1275,1279 (9th Cir. 1996). The Court is entitled to limit its review to the documents
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submitted for the purposes ofsummary judgment and those parts ofthe record specifically
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identified in the motion for summary judgment. Carmen v. San Francisco Unified Sch. Dist., 237
F.3d 1026, 1030 (9th Cir. 2001). Defendants; motion should be denied without prejudice because
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they failed to submit a Statement of Undisputed Facts with their motion. And based on the
documents referenced in their motions, summary judgment should be granted in Plaintiffs' favor.
Despite this deficiency in Defendants' motion, Plaintiffs are filing concurrent with this
opposition, a separate Statement of Undisputed Facts in opposition to Defendants' motion. All the
Undisputed Facts listed in the Plaintiffs Statement of Undisputed Facts are supported by the AR.
And, notonly do the undisputed facts reveal that Defendants' motions should be denied, they
demonstrate that judgment should be entered in Plaintiffs favor. Fed. R. Civ. Proc. 56(f).
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ADMINISTRATIVE RECORD
The 2013 Administrative Record (AR) created and filed with the Court by the Federal
Defendants is a classic "post-hoc rationalization" and justification of a previous decision already
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made by Mr. Laverdure. It was not in existence when Mr. Laverdure signed the ROD in May
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2012. And there are no references to the "AR" by Mr. Laverdure in the ROD.
This is not to say that there was not a "record" at the time Mr. Laverdure made his
decision. The record at that time consisted of all the Department of Interior (DOI) files and
documents regarding the lone Indians. It at least included copies ofall the recently discovered
DOI files and documents located in the UC Davis Special Collections Library. It also included
the entire court file in the lone Band v. Burris case. The DOI was the prevailing party in that case
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and it is referenced in the ROD. It is part of the administrative record in existence when the ROD
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ryr.
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was signed by Mr. Laverdure

The first part of the AR was prepared in 2013 about a year after Mr. Laverdure issued the
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ROD and six month after he left the DOI.. It consists of over 20,000 pages of random
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documents. Many ofthe documents are redacted or incomplete. Many ofthe documents are self-
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serving "drafts" orare irrelevant and should not be in the AR. The documents often reference
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other documents which are not attached or included in the AR. Some of the documents are
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covered by a protective order in this case even though they were circulated to other third parties
prior to this case. And there are major gaps in the AR; for example, there are virtually no
documents in the AR from 1927 to 1972. This is especially odd given the critical decade of the
1930s when the IRA was enacted and implemented.
We now know, from the UC Davis Special Collections Files, that there was a great deal of
correspondence in the 1930's and later in the DOI's files that reveal that federal government
decided that it could not buy land or provide any federal assistance to the lone Indians because
they were "non-ward" and "non-tribal" homeless California Indians that were not under federal
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jurisdiction in 1934. (See Kallenbach Declaration ECF No. ) It is now apparent that pertinent
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federal documents from the 1930s discussing the non-applicability of the IRA to the lone Indians
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were deleted form the record and/or AR before it was filed with the Court.
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Courts consistently reject attempts by agencies to limit judicial review to only that portion
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of the record submitted by the agency, to the exclusion of other documents that were clearly
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considered. An agency is not allowed to withhold from the administrative record documents or
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"evidence unfavorable to its case." Walter O. Boswell Mem 7Hosp. v. Heckler 749 F.2d 788, 792
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(D.C. Cir. 1984). The whole administrative record "is not necessarily those documents that the
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agency has compiled and submitted as 'the' administrative record." Thompson v. US Dept. Of
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Labor, 885 F.2d 551, 555-556 (9th Cir. 1989). All documents considered by an agency, either
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directly or indirectly, are part of the record available for the Court's review and regardless of
whether they are designated in 'the administrative record' proffered by the agency. Id.
ARGUMENT
1. The Record of Decision signed by Mr. Laverdure is void and should be vacated; Mr.
Laverdure was not appointed by the President or confirmed by the Senate and,
therefore, he was not authorized to take land into trust for the lone Indians.
The Appointments Clause ofArticle II ofthe United States Constitution reads as follows:
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"[The President] shall nominate, and by and with the Advice and Consent of the Senate,
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shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall beestablished by Law: butthe Congress may by
Law vest the Appointment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments."
U. S. Const., Art. II, 2, cl. 2.
"The Constitution, for purposes of appointment... divides all its officers into two
classes." United States v. Germaine, 99 U. S. 508, 509 (1879). As stated by the Supreme Court in:
"Principal officers are selected by the President with the advice and consent of the Senate.
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Inferior officers Congress may allow to be appointed by the President alone, by the heads of
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departments, or by the Judiciary." Buckley v. Vallejo, 424 U.S. 1, 132 (1972). Principal Officers
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is an appointee who exercises "significant authority pursuant to the laws of the United States" or
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"perform[s] a significant governmental duty exercised pursuant to a public law."
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The Secretary of Interior and the Assistant Secretary of Interior for Indian Affairs are
"principal officers" of the United States which require a Presidential appointment and a Senatorial
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confirmation. When deciding whetheror not to take land into trust, and out of Statejurisdiction,
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they are obviously exercising "significant authority pursuant to the laws of the United States"
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including the Indian Reorganization Act of 1934 and the Indian Gaming Regulatory Act" of 1989.
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In fact, in our Federal system, it hard to imagine a more important authority or power granted to
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the Secretary of Interior and Assistant Secretary of Interior for Indian Affairs. ChiefJustice
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Roberts during the Supreme Court hearing in Carcieri emphasized the magnitude of this
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important obligation
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"[W]e are talking about an extraordinary assertion of power. The Secretary gets to take
land and give it whole different jurisdictional status apart from State law and all - wouldn't you normally regard these types of definitions in restrictive way to limit that
power instead ofsaying whenever he wants to recognize it, then he gets the authority to
say this is no longer under Rhode Island jurisdiction; it is now under my jurisdiction?"
(SC Tr. at 36.)

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This "extraordinary assertion of power" can only be exercised by the Secretary of Interior
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or the Assistant Secretary of Interior for Indian Affairsor other primary officer appointed by the
President and confirmed by the Senate. Interim acting Assistant Secretary Laverdure was not
appointed by the President and was not confirmed by the Senate. Therefore he lacked the
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authority to transfer the Parcels into trust, and remove them from State and local jurisdiction, for
the benefit of lone Indians. Furthermore, it did not take long for Mr. Laverdure to abuse the
authority he thought he was given. Mr. Laverdure's attempt to take the Parcels into trust for the
lone Indians reverse and was directly contrary to the position of the last appointed and confirmed
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Assistant Secretary of Interior for Indian Affairs.

While Larry Echohawk was Assistant Secretary of Interior for Indian Affairs, the BIA and
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DOI had declined to take the subject lands into trust because the Solicitor's Office determined
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that the lone Band was not a federally recognized or restored tribe entitled to trust land under the
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IRA or a casino under IGRA. (See AR007112). But that position suddenly changed shortly after
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Assistant Secretary Echohawk resigned in April 2012 and appointed Defendant Donald E.
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Laverdure as interim acting Assistant Secretary for Indian Affairs. One month later Defendant
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Laverdure, reversed the opinion by the Solicitor Bernhardt and the position of by Assistant
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Secretary Echohawk and issued the ROD purporting to take the parcels into trust.
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It should be noted that, before being "appointed" as interim acting Assistant Secretary,
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Mr. Laverdure worked on and promoted the lone Indian application within the Department. (See
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AR 8575, 8771, 8805, 8813, 8816, 9745-9759, 9890, 9907 and 10040.) Despite Mr. Laverdure's
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best efforts, he could notconvince Assistant Secretary Larry Echohawk to change hisdecision,
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supported by Solicitor Bernhardt's opinion, not to take the land in trust for the lone Indians. But
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ittook less than a month after being appointed as interim acting Assistant Secretary, for Mr.
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Laverdure to reverse Assistant Secretary Echohawk's position and Solicitor Bernhardt's opinion
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and sign the ROD taking the land into trust for the lone Indians.
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Furthermore, Mr. Laverdure ignored the final judgment and judge Karlton's decision in
lone Band v.Burris. Nor did he follow the Supreme Court's directive in Carcieri. Instead, he did
just the opposite in apparent open defiance of the Supreme Court's test. Contrary to Carcieri, Mr.
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Laverdure claimed that the IRA phrase "recognized tribe now under federal jurisdiction" was
ambiguous and therefore "the Secretary must interpret that phrase in order to continue to exercise
authority delegated to him under section 5 of the IRA." This conclusion is directly contrary to the
Supreme Court's Carcieri decision which held that the phrase"recognized tribe now under
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federal jurisdiction" was not ambiguous and the Secretary's interpretation was not needed or
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entitled to deference.
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Mr. Laverdure was certainly aware of the Carcieri decision and important limit on the
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Secretary of Interior's power to take land into trust. For example, on July 12, 2011, just nine
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months before his "appointment," Mr. Laverdure testified before Congress in support several
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Bills to "restore" the Secretary of Interior authority to take land into trust for Indian tribe. The
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collected of proposed Bills supported by Mr. Larverdure were known as the "Congressional
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Carcieri fix." Although Congress did not pass the Carcieri fix, when he got the opportunity, Mr.
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Laverdure immediately tried to put the "fix" in the ROD for the Indians near lone.
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Defendant Laverdure's tenure as interim acting Assistant Secretary lasted five months,
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from April 2012 until September 2012, when current Assistant Secretary of interior for Indian
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Affairs, Kevin Washburn was appointed by President Obama and confirmed by the Senate. Mr.
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Laverdure left the DOI and returned to his tribe, the Crow Tribe of Montana (Ties the Bundle
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Clan), shortly after Secretary Washburn was confirmed bythe Senate. Unfortunately, he left the
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illicit ROD and this litigation as his legacy. Mr. Laverdure did not have the authority to take land
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into trust for the lone Indians. The ROD that he issued is void and should be vacated.
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DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:l2-cv-01748 TLN CMK)

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2. The ROD is not in compliance with the federal fee-to-trust regulations. (2 CFR Part
151.) It should be vacated and set-aside unless until brought into compliance.
In his rush to put the Parcels in trust for the lone Indians, Mr. Laverdure failed to fully
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comply with 25 CFR Part 151 when he reviewed and approved the ROD. Forexample, the notice
of the ROD was published in the Federal Register on May 30, 2012just six days after it was
signed by the Secretary. (77 Fed.Reg. 31871-31872.). The ROD and the notice of publication are
incomplete and premature because they failed to include the required Title Examination for public
review and comment. (25 C.F.R. 150.11,151.12(b), 151.13 and 151.15.) The ROD should be
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vacated unless and until full notice, including the title document, is provided for public review
and scrutiny, and Title Examination is evaluated by the Secretary of Interior.
Defendants acknowledge that, to acquire land in trust for a tribe, the DOI and Secretary
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must first comply with the regulations in 25 C.F.R. Part 151 in addition to the mandates of the
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IRA. (ROD at 3.) But despite this fact, as revealed in the ROD and AR, the DOI and Mr.
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Laverdure failed to comply with the applicable regulations, including (UF 52-62):
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Section 151.10(a) requires the Secretary to consider if there is any statutory authority for
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the proposed acquisition and, ifso, any limitations contained in such authority. There is
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no statutory authority for the Secretary to take lands into trust on behalfof the lone
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Indians, which was not a federally recognized tribe in 1934.
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Section 151.10(b) requires the Secretary to consider ifthere isa need for the acquisition
of additional lands. The ROD states that the lone Indians currently have no reservation or
trust lands. (ROD at 59.) But the ROD does not address the fact that the lone Indians
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have occupied, and currently own several properties in Amador County near lone which
has been sufficient to support their "needs."
Section 151.10(c) requires the Secretary to consider the purpose for which the land will be
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used. The description in the ROD is incomplete because, although it outlines the casino
project, if fails to reveal or study that the project also includes the construction of 162
private residences on the Parcels. (See ROD at 59-60.)
Section 151.10(e) requires the Secretary and DOI to consider the impact on State and local
government if the land is acquired in "unrestricted fee status" and is removed purpose
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from the tax rolls. There is no evidence offered in the ROD that the Parcels will be
acquired in "unrestricted fee status" and therefore eligible to be exempt from State and
local tax. If not acquired in "unrestricted fee status", the Parcels remain subject to tax.
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The ROD's reliance on a "voided" Municipal Services Agreement (ROD at 60) to support
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the contention that the tribe is obligated to reimburse the County of Amador is
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inappropriate and disingenuous. There is no current requirement for the lone Indians to
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reimburse State and local government for lost tax revenue if the FTT transfer is approved.
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will be incurred by government to provide governmental services to the project.
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Also, even if taxes were reimbursed, the ROD does do not discuss the additional costs that
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Section 151.10(f) requires the Secretary to consider jurisdictional problems and possible
conflicts of land use. The use of the Parcels for a casino and related projects is
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inconsistentwith local land use and zoning rules. This issue is not discussed in the ROD.
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And the "voided" Municipal Services Agreement mentioned in the ROD does not exempt
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the Parcels from State and local land use and zoning rules.
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Section 151.10(g) requires the Secretary to consider whether, if the land is taken in trust,
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the BIA is equipped to discharge the additional responsibilities resulting from the
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acquisition of the land in trust status. The ROD does not address this issue.
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Section 151.10(h) requires the Secretary to consider whether atribe has provided
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sufficient, specific information to insure that the potential environmental impacts of the
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project are considered before the land is taken into trust. The ROD does not address this
2
issue and it notclear if the lone Band provided the required information.
Section 151.11 (c) requires the tribeto provide a plan to Secretary which specifies the
anticipated economic benefits associated with the proposed use. This issue is not
5
addressed in the ROD and it notclear if the lone Indians provided the required plan.
6
7
Section 151.13 requires the tribe to furnish title evidence meeting the Standards For the
Preparation of Title Evidence in LandAcquisitions by the UnitedStates issued by the
United States Department of Justice. The title evidence should list all liens, encumbrances
10
and title infirmities on the land to be acquired. And those encumbrances, liens and
11
infirmities must be removed prior to acquisition if they make title to the land
12
unmarketable.
This issue is not addressed in the ROD and it not clear if the information
13
14
15
was provided or if the Parcels were cleared of liens, encumbrances or infirmities.
The Federal Defendants' failure to comply with their own regulations when processing the
16
ROD is arbitrary, capricious and contrary to law. The ROD does not satisfy the requirements of
17
25 CFR Part 151. It is at best incomplete and should be vacated.
18
19
3. Neither Mr. Laverdure, not the Department of Interior, had the authority to take
privately owned land into trust for the lone Indian free from State and local
regulatory jurisdiction. To do so violates the principles of Federalism.
20
21
22
The State of California entered the Union on September 9, 1850, on an equal footing with
all other States. And, as is the case with all States, public domain lands in California were to be
23
transferred to eitherthe State or into private ownership subject to Statejurisdiction and
24
regulation. (UF 12 & 13.) In fact, California's Act ofAdmission mandated that California shall
25
never interfere with the primary disposal of public domain lands bythe United States. (9 Stats.
26
452.) In addition, in 1864, Congress limited the number of Indian Reservations that could be
27
created in California from public domain lands to four reservations. (UF 14) The remainder ofthe
28
15

public domain land was to be transferred to the State or sold into private ownership, subject to
2
State and local regulation, for settlement and development.
The undisputed facts in this case are that the Parcels are privately owned by third parties
who hope to partner with the lone Indians and benefit financially from the construction and
5
management of a mega-casino in the town of Plymouth. The DOI's and Mr. Laverdures's
decision to take the privately owned Parcels into trust in favor of the lone Band, free from State
and local regulation, as though it is public domain land, is an unconstitutional infringement on
State and local police power to regulate its citizenry for the benefit of all. It is also a violation of
10
11
the equal footing doctrine and the principles of federalism outlined by the Supreme Court in
Hawaii v. Office ofHawaiian Affairs, and embodied in the Constitution. The ROD is an
12
overreach of the limited authority Congress gave to the Secretary under the IRA to restore allotted
13
14
reservation land or to create reservation from public domain land. The DOI and Mr. Laverdure
15
acted outside the scope of the Secretary's authority and beyond the Secretary's discretion that
16
they had the authority to take private fee lands in trust for the lone Indians.
17
18
19
Defendants have no authorityto create new federal public domain land or federal Indian
reservation land in the State of California. California, like all other states, retains its regulatory
jurisdiction over all lands not specifically retained or reserved as public domain land of the
20
United States within its exterior boundaries including the right to regulate and tax lands that have
21
22
been conveyed into private ownership. Defendants attempt to create a reservation for the lone
23
Indians in the State of California on privately held lands, currently regulated by the State and
24
local governments, by accepting any privately owned lands into federal trust status pursuant to 25
25
U.S.C. 465 for the lone Indians is unconstitutional and is contrary to the principles of
26
federalism summarized in the Supreme Court's decision in Hawaii v. Office ofHawaiian Affairs,
27
129 S Ct. 1436 (2009). Furthermore atribe does not have the authority to unilaterally create a
28
16


reservation from fee owned lands. City ofSherrill v. Oneida Indian Nation, 544 U. S. 197 (2005).
2
See also Summa Corporation v. California ex rel. State Lands Commission 467 U.S. 1231 (1984)
The creation of a reservation in favor of the lone Indians is also contrary to the 1864 Act
of Congress which specifically stated that no more than four reservations could be established
5
6
within the State of California (13 Stat. 39). And it is contrary to the Treaty of Guadalupe Hidalgo
and the Act of 1851 - which confirmed private titles, separate from public domain lands, of lands
previously conveyed into private ownership by Spain or Mexico.
9
10
11
After California became a sovereign State of the United States in 1850, on an equal
footing with all other States, it received regulatory and police power jurisdiction over all property
within the State - including federally owned public domain. But, until public domain land is
12
conveyed to the State or into private ownership, the United States retains authority over public
13
14
domain lands. Kleppe v. New Mexico 429 U.S. 873 (1976). Thus the United States has the
15
authority, in some circumstances, to create an Indian reservation from retained public domain
16
lands. By definition, an Indian reservation is created by the Secretary or an authorized federal
17
land officer executing an order withdrawing specific parcels from public domain land and
18
reserving it for the specific purpose of the withdrawal order. See US. v. Midwest Oil Co. 236
19
U.S. 459 (1915).

20
After public domain property is conveyed to the State or into private ownership, the
21
22
United States no longer has authority to create an Indian reservation over non-public domain
23
lands. In the case of Hawaii v. Office ofHawaiian Affairs, 129 S Ct. 1436 (2009), a unanimous
24
Supreme Court held that after federal public domain lands pass out of federal ownership to a
25
State, they cannot be restored to federal jurisdiction by a federal act that purports to change the
26
nature ofthe original grant to the State. As aconsequence, once public domain land is conveyed
27
by the United States to aState, or into private ownership subject to the police and taxing power of
28
17


1
the State, it cannot be returned to public domain status as part of a FTT transfer under the IRA.
The Supreme Court concluded that "itwould raise grave constitutional concerns" ifCongress
sought to "cloud Hawaii's title to its sovereign lands" after it had joined the Union. "We have
emphasized that Congress cannot, after statehood, reserve or convey...lands that have already
5
been bestowed upon a state..." Hawaii v. Office ofHawaiian Affairs, supra.

Likewise here, the State has had regulatory authority over the Parcels since 1850. The
DOI and Mr. Laverdure do not have the authority to create a reservation or Indian trust land free
from State regulation that has been imposed on the Parcels from Statehood. It would raise "grave
10
11
constitutional concerns" if DOI is allowed "to cloud" California's sovereign right to regulate and
exercise jurisdiction over land within its boundaries after joining the Union. The DOI "cannot,
12
after statehood, reserve or convey...lands that have already been bestowed upon a state
13
14
4.
The lone Indians are not a "restored tribe" and the Parcels are not "restored lands'
15
as these terms are used in the Indian Gaming Regulatory Act; the lone Indians and
Parcels are not eligible for gaming under IGRA.
16
The trust acquisition proposed by the Secretary in the ROD is intended to facilitate the
17
construction of a major gambling casino, hotel and related facilities on the Parcels. But the
18
Parcels are not eligible for Indian gaming. The Indian Gaming Regulatory Act (IGRA) prohibits
19
Indian gaming on land acquired after 1988 unless one of the statute's narrow exceptions applies.
20
(29 U.S.C. 2701-2721). Since, under the ROD, the Parcels will be acquired in trust for the
21
22
23
24
lone Indians after 1988, gaming is prohibited on the Parcel, unless one of the IGRA exceptions
applies. The IGRA exceptions do not apply.
The DOI"s determination in the ROD that the Parcel qualified as Indian lands eligible for
25
gaming under the IGRA "restored lands for a restored tribe" exception lacks substantial
26
justification and is inconsistent with the facts and prior positions ofthe DOI. The lone Indians
27
are not a "restored tribe" and the Parcels are not "restored lands' as these terms are used in the
28
18


IGRA. It is also beyond the authority of the Secretary to make this determination. IGRA requires
2
the National Indian Gaming Commission (NIGC), not the Secretary, to make these
determinations. The DOI's determination in the ROD that the lone Indians are a "restored tribe"
and the Parcel is "restored lands" under IGRA was an abuse of discretion and is arbitrary,
5
capricious and contrary to the law. It should be vacated by this Court.
The DOI's determination in the ROD, and the 2006 Artman opinion it revived, that the
Parcels are restored Indian Lands for gaming purposes is contrary to the facts and IGRA and it is
contraryto previous DOI opinions and previous DOI representations made in other court cases.
10
See Muwekma Ohlone Tribe v. Salazar (USDC D.C. No. 03-1231 (RBW).
11
The lone Indians are not a "restored" tribe for the purpose of IGRA. They were never
12
federally recognized nor terminated. Therefore they cannot be restored to federal recognition. .
13
14
Nor are the Parcels restored lands. The lone Indians are not landless. They have a potential
15
ownership interest: (1) in 40 acres near lone; (2) property in the City of lone, (3) commercial
16
property in the City of Plymouth, and (4) five parcels totaling 47 acres adjacent to Plymouth.
17
18
19
Based on this unlawful determination the Secretary approved the FTT transfer of the
Parcels under the IRA. And the NIGC and its officials, apparently, pursuant to the MOA with the
DOI, improperly accepted the FTT transfer as a "restored lands" determination for IGRA
20
purposes. As a result of this unlawful determination, if the Secretary's approval is not vacated,
21
22
and the NIGC accepts it as a restored lands determination for IGRA purposes, the lone Indians
23
may beable to build aClass III casino on the Parcels which will cause major environmental
24
impacts in and around the City of Plymouth and Amador County and harm to the citizens of the
25
City of Plymouth and Amador County.
26
///
27
///
28
19


1
2
5. The Defendants failed to comply with NEPA before approving the fee-to transfer in
the ROD and approving the construction of a major casino on the Parcels.
The Secretary, DOI, BIA and NIGC failed to consider and/or take a "hard look" at the
environmental and socio-economic impacts of his proposed action as required by the National
Environmental Policy Act. (NEPA; 42 U.S.C. 4321 et seq.) "Hard look" means that such
actions should not cause undue damage to the human and natural environment of the designated
and surrounding areas. The proposed action in the ROD is contrary to law because its
implementation would cause permanent and irreparable harm to the environment, including the
9
10
human environment as defined in NEPA; it would intrude upon the will of the people of the
11
County of Amador who voted 84.6% against permitting another casino in the county and
12
community. It would create permanent and perpetual regulatory, jurisdictional and tax revenue
13
problems for the State and local governments, and would contribute to the ongoing economic
14
15
detriment of the State and local economies.
The Secretary, DOI and BIA completelyfailed to consider or adequately consider many of
16
these impacts. The Secretary, DOI, and BIA also failed to apply a fair and unbiased analysis of
17
18
the jurisdictional and human impacts caused by the ROD as required by NEPA. The Final
19
Environmental Impact Statement (FEIS) wrongfully assumed that non-Indian interests did not
20
require equal consideration against the interests of the lone Indians when considering the
21
environmental impacts. The Secretary, DOI and BIA ignored or failed to fully consider or
22
adequately address the traffic, water quality, airquality and other negative impacts of the
23
proposed casino and related facilities in the FEIS. The NIGC completely failed to study or
24
consider the environmental impacts of the proposal in an Environmental Assessment and EIS as
25
26
required by NEPA with respect to its restored tribe and restored lands determinations for the lone
27
Indians. The approval ofthe EIS for the FTT by the DOI, BIA and Secretary should be vacated
28
and the EIS should be updated and recirculated for comment and resubmitted for approval. And
20
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONTO

DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (CaseNo. 2:12-cv-01748 TLNCMK)

1
2
3
the NIGC should be required to comply with NEPA prior to considering and making the restored
tribe and restored lands determinations.
The Secretary's and DOI's actions in approving the FTT transfer and certifying the EIS,
and the NIGC's failure to prepare an EIS for its "restored tribe" and "restored lands"
5
6
7
8
9
10
11
determinations, were in violation of the National Environmental Policy Act (NEPA) 42 U.S.C.
4321 et. seq. And it's implementing regulations, 40 C.F.R. 1500 ET. seq.
The NEPA requires that "all agencies of the Federal Government shall... include in every
recommendation or report on...major Federal actions significantly affecting the quality of the
human environment, a detailed statement by the responsible official." 42 U.S.C. 4332(2) (c).
The proposed casino project approved as part of the ROD has many inherent well
12
documented negative impacts that threaten this small community with among other things:
13
14
increase in traffic congestion and safety concerns on rural roads in the area, increase in air
15
pollution, increase in water pollution, overuse of limited water resources used by all residents in
16
the area for drinking water and irrigation and potential increases in crime. Some of these impacts
17
were identified in the EIS; none were adequately considered, mitigated or resolved.
18
19
The DOI, the BIA and the Secretary were required to take a "hard look" at the
environmental consequences of the proposed action in the ROD. This required the Secretary to:
20
(1) make a good faith effort to take environmental values into account; (2) to provide an
21
22
23
24
environmental full disclosure to the members of the public and (3) protect the integrity of the
decision making process by insuring that problems are not ignored.
In this case it was not possible for the BIA to take a"hard" and fair look at the
25
environmental impacts because the BIA only represents the interests of the Indian tribe as those
26
interests are defined bythe Tribe submitting the fee to trust application. Furthermore, the
27
28
inability for the BIA to be impartial, when evaluating the impacts of the FTT transfer and a
21
DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:l2-cv-OI748 TLN CMK)

1
related casino project, is compounded by the MOU between the BIA and the tribes to facilitate
FTT transfers. Despite these facts, under the Departmental Manual of the BIA for the application
of NEPA in the FTT process, the DOI allows the BIA, which processes, administers, and
approves the tribes FTT application to act as "lead agency" for the completion of NEPA
5
6
7
documentation . This presents an inherent conflict of interest in terms of producing a fair and
unbiased report which takes into consideration the needs of the surrounding communities.
The regulatory and cumulative jurisdictional impacts of removing hundreds of acres from
9
10
11
the sovereign control of state and local governments have not been adequately addressed in the
FEIS. The FEIS also fails to provide support for the ROD's conclusion that 228.04 acres in trust
is necessary to satisfy the tribe's goal of self-determination and other similar needs of the tribe.
12
And the FEIS fails to adequately assess the impact this determination has on the local
13
14
communities which is required by 25 C.F.R. 151.10 (e) and the NEPA analysis.
The FEIS fails to adequately address the concerns of the local communities. The ROD
15
16
does not adequately address the lone Band's application in terms of the factors deemed partof the
17
"justifiable expectations" of the local non-Indian residents or state and local governments
18
identified in the Sherrill decision as disruptive.
19
The failure of the DOI and the Secretary to take a "hard" look at, and adequately address,
20
the adverse environmental and socio-economic impacts of all the anticipated impact of the project
21
22
approved in the ROD is arbitrary, capricious, an abuse of discretion, and otherwise not in
23
accordance with law. Furthermore, the Secretary's decision to change his position by approving
24
an EIS, a restored lands opinion and project that he previously rejected in 2009 is arbitrary,
25
capricious, an abuse of discretion, and otherwise not in accordance with law. 5 U.S.C. 706.
26
///
27
///
28
22


1
2
3
6. Plaintiffs have standing to bring this lawsuit to protect their community from the
adverse impacts of the fee-to-trust transfer and the construction of a casino.
Plaintiffs have standing to protect the principle of federalism.
The Supreme Court has held that individual or citizen groups may challenge a law or a
governmental actions on that basis that it contravenes the principals of federalism, Bond v,
5
6
United States,\3\ S.Ct. 2355 (2011). Plaintiffs have standing to challenge the Secretary's
attempt to remove land from State and local jurisdiction and give it to the lone Indians on the
basis that it violates equal protection and the principles of federalism.
10
11
Furthermore the Federal Defendants' contention that the Plaintiffs lack standing in this
case is completely without merit in light of the 2012 Supreme Court decision in Match-Be-NashShe-Wish Band ofPottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012) ("Patchak"). In that
12
case, David Patchak brought an action under the APA alleging that the Department of Interior
13
14
lacked the authority to acquire property in trust for an Indian tribe, known as the Match-Be-Nash-
15
She-Wish Band of Pottawatomi Indians, because the tribe was not a federally recognized tribe in
16
1934 when the IRA was enacted. Carcieri v. Salazar, 555 U.S. 379 (2009). The tribe was
17
formally recognized in 1999. In 2005, in response to a fee-to-trust application by the tribe to
18
acquire land for gaming purposes, the DOI announced that it would take land into trust for the
19
tribe to construct a casino. Mr. Patchak initiated litigation under the APA alleging that taking
20
land into trust for Indian gaming"will cause him economic, environmental, and aesthetic harm"
21
22
23
as a property owner near a casino. Patchak, supra. 132 S.Ct. at 2203 & 2210.
Plaintiffs' interest in the environmental and economic well-being of Plymouth, Amador
24
County and the State of California are identical to Mr. Patchak and among the interests to be
25
considered under 25 C.F.R. 151.10(0, 151.10 (h) before land is placed into trust. See also
26
Preservation ofLos Olivos v. Department ofInterior, 635 F.Supp.2d 1070 (CD Cal. 20080
27
Community group had standing to challenge a fee-to-trust.
28
23


CONCLUSION
2
For the forgoing reasons, and based on the Plaintiffs' Statement of Undisputed Facts
submitted with this opposition, Plaintiffs request that the Defendants' motions for summary
judgment on Plaintiffs' second, third, fourth and fifth claims for relief be denied and that, instead,
5
summary judgment on those claims be entered in Plaintiffs' favor. Fed. R. Civ. Proc. 56(0-
Dated: February 17,2016
9
10
Respectfully Submitted,
11
/s/Kenneth R. Williams
12
KENNETH R. WILLIAMS
13
Attorney for Plaintiffs

No Casino in Plymouth and
Citizens Equal Rights Alliance
14
15
16
17
18
19
20
21
22
23
24
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26
27
28
24


NCIP v. Jewell - MSJ Opp 2-5 CA 021715 PDF

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Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 1 of 24

KENNETH R. WILLIAMS, State Bar No. 73170

980 9th Street, 16th Floor

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

NO CASINO IN PLYMOUTH and CITIZENS

Case No. 2:12-cv-01748-TLN-CMK

EQUAL RIGHTS ALLIANCE,

SALLY JEWELL, in her official capacity as

SECOND, THIRD, FOURTH AND FIFTH

Time: 2:00 p.m.

Place: Courtroom No. 2

Judge: HonorableTroy L. Nunley

Plaintiffs respectfully submit this opposition memorandum in response to Defendants'

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 2 of 24

Al Gore, almost one hundred years later, provided a "modernized" version:

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS' MOTIONS FORSUMMARYJUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 3 of 24

Plaintiffs' favor on all the claims. Fed. R. Civ. Proc. 56(0

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 4 of 24

STATEMENT OF THE CASE

apply against the lone Band.

The Plaintiffs' Amended Complaint includes five causes ofaction:

DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 5 of 24

et seq. seq.; 40 C.F.R. 1500 et seq. seq.

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 6 of 24

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 7 of 24

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 8 of 24

Defendants is a classic "post-hoc rationalization" and justification of a previous decision already

was signed by Mr. Laverdure

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 9 of 24

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 10 of 24

U. S. Const., Art. II, 2, cl. 2.

"perform[s] a significant governmental duty exercised pursuant to a public law."

(SC Tr. at 36.)

DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748 TLN CMK)

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 11 of 24

Assistant Secretary of Interior for Indian Affairs.

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 12 of 24

DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:l2-cv-01748 TLN CMK)

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 13 of 24

Indians, which was not a federally recognized tribe in 1934.

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 14 of 24

private residences on the Parcels. (See ROD at 59-60.)

will be incurred by government to provide governmental services to the project.

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 15 of 24

Preparation of Title Evidence in LandAcquisitions by the UnitedStates issued by the

was provided or if the Parcels were cleared of liens, encumbrances or infirmities.

25 CFR Part 151. It is at best incomplete and should be vacated.

transferred to eitherthe State or into private ownership subject to Statejurisdiction and