No. 97-5659 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 JOHNNIE LOUIS McALPINE, PETITIONER v. UNITED STATES, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION SETH P. WAXMAN Acting Solicitor General LOIS J. SCHIFFER Assistant Attornev General EDWARD J. SHAWAKER LISA E. JONES Attornevs Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 I QUESTION PRESENTED Whether the Secretary of the Interior properly exercised his discretion in declining to take two parcels of land into trust for petitioner's benefit under Section 5 of the Indian Reorganization Act , 25 U.S.C. 465. (I) IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 No. 97-5659 JOHNNIE LOUIS McALPINE, PETITIONER v. UNITED STATES, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-18) is reported at 112 F.3d 1429. The order of the district court (Pet. App . 19-20) is unpublished. JURISDICTION The judgment of the court of appeals was entered on May 7, 1997. The petition for a writ of certiorari was filed on August 4, 1997. The jurisdiction of this "Court is invoked under 28 U.S.C. 1254(1). STATEMENT Petitioner challenges a determination by the Secretary of the Interior not to acquire in trust for his benefit land that he owns in fee. The Bureau of Indian two parcels of Affairs (BIA), applying the Department of the Interior's regulations governing the acquisition of Indian trust lands, found no sufficient reasons to place the parcels in trust. The Interior Board of Indian Appeals affirmed. Petitioner sought judicial dismissed petitioner's suit on two review. The district court grounds . The court first held that the Secretary's decisions whether to acquire lands in trust for Indians are committed-to agency discretion and, therefore, are not subject to judicial review. Alternatively, the court held that petitioner's claim failed on the merits. The court noted that the BIA had properly evaluated petitioner's request under the factors enumerated in the regulations, and had rejected petitioner's request only after concluding that those factors were not satisfied in this case. On appeal, Secretary's decision was decision on the merits. 1. The Secretary the Tenth Circuit, while holding that the subject to judicial review, affirmed that of the Interior has "been granted the authority, under Section 5 of the Indian Reorganization Act of 1934, 25 U.S.C. 465, to acquire real property in trust for the benefit of individual Indians and Indian Tribes. In 1980, the Department of the Interior issued regulations that, among other things, specify particular factors to guide the Secretary's resolution of land acquisition requests under Section 5. Those 3 factors include: (1) the existence of statutory authority for the acquisition; (2) the need of the individual Indian or the Tribe for additional land; (3) the purposes for which the land would be used; (4) if the land is to be acquired for an individual Indian, the amount of trust land already owned by or for his benefit, as well as the degree to which he needs assistance in handling his affairs; (5) the impact on the State and its political subdivisions that would result from the removal of the land from the tax rolls; (6) jurisdictional issues and potential conflicts of land use that may arise; and (7) whether the BIA could discharge the additional responsibilities resulting from the acquisition of the land. 25 C.F.R. 151.10.1 2. In 1988, petitioner acquired two parcels of land in Kansas by warranty deed. In 1990, he asked the Department of the Interior to take the parcels into trust status for his benefit. As authority for his request, petitioner relied not on Section 5 of the Indian Reorganization Act , but instead on an 1871 appropriations Act that provided, inter alia for the allotment of certain lands on the diminished Reservation of the Osage Indians in 1 Those regulations were originally codified at 25 C.F.R. Part 120a (1981) and were remodified in 1982 at 25 C.F.R. 151. See 47 Fed. Reg. 13,326, 13,327 (1982). In June 1995, the Department of the Interior revised the regulations to identify additional factors bearing on off-reservation acquisitions (25 C.F.R. 151.10), to formalize the Department's practice of notifyinq affected state and local governments of proposed acquisitions and opportunity for response (25 C.F.R. 151.11(d)) , and consultation process to resolve regulatory problems Tribes and States (ibid) . See 60 Fed. Reg. 32,874, providing an to establish a between Indian 32,877 (1995). Kansas. See Act of March In February 1990, the 4 3, 1871, 16 Stat. 557 (the Superintendent of the BIA's 1871 Act) .2 Osage Agency denied petitioner's application. The Superintendent initially concluded that the 1871 Act was no longer valid authority for the acquisition of trust lands. Pet. App. 22. The Superintendent also found that petitioner had not shown any need for his lands to be placed in trust status, that no compelling reason existed to take the lands off the local tax rolls, and that, because the lands were located outside the Osage discharge the additional the acquisition. `Ibid - . Reservation, the responsibilities BIA was not that would equipped to result from The BIA Area Director upheld the Superintendent's decision. The Area Director also concluded that-the 1871 Act was inapplicable to petitioner's request and, therefore, reviewed petitioner's request under Section 5 of the Indian Reorganization Act and its implementing regulations, 25 C.F.R. 151.10. The Area Director concurred with the Superintendent's findings that petitioner. had not demonstrated any need for the lands to be taken into trust and that the BIA was unable to assume the responsibility of managing the lands. Pet App. 22. In addition, the Area Director concluded that "the potential exists for jurisdictional problems and land use conflicts with the local governments. " Ibid -. 2 The 1871 Act provided that certain Osage Indians would be permitted entry "without cost, within the diminished reservation of the Osage Indians in Kansas, a tract of land * * * upon which such [persons] have heretofore actually settled and made improvements." 16 Stat. 557. 5 3. The Interior Board of Indian Appeals affirmed in a decision dated October 10, 1990. Pet. App . 21-28. The Board concluded that only Section 5 of the Indian Reorganization Act -- and not the 1871 Act relied upon by petitioner -- provided any statutory authority for the requested land acquisition. Id. at 24- 26.3 The Board noted that the Area Director had properly considered the factors provided in 25 C.F.R. 151.1O in determining whether the acquisition was justified, and that both the Area Director and the Superintendent had found that there was no reason to remove the lands from the local tax rolls, that potential jurisdictional and land use conflicts existed, and-that petitioner had not shown any need for assistance in handling his affairs. Pet. App. 26. The Board-deemed "most significant] ," however, the Area Director's and the Superintendent's findings that "the BIA was not equipped or staffed to discharge the additional responsibilities arising from an off-reservation trust acquisition in the denial factor 3. State of Kansas." Ibid The Board concluded that the - . of petitioners application was justified based on that alone. Ibid - More `than four years later, on March 30, 1995, petitioner filed suit against the `United States and the BIA in the United 3 The Board explained that the 1871 Act authorized. the allotment of. only those lands that, in 1871, were part of the diminished Osage Reservation and that had already been settled and improved. Because the lands in question were not part of the diminished Osage Reservation, and because petitioner did not acquire the lands until 1988, the Board found the 1871 Act to be inapplicable. Pet. App. 24-26. 6 States District Court for the District of Kansas challenging the denial of his application. Pet. App. 19. The district court dismissed petitioner's suit on two grounds. Id. at 19-20. First, the court held chat the decision of the Secretary of the Interior, through the BIA, whether to acquire land in trust for an Indian is committed to agency discretion, and thus is not reviewable under the Administrative Procedure Act, 5 U.S.C. 701 et - seq. Pet. App. 19. Second, the court held that the BIA had acted properly, in any event, in refusing to take petitioner's land into trust. Id. at 19-20. The court agreed with the BIA that petitioner's reliance on the 1871 Act as authority for his request was misplaced. The court explained that the 1871 Act "simply doesn't apply here," both because petitioner's lands are not within the diminished Osage Reservation referred to in the Act and because petitioner did not settle on or improve those lands before 1871. Id. at 19. The court further concluded that petitioner had not demonstrated that the acquisition was appropriate under any of the factors enumerated in 25 C.F.R. 151.10. Pet . App. 20. Specifically, the court observed that petitioner "provides no justification or need for the discussion of the impact upon government, and no "discussion jurisdictional problems." Ibid -- acquisition of trusteeship, no the State of Kansas and local of potential administrative or 4. Petitioner appealed. After briefed, the Tenth Circuit requested the appeal had been fully supplemental briefing on I 7 whether the Secretary' s decisions whether to acquire land in trust under the Indian Reorganization Act are subject to judicial review under the APA. In response, the United States explained that it had recently abandoned its previous position that such decisions are not subject to APA review because they are committed to agency discretion by law within the meaning of 5 U.S.C. 701(a) (2) . Gov't Supp. 13r. 3 (citing Petition for Writ of Certiorari at 24 in United States Department of the Interior v. South Dakota, No. 95-1956 (filed June 13, 1996) , vacated and remanded, 117 S. Ct. 286 (1996)) . The United States also noted that the Department of the Interior had promulgated a new regulation, which became effective on April 24, 1996, providing procedures to- facilitate judicial review of the Secretary's land acquisition decisions under the Indian Reorganization Act. Id. at 1-2 (citing 61 Fed. Reg. 18,082) (Apr. 24, 1996)) .4 Although the new regulation speaks only of the Secretary's decisions to acquire land in trust, the United States" explained that its change in position extends to the Secretary's 4 The regulation provides for the publication of notice of a decision to acquire trust land and for a 30-day period following such publication during which the Secretary will not acquire title to the particular parcel of land in trust. 61 Fed. Reg. 18,082. That 30-day period permits judicial review of trust 1 and acquisition decisions before the transfer of title to the United States. After title transfers to the United States in trust, judicial review would be barred by the Quiet `Title Act, 28 U.S.C. 2409a. That Act, which generally waives the United States' sovereign immunity and permits plaintiffs to name it as a defendant in civil actions to adjudicate title disputes involving real property, expressly excludes disputes concerning "trust or restricted Indian lands." 28 U.S.C. 2409a(a). 8 decisions not to do so, as in this case. Id. at 4-5. The United States had previously taken the position, both in the district court and in its appeals, that judicial review supplemental brief, however, the earlier briefs in the. court of was not available. In its United States requested that the district court's dismissal of the case be affirmed solely on the ground that " the Secretary properly denied [petitioner's] application seeking to place his lands into Br . 5.5 5. The court of appeals, after holding decision not to acquire petitioner's lands in trust. " Gov't Supp. that the Secretary's trust was reviewable under the APA, upheld the Secretary's decision on On the reviewability question, the court Secretary's decisions whether to acquire land the merits. held that the in trust under Section 5 of the Indian Reorganization Act are not "committed to agency discretion by law" within the meaning of the APA, 5 U.S.C. 701(a) (2). Pet. .App. 6-15. The court reasoned that the language and purpose' of the factors enumerated objective standards Indian Reorganization Act, together with the in 25 C.F.R. 151.10, provide meaningful by which courts may review the Secretary's exercise of his discretion. Pet. App. 11-12. On the merits, the court held that. the Secretary's decision not to acquire petitioner's lands withstood scrutiny under the APA, 5 In his supplemental brief, petitioner agreed with the United States that APA review is available for the Secretary's decisions not to acquire land in trust. Appellant's Supp. Br. 15. 16. 9 because it was not "arbitrary, or otherwise not in accordance capricious, an abuse of discretion, with law." Pet. App. 16 (quoting 5 U.S.C. 706(2)(A)). The court determined, based upon its own review of the administrative record, that the Secretary, through the BIA, had properly considered all relevant factors provided in 25 C.F.R. 151.10 in denying petitioner's request. Pet. App . 17-18. The court noted that the BIA had found that "there was no justification for placing the land in trust status and removing the property from the state and local tax roles, I' that "the BIA was not equipped or staffed to discharge the additional responsibilities of an off- reservation trust acquisition, " that "taking the land would create jurisdictional problems, " and that petitioner "had presented no evidence indicating that he needed assistance in handling his affairs. " Id. findings were Ibid -. at 18. The court "well-documented in . concluded that all of those the administrative record. " . . . . ARGUMENT The court of appeals correctly held that the Secretary of the Interior's denial of petitioner's request to acquire his lands in trust was reviewable under the Administrative Procedure Act and was not an abuse of discretion. Contrary to petitioner's assertions, the decision below does not conflict with any decision of this Court or any other court of appeals. The petition for a writ of certiorari should, therefore, be denied. 1. Petitioner first contends (Pet. 8) that " [c]ertiorari is I 10 appropriate to resolve the split in the Circuits regarding the reviewability of the Secretary's decisions created by the decision below and Florida Department of Business Regulation v. United States Department of the Interior, 768 F.2d 1248 (11th Cir. 1985), cert. denied, 475 U.S. 1011 (1986). However, because both sides to this case agree that the Secretary's action is judicially reviewable, no live controversy exists on that issue here. And a decision of this Court holding, contrary to the court below, that the Secretary's action is not reviewable would be of no benefit to petitioner. Accordingly, even assuming, arguendo, that any live. conflict exists between the Tenth Circuit and the Eleventh Circuit on the reviewability question, this would not be a suitable case in which to resolve it. In any event, petitioner overstates the significance of the Eleventh Circuit's discussion of reviewability in Florida -- a discussion that was in no respect critical to the actual holding in that case. In Florida, the Secretary of the Interior had, agreed to acquire land in trust, and title to that land had been transferred to the United States. The court held that-once land is held by the United States as Indian trust land, the United States has not waived its sovereign immunity for actions that, like the Florida action, seek to revoke its title to the land. 768 F.2d at 1253- 1255. The court noted that the APA's general waiver of sovereign immunity does not, by its terms, "confer[] authority to grant relief if any other statute * * * expressly or impliedly forbids the relief The court plaintiffs Title Act, 11 which is sought." Id. at 1253 then concluded that the relief (quoting 5 U.S.C. 702). sought by the Florida was 28 United States' impliedly forbidden by another statute: the Quiet U.S.C. 2409a, which prohibits challenges to the title to Indian trust lands. 768 F.2d at 1254. At the end of its opinion, the Eleventh Circuit observed that its holding that sovereign immunity barred the Florida action was . "bolstered by considering that the congressional waiver Of immunity under the APA does not ` [affect] other limitations on judicial review. ` " 768 F.2d at 1254 (quoting 5 U.S.C. 702) . The court went on to opine that one of those limitations -- the APA'S exception for acts committed to agency discretion, 5 U.S.C. 701(a) (2) -- was applicable to the Secretary's decision to acquire the land at issue in trust. Id. at 1256-1257. But nowhere did the court even suggest that its sovereign immunity holding turned on whether or not the Secretary's decision was subject to judicial review. The Tenth Circuit's decision in this case did not involve any issue of sovereign immunity. Indeed, because the Secretary decided not to acquire petitioner's lands, the Quiet Title Act was not even implicated. NO conflict exists, therefore, between the holdings of this case and Florida. The Tenth Circuit's failure to follow what is essentially dicta in Florida does not create a conflict warranting this Court's resolution. It is uncertain, moreover, whether the Eleventh Circuit would continue to adhere to the views expressed in Florida given the I 12 Secretary's acknowledgment that his decisions whether to acquire lands in trust under the Indian Reorganization Act are reviewable. As noted above, in the petition for a writ of certiorari in United States Department of the Interior v. South Dakota, 117 S. Ct. 286 (1996) , the government expressly abandoned its previous position that such decisions are exempt from judicial review under the APA's exception for actions committed to agency discretion. See No. 95- 1956, Pet. 24. At the same time, the Department of the Interior issued a new regulation recognizing the reviewability of the Secretary's decisions whether to acquire lands in trust under the Indian Reorganization Act and providing a mechanism to facilitate such review. See 61 Fed. Reg. 18,082 (Apr. 24, 1996). No need exists to address any asserted disagreement between the Tenth Circuit and the Eleventh" Circuit unless, or until, the Eleventh Circuit holds in some future case that such decisions are unreviewable notwithstanding the Secretary's position to the contrary. 2. Petitioner also contends (Pet. 8) that "certiorari is appropriate because the Tenth Circuit's decision failed to give the Secretary of the Interior's interpretation of his own regulations the deference required by Auer v.Robbins,ll 117 S. Ct. 905 (1997) . That argument is curious coming not from the Secretary, but from his opponent, who would have fared no better had the court below deferred to the Secretary's earlier position that his trust land acquisition decisions are unreviewable. Nor does petitioner offer 13 any authority or logic for requiring the Secretary himself has abandoned. deference See, e.g, (South Dakota) , N.A., 116 s. ct. 1730, 1734 situation was presented in Auer itself. 3. Petitioner further argues (Pet. 10) to a position that Smiley v. Citibank (1996) . NO such that the decision below is inconsistent with Morton v. Ruiz 415 U.S." -1 199 (1974), because the Secretary's regulations concerning the acquisition of trust lands do not sufficiently "control the exercise of his discretion. " That argument is contrary to petitioner's argument below. While petitioner urges this Court to hold that the regulations (Pet. 10), Secretary's Appellant's "are too vague to permit meaningful judicial review" he urged the court of appeals to hold that " [t]he regulations are detailed enough to permit review. " Supp. Br. at 16. This case is not, `moreover, anything like Ruiz There was -. issue in Ruiz as to whether any regulation was "too vague" no to permit judicial review. Instead, the Court held in that case that deference was not due the Secretary's policy of denying general assistance benefits to Indians living outside reservations, where no such policy had been published in the Federal Register or the Code of Federal Regulations, as required by the BIA's own manual, and where Congress had been led to believe that the policy was otherwise. 415 U.S. at 236-237. No similar circumstances exist here. The regulation at issue, including the preamble noting the Secretary's change of position on reviewability, has been published 14 in the Federal Register. 4. Petitioner finally suggests (Pet. 11-12) that the court of appeals' decision conflicts with United States Department of the Interior v. South Dakota, 117 S. Ct. 286 (1997). In that case, the Court granted the United States' petition for a writ of certiorari, vacated the judgment of the Eighth Circuit, and remanded with instructions to vacate the district court's decision and remand the case to the Secretary for reconsideration in light of the new regulation providing for judicial review of trust land acquisition decisions. According to petitioner, this Court's order in South Dakota requires a remand to the Secretary of all trust land acquisition decisions made before the issuance of that "regulation. As an initial matter, petitioner never requested such relief from the Tenth Circuit. This Court issued its order in South Dakota before the supplemental briefs on reviewability were filed in this case; indeed, the Tenth Circuit's order requesting those briefs specifically cited this Court's order in South Dakota. But nowhere in petioner's supplemental brief, or in any of his other submissions to the Tenth Circuit, is there any request to remand the matter to the Secretary. No reason exits for this Court to consider an issue that was nether raised nor addressed below. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 148 n.2 (1970) (citing cases) . In any event, the Tenth Circuit's decision does not conflict with this Court's order "in South Dakota, which was occasioned by procedural involved a 15 circumstances that are not challenge to the Secretary's present here. That case decision to acquire lands in trust, whereas this case involves a challenge to decision not to acquire lands. An impediment to thus remained in South Dakota, although not here, the Secretary's judicial review even after the Secretary's concession that his decisions to acquire trust lands are reviewable: Because title to the lands in South Dakota had already passed to the United States, the Quiet Title Act, 5 U.S.C. 702, precluded most challenges involving those lands. It was thus necessary to remand the matter to the Secretary for a new decision. Only then could respondents seek judicial review during the 30-day period provided by the new regulation between the Secretary's decision to acquire the lands and the actual transfer of title to the United States. See n.4, supra (discussing new regulation) . Here, because title to petitioner's lands never passed to the United States, the Quiet Title Act did not operate as a separate impediment to judicial review of the Secretary's decision. Accordingly, after concluding that the Secretary's trust land acquisition decisions are not committed to agency discretion under the exception to judicial review provided in 5 U.S.C. 701(a) (2), the court below properly proceeded to review that decision on the merits. It was not necessary to remand the matter to the Secretary I for a new administrative decision in order to trigger an opportunity for judicial review. Finally, petitioner has already been afforded appropriate o 16 judicial review of the Secretary's denial of his request lands be acquired in trust for his benefit. Both the that his court of appeals and the district court to assess whether the Secretary examined the administrative record had properly evaluated petitioner's request under the relevant factors enumerated in 25 C.F.R. 151.10. See Pet. App . 17-18, 20. Neither court found any reason to question the Secretary's findings that no justification existed for removing the lands from the state and local tax rolls, that taking the lands into trust would create jurisdictional problems with the state and local governments, that petitioner had not any need for assistance in handling his affairs, and demonstrated that the BIA was not equipped to-discharge the additional responsibilities that would arise from the acquisition of petitioner's lands in trust. There is no reason to suppose that either reviewing courts, would reach any different remand sought by petitioner. the Secretary, or the conclusions after the 17 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Actinq Solicitor General LOIS J. SCHIFFER Assistant Attorney General EDWARD J. SHAWAKER LISA E. JONES Attorneys OCTOBER 1997