United States District Court, D. Kansas
[Copyrighted Material Omitted]
For Wyandotte Nation, a federally-recognized Indian tribe, Plaintiff, Counter Defendant: William W. Hutton, LEAD ATTORNEY, Kansas City, KS; Benjamin J. Lambiotte, GARVEY SCHUBERT BARER, Washington, DC; David McCullough, PRO HAC VICE, Doerner, Saunders, Daniel & Anderson, LLP - Norman, Norman, OK.
For Kenneth L. Salazar, in his official capacity as Secretary of the United States Department of the Interior, Defendant, Cross Defendant: Kristofor R. Swanson, LEAD ATTORNEY, U.S. Department of Justice - Environment & Natural Resources Division, Washington, DC.
For State of Kansas, Intervenor Defendant, Cross Claimant, Counter Claimant: Christopher J. Sherman, Mark S. Gunnison, LEAD ATTORNEYS, Payne & Jones, Chtd., Overland Park, KS; Jeffrey A. Chanay, Stephen O. Phillips, Office of Attorney General - Topeka, Topeka, KS.
JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.
MEMORANDUM AND ORDER
Plaintiff Wyandotte Nation, a federally recognized Indian tribe (" the Nation" ), filed this lawsuit against Kenneth Salazar, Secretary of the United States Department of the Interior (" the Secretary" ), seeking an order fro this Court compelling the Secretary to accept title to certain land and hold it in trust for the Nation's benefit, as specifically required by Public Law 98-602, 98 Stat. 3149 (1984) (" P.L. 98-602" ), under both the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701(a) and the Mandamus Act, 28 U.S.C. § 1361. The State of Kansas (" the State" ) was permitted to intervene as of right under Fed.R.Civ.P. 24(a). This matter is before the Court on the Nation's Motion for Summary Judgment (Doc. 60) and the Secretary and State's cross-motions for summary judgment (Docs. 66, 69). The Court heard oral arguments on March 14, 2013, at which time the Secretary was directed to supplement the Administrative Record and the matter was taken under advisement. For the reasons explained in detail below, the Court denies the Nation's motion and grants in part and denies in part the Secretary and the State's cross-motions, retaining jurisdiction over the case
until the agency issues a final decision on the Nation's pending land-into-trust application.
I. Statutory and Regulatory Background
A. Land-Into-Trust Statutes Generally
If authorized by an act of Congress, the Secretary of the Interior may hold title to land in trust for the benefit of an Indian tribe. Generally, such trust acquisition statutes fall into one of two categories. " Discretionary" acquisitions are those for which Congress has delegated to the Secretary the determination of whether the acquisition is appropriate under the circumstances. The most common discretionary acquisition statute is the Indian Reorganization Act of 1934. Department of the Interior regulations set forth factors the Secretary is to consider in exercising his discretionary authority to acquire land in trust. In contrast, " mandatory acquisitions" are those for which Congress has directed the acquisition of land into trust, often identifying a specific parcel or certain eligibility requirements for the land.
When the acquisition statute is " mandatory," most of the regulatory factors applicable to discretionary acquisitions do not apply. For example, the notice and comment provisions requiring that the Department notify state and local governments of the fee-to-trust application are not applicable, and compliance with the National Environmental Policy Act is not required. Although not required to consider the factors listed in Department regulations, the Secretary still interprets the regulations as requiring public notice of a decision to acquire land in trust, and internal Department guidelines require the Secretary to conduct a contaminant survey on the lands. While the Department of Interior's Assistant Secretary for Indian Affairs has generally delegated decision-making authority for fee-to-trust applications to the Department's regional offices, the Assistant Secretary has not delegated that authority with respect to applications that seek to have the United States accept land in trust for gaming purposes.
B. Public Law 98-602
Congress passed Public Law 98-602 in 1984. The acquisition statute is mandatory, and
provid[ed] for the appropriation and distribution of money in satisfaction of judgments awarded to the Wyandottes by the Indian Claims Commission and the Court of Claims. The judgments were compensation for lands in Ohio that the Wyandottes had ceded to the United States in the 1800s. Under the 1984 law, Congress directed that 20% of the allocated funds be used and distributed in accordance with a series of directives. Key among those directives . . . was one providing that a sum of $100,000 of such funds shall be used for
the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe.
The statute states, in relevant part,
(b) Twenty percent of the funds allocated to the Wyandotte Tribe of Oklahoma pursuant to section 103(b) shall be used and distributed in accordance with the following general plan:
(1) A sum of $100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe. . . .
II. Undisputed Material Facts
Because the Nation's suit involves claims under the APA, " [t]he task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court."  " As all material facts are within the administrative record, no material issues of fact are in dispute."  The record review principle applies with equal force to claims of undue delay brought under 5 U.S.C. § 706(1), as in this case. Because the Secretary has yet to make a final decision on the Nation's application, the parties have filed motions for summary judgment to address the merits. Judicial review of the Nation's Complaint, however, is still limited to the agency record lodged by the Secretary. Accordingly, the Court does not consider the two extra-record affidavits attached to the Nation's motion for summary judgment, as they are not included in the Administrative Record lodged by the Secretary.
In November 1992, the Nation purchased approximately 10.5 acres of land near Park City, Kansas (" Park City Land" ) with $25,000 withdrawn from its main investment account. Park City is located north of Wichita along U.S. Interstate Highway 135.
On January 21, 1993, the Nation submitted an application requesting the Department of the Interior (the " Department" ) take the Park City Land into trust for the nation pursuant to Public Law 98-602. On February 19, 1993, the Tulsa Field Solicitor's office sent a memorandum to the Director of the Muskogee Area Office stating that Public Law 98-602 did not impose a mandatory duty on the Secretary to take the Park City Land into trust and
that the monies awarded to the Nation under Public Law 98-602 were not in settlement of a land claim. The memorandum notes that, at the time, the Nation had agreed to pursue the application under the Secretary's discretionary authority, making the question relating to Public Law 98-602 " moot." 
In December 1995, due to the Solicitor's opinion, the Nation withdrew its request to have the Park City Land taken into trust, electing instead to have property in Kansas City, Kansas (the " Shriner Tract" ) taken into trust under the mandatory provisions of Public Law 98-602. As discussed further below, the Department ultimately accepted in trust for the Nation the Shriner Tract. That decision and the Nation's planned use for the land were subject to more ...