POLO vs The US Department of Interior – It’s All About Standing

As I have said all along, US courts will be hammering out and shaping the relationship between sovereign gaming tribes and local governments and communities for years to come.

We have a case here in the Valley that has been going on for over 3 years now and a recent decision has given POLO a minor victory.

Here is a brief background to bring up to speed those of you not familiar with the case.

In Nov of 2000, the Chumash submitted an application to the BIA to take 6.9 acres across the street from the casino into trust to build a cultural center, a museum, a 3.5 acre park to buffer the archeological findings on the site and a two-story commercial retail building to generate funds to upkeep the center, park and museum.

5 years later in Jan of 2005, the BIA approved the application.

In Feb of 2005, POLO and POSY along with two other local groups, filed a notice of appeal of the BIA’s decision.

In Feb of 2006, the Internal Board of Indian Affairs (IBIA) dismissed the POLO/POSY appeal due to lack of standing.

Later in 2006 POLO/POSY filed suit against the US Dept of Interior seeking Federal review of the IBIA dismissal. Following this the DOI voluntarily remanded the case back to the IBIA because the BIA had inadvertently omitted documents from the administrative record transmitted to the BIA.

In July 2007, the IBIA again dismissed POLO/POSY for lack of standing.

Shortly after that, POLO/POSY filed a “First Amended Complaint”.

In May of this year the case went to Federal Court in Los Angeles where POLO/POSY claimed that the Indian Board of Appeals (IBIA) erred in dismissing their appeal due to lack of standing and requested that the Court not only reverse the IBIA dismissal but to direct the IBIA to issue an order granting them standing to pursue their appeal.

The Court handed down its decision about a week ago.

It was half a victory for POLO as the judge decided that the IBIA in making their decision, among other things, failed to “examine factors that may be relevant under their regulations” and thus threw it back in their lap for further review using a 5 point functional analysis as suggested by a judge from a previous case.

But the Judge also decided against POLO’s request that the Court direct the IBIA to grant them standing, saying that the Court is not empowered to do so.

POLO is touting this as a big win for them with Kathryn Bowen going as far as to say that "This judge has essentially said the IBIA would be hard pressed to not grant standing to P.O.L.O. and POSY under the IBIA’s own rules.”

Well, I guess I can’t really blame them for trumping it up a little as their victories are few and far between but reading the actual decision and determining what it means reveals that this will probably only amount to a bump in the road for the Chumash to take the 6.9 acres.

The Court made the following statements which contradict Mrs. Bowen’s optimistic outlook.

“The Court is not requiring the IBIA to take a more lenient approach to standing” and “the Court is not directing the IBIA to reach a different result”.

I’m not saying that the IBIA won’t ultimately determine that these groups have standing but, in my opinion, it still doesn’t look good for them to actually get to the point where they can appeal the BIA’s Jan 2005 decision to approve the Chumash’s application.

What this decision does accomplish, though, and it is precedent setting, is that it will require the IBIA to change the way they decide appeals in the future.

One of the things the IBIA asked the Judge to consider in this case was the many years of longstanding practices that they have used and that how in some cases they have used limited resources to “promote administrative economy” to make decisions concerning standing.

Those days are probably over for the IBIA and they will now probably have to “go by the book” when making these decisions.

So, basically, POLO/POSY Et al are right back where they were 3 years ago and the IBIA will take another look at whether they do indeed have standing focusing more on thier own regulations and other factors not previously taken into consideration.

The Federal Courts decision provided a great background on the Chumash’s endeavor to put the 6.9 acres into trust and I have used that background to put together a more detailed time line for those interested:

November 8, 2000 – Chumash submit an application to the BIA to take 6.9 acres across the street from the casino into trust. The initial proposal was to develop the land for tribal administration and community center. After it was discovered that the land held ancient Chumash burial grounds and an intact Chumash village the tribe revised the application to build a cultural center, museum, a 3.5 acre park to buffer the archeological site and a two-story commercial retail building to generate funds to upkeep the center, park and museum.

September 22, 2004 – The BIA issues a FONSI declaring that no EIS is necessary. The National Environmental Policy Act required the BIA to prepare a detailed Environmental Impact Statement (EIS) to assess the environmental impact the taking of the 6.9 acres into trust would have, but Federal regulations also allow agencies to conduct a less exhaustive Environmental Assessment (EA) beforehand to determine whether the proposed action will “significantly affect” the environment so as to require an EIS in the first place. The Chumash prepared an EA which the BIA adopted and disseminated for public comment. Based on the EA, the BIA issued the FONSI.

January 14, 2005 – The BIA approves the Chumash’s application. In its Notice of Decision, the BIA states that they took into consideration 1) the need of the Tribe for additional land; 2) the purposes for which the land will be used; 3) the impact on the State and it’s political subdivisions resulting form the removal of the land form the tax rolls; 4) jurisdictional problems and potential conflicts of land use which may arise; 5) whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of land in trust status; 6) whether or not contaminates or hazardous substances may be present on the property. Also in the Notice the BIA referred to a list of entities which it was sending the notice. The BIA stated “Should any of the below listed interested parties feel adversely affected by this decision, an appeal may be filed”
I don’t know if POLO/POSY et al were on that list.

February 22, 2005 – POLO/POSY and two other groups file a “Notice of Appeal” of the BIA’s decision. The appeal requested that the IBIA vacate the BIA decision to take the 6.9 acres into trust and remand the matter to the Pacific Regional Director. POLO/POSY and company stated their appeal is based on the following. 1) The BIA’s decision failed to comply with NEPA because its decision was based on an inadequate EA prepared by the Tribe and that an EIS was required. 2) The BIA failed to consider all the facts in its analysis of the factors for non-reservation acquisitions which include the potential for gaming purposes and that the BIA acted arbitrarily and capriciously. POLO/POSY cited assorted Federal Regulations relating to these statements.

February 8, 2006 – The IBIA dismisses POLO/POSY’s appeal due to lack of standing. (Determining standing is very complicated, at least to me anyway, but I have provided a link to the IBIA’s decision below for those wishing to try and decipher it all. Subsequently POLO/POSY filed suit against the US Dept of Interior and shortly after that the Court grants the Tribe’s motion to intervene in the action filed by POLO/POSY


September 26, 2006 – The Dept of Interior voluntarily remands the case back to the IBIA because the BIA had inadvertently omitted documents from the administrative record transmitted to the BIA.

October 6, 2006 – The Court remands the matter to the IBIA to allow them to reconsider their decision to deny POLO/POSY’s appeal due to lack of standing.

July 29, 2007 – The IBIA again dismisses the appeal due to lack of standing. Among other things, one of the criteria used by the IBIA to determine whether POLO/POSY had standing to appeal, and this is one of the things I have had a problem along with these groups, is if their views represented widespread public opinion which POLO/POSY claimed they had due to a few hundred letters sent to the BIA. The IBIA rejected POLO/POSY’s argument that they represented widespread public opinion. How refreshing. After the second dismissal by the IBIA, POLO/POSY filed a motion to seek summary judgment from the Federal Court that they do have standing to pursue their appeal. The Feds seek affirmance of the IBIA’s ruling that they don’t.

May 13, 2008 – The Court begins reviewing the case. POLO/POSY not only wants the Court to reverse the IBIA dismissal but they also want the Court to direct the IBIA to issue an order granting them standing to pursue their appeal.

July 7, 2008 – The Court decides that the IBIA in making their decision, among other things, failed to “examine factors that may be relevant under their regulations” and thus threw it back in their lap for further review using a 5 point functional analysis as suggested by a previous case. The Court also decides against POLO’s request that the Court direct the IBIA to grant them standing, saying that the Court is not empowered to do so.

So, that’s where we sit today and as I stated above, POLO/POSY are right back where they were 3 years ago and the IBIA will now take another look at the issue of standing using a different set of criteria.

I am pretty sure the above is correct and I am pretty sure as well that I will hear about it if it isn’t.. and that’s fine.

Here is the link to the IBIA’s decision:
http://www.ibiadecisions.com/Ibiadecisions/45ibia/45ibia098.pdf

And here is the link to the Federal Courts recent decision remanding the case back to the IBIA: http://www.polosyv.org/hotTopics/pdf/judgeMatzsDecision.pdf