filed sep 2 3 2011
TRANSCRIPT
Nos. 11-246 & 11-247
FILED
SEP 2 3 2011OFFICE OF THE CLERI~
IN THE
KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ETAL.,Petitioners,
andMATCH-E-BE-NASH-SHE-WISH BAND OF
POTTAWATOMI INDIANS,Petitioner,
V.DAVID PATCHAK, ETAL.
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITEDSTATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
BRIEF OF WAYLAND TOWNSHIP, ALLEGAN COUNTY,ALLEGAN AREA EDUCATIONAL SERVICE AGENCY,
WAYLAND UNION SCHOOLS, CITY OF WAYLAND, CITY OFALLEGAN, DORR TOWNSHIP, MARTIN TOWNSHIP, YANKEESPRINGS TOWNSHIP, DEPUTY SHERIFF’S ASSOCIATION OF
MICHIGAN, WAYLAND AREA CHAMBER OF COMMERCE,ALLEGAN AREA CHAMBER OF COMMERCE, DORR
BUSINESS ASSOCIATION, WEST MICHIGAN HISPANICCHAMBER OF COMMERCE, BARRY COUNTY CHAMBER OFCOMMERCE, BARRY COUNTY ECONOMIC DEVELOPMENTALLIANCE, GUN LAKE BUSINESS ASSOCIATION, ET AL. AS
AMICI CURIAE IN SUPPORT OF PETITIONERS
ROBERT A. LONG, JR.COVINGTON & BURLING LLP1201 Pennsylvania Ave., NWWashington, DC 20004(202) [email protected]
MICHAEL D. HOMIERCounsel of Record
FOSTER, SWIFT, COLLINSSMITH, P.C.1700 E. Beltline Ave., NESuite 200Grand Rapids, MI 49525(616) [email protected]
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ..............................................i
TABLE OF AUTHORITIES ......................................ii
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION .......................................................3
ARGUMENT ...............................................................5
The Court of Appeals’ Decision WarrantsReview by This Court Because LocalGovernments and Businesses Must BeAble to Rely on the Status of FederalLand to Engage in Economic Planningand Development .............................................5
I. The Court of Appeals’ Decision CreatesUncertainty And Instability InCommunities Surrounding The TrustLands ................................................................5
II. The Band’s Development Of The TrustLands Benefits Southwest Michigan’sEconomy And Provides Local Govern-ments With Critical Resources ........................8
III. Allowing Third Party Litigation ToDivest The Federal Government OfLand Will Adversely Affect LocalGovernments’ Ability To UndertakeEssential Improvements ................................14
CONCLUSION ..........................................................17
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TABLE OF AUTHORITIES
Page(s)
CASES
Mich. Gambling Opposition v. Kempthorne,525 F.3d 23 (D.C. Cir. 2008) ..................................6
Patchak v. Salazar, 632 F.3d 702, 703 (D.C.Cir. 2011) ...............................................................7
Patchak v. Salazar,646 F. Supp. 2d 72 (D.D.C. 2009) ..........................7
Regan v. New York, 349 U.S. 58 (1955) ....................16
STATUTES
25 U.S.C. § 467 ............................................................625 U.S.C. § 2719 ..........................................................6Indian Reorganization Act, 25 U.S.C. § 465 ..............3Quiet Title Act, 28 U.S.C. § 2409a .............................4Mich. Comp. Laws § 124.501 et seq ..........................10
OTHER AUTHORITIES
Julia Bauer, Unemployment Rises Again inWest Michigan; Regional Labor Pool AlsoShrinks, GRAND RAPIDS PRESS, Apr. 23,2009, http://www.mlive.com/business/west-michiganlindex.ssf]2OO9lO4luneraployment_rises_again in we.html .........................................3
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County-Level Unemployment and MedianHousehold Income for Michigan, USDAECONOMIC RESEARCH SERVICE, Aug. 23,2011, http ://www.ers.usda. gov/data/unemployment/RDList2.asp?ST=MI ...................8
Pete Daly, Gun Lake Casino to Break GroundSept. 17, GRAND RAPIDS BUS. J., Aug. 31,2009, http://www, grbj.com/GRBJ/ArticleArchive/2009/August/August+3 I/BREAKING+NEWS.htm ........................................................9
Press Release, Gun Lake Casino, Gun LakeTribe and Gun Lake Casino Donate PoliceK-9 to Allegan County SheriffsDepartment (Aug. 25, 2011),http ://www.mbpi.org/PD F/News/Press%20Releases/PR_K-9_Donation_8- 25-11.pdf. ...........14
Gun Lake Casino Opening Weekend Draws aFull House, SW. MICH.’S SECOND WAVE,
Feb. 17, 2011, http://swmichigan.secondwavemedia.com/devnews/casino0217.aspx ...........8
Lisa LaPlante, No More Pay-to-Play forWayland Wildcats, Thanks to Casino, Fox17 NEWS, Aug. 24, 2011, http:/!www.fox17online.com/news/fox 17-wayland-schools-no-more-paytoplay-for-wayland-wildcats-thanks-to-casino-20110824,0,4518511.story ...................................12
Ryan Lewis, Wayland School, Township WinBig Checks, ALLEGAN CNTY. NEWS, July 27,2011, http :!!www.allegannews.com/articles12011/07/28flocal_news12.txt... 9, 11, 12, 13
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Julie Makarewicz, Wayland Union SchoolDistrict Finds Uses for Gun Lake CasinoPayment, GRAND RAPIDS PRESS, Aug. 23,2011, http://www.mlive.com/wayland/2011/08/wayland_union_school_district.html .............12
On Labor Day, High Unemployment inMichigan, but Hope for Better Things,GRAND RAPIDS PRESS, Sept. 4, 2011,http://www.mlive.com/opinion/grand-rapids/index, ssf]2011/09/on_labor_day_high_unemployment.html .....................................3
Susan Saulny & Monica Davey, New EconomicFears Arise in Michigan, N.Y. TIMES, Nov.22, 2008, http://www.nytimes.com/2008/11/23/us/23michigan.html .....................................3
Lindsey Smith, Gun Lake Casino’s FirstPayout to State, Local Governments TopExpectations, MICH. RADIO, June 2, 2011,http://michigan radio.org/post/gun-lake-casino%E2% 80%99s-first-payout-state-local-governments-top-expectations ...................13
Wayland Casino to Break Ground Sept. 17,WOOD TV 8, Sept. 3, 2009,http ://www.woodtv.com/dpp/newsflocal/gun_lake_ region/Wayland_casino to break_ground_September_17 .........................................9
WayIand Twp Board Talks Casino Plans,WOOD TV 8, Feb. 2, 2009,http://www.woodtv.com/dpp/news/Wayland_Twp_ board_ talks_casino_plans .......................12
Herb Woerpel, Tribe Secures $165 MillionLoan for Gun Lake Casino, PENASEEGLOBE, July 20, 2010, http://www.mlive.com/penaseeglobe/index.ssf/2010/07/tribe_secures_165_million_loan.html ...........9
INTEREST OF AMICI CURIAE
The amici are local governments, businessassociations, and other entities in southwestMichigan, near the Match-E-Be-Nash-She-WishBand of Pottawatomi Indians ("Band") trust landsthat are the subject of this action.1 The 147-acreparcel at issue in this case is located within theboundaries of amicus curiae Wayland Township, amunicipal corporation in Allegan County that ishome to approximately 3,000 individuals.
Amici curiae Allegan County, Allegan AreaEducational Service Agency, Wayland Union Schools,City of Wayland, Dorr Township, Martin Township,and Yankee Springs Township are local governmentsin southwest Michigan that, along with WaylandTownship, are engaged in efforts to foster economicdevelopment in an area that includes the trust lands.The amici have entered into a revenue sharingagreement with the Band, pursuant to a compactbetween the Band and the State of Michigan, thathas been approved by the Secretary of the Interior.Amicus curiae City of Allegan is a Michiganmunicipal corporation that has experienced economicgrowth as a result of the Band’s development of thetrust lands. Amicus curiae Deputy Sheriffs
1 Pursuant to Sup. Ct. Rule 37.6, the amici affirm that nocounsel for a party authored the brief in whole or in part, thatno counsel or party made a monetary contribution intended tofund the preparation or submission of this brief, and that noperson other than the amici or their counsel made such amonetary contribution. The parties have consented to the filingof this brief, and letters of consent have been filed with theClerk.
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Association of Michigan, represents the interests ofroad and corrections deputies who have benefitedfrom the job growth and retention arising out of thedevelopment of the trust lands.
Amici curiae Wayland Area Chamber ofCommerce, Allegan Area Chamber of Commerce,Kalamazoo Regional Chamber of Commerce, DorrBusiness Association, West Michigan HispanicChamber of Commerce, Barry County Chamber ofCommerce, Barry County Economic DevelopmentAlliance, and Gun Lake Business Association arebusiness associations in southwest Michigan whosemembers have benefited from cooperative economicdevelopment efforts involving the Band and its use ofthe trust lands. The businesses represented by theseassociations would suffer devastating job losses anddecreased revenue if the land were taken out of trustand all of the investment in the economicdevelopment of the area were destroyed. Amicuscuriae Plummer Supply, Inc., is a local businesslocated near the trust lands that has benefited fromthe Band’s economic development initiatives.
Collectively, the amici curiae representnumerous individuals and businesses that supportand have been positively affected by the Band’seconomic development activities on the trust land.They submit this brief to explain the substantiallocal benefits that arise from the cooperative andmutually reinforcing economic development efforts ofthe Band, the regional governments, and localbusinesses. The amici curiae urge this Court togrant the petitions for certiorari to resolve thedebilitating uncertainty and economic instabilitycreated by the court of appeals’ decision, which
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threatens to stifle economic development in a Stateand region that has endured a disproportionateamount of economic suffering in recent years.
INTRODUCTION
Michigan’s economic troubles in recent yearshave been the subject of national headlines.2 Facedwith skyrocketing unemployment and a decimatedautomotive industry, Michigan has been described as"ground zero in the national economic downturn.’’3
Southwest Michigan has not escaped these economichardships. Although local governments in the regionhave worked to stimulate job growth and attractrevenue, recovery has been stagnant.4
In recent months, however, southwestMichigan’s economy has received a much-neededboost. On February 10, 2011, the Band opened a$165 million gaming facility known as Gun LakeCasino. The facility occupies part of a 147-acreparcel held by the United States in trust for theBand pursuant to the Indian Reorganization Act, 25
~ See, e.g., Susan Saulny & Monica Davey, New Economic FearsArise in Michigan, N.Y. TIMES, Nov. 22, 2008,http ://www.nytimes.com/2008/l l/23/us/23michigan.html.
3Id.
4 On Labor Day, High Unemployment in Michigan, but Hope for
Better Things, GRAND RAPIDS PRESS, Sept. 4, 2011,http ://www.mlive .corn/opinion/grand-rapids/index. ssf/2011/09/on_labor_day_high_unemployment.html; Julia Bauer,Unemployment Rises Again in West Michigan; Regional LaborPool Also Shrinks, GRAND RAPIDS PRESS, Apr. 23, 2009,http ://www.mlive.com/business/west-michigan/index.ssf/2OO9/O4/unemployment_rises_again in we.html.
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U.S.C. § 465. The Band’s economic developmentefforts on the trust lands have directly created 900new jobs and infused area hotels, restaurants, andother service providers with new business.Additionally, the Band has entered into a revenuesharing agreement with regional governments thatwill provide essential resources for schools, roads,sewer and water systems, public safety programs,and other critical needs. The Band’s economicdevelopment efforts have also improved morale andpromoted intergovernmental service-sharingagreements,which are criticalto the region’srecovery.
Now, a decision of the Court of Appeals for theDistrict of Columbia Circuit threatens to unravel thetremendous economic benefits generated by theBand’s development of the trust lands. In a decisionthat openly conflicts with decisions of other federalcourts of appeals, the D.C. Circuit held that anindividual, Respondent David Patchak, hasprudential standing to challenge the Secretary of theInterior’s authority to place the land into trust, andthat the United States is not immune from Patchak’ssuit under the Quiet Title Act, 28 U.S.C. § 2409a.Patchak’s suit seeking to divest the United States oftitle to the trust lands has created uncertainty andeconomic instability for local governments andbusinesses in Southwest Michigan, making itdifficult to plan and execute strategies for economicdevelopment and business growth.
The amici curiae have relied on the Band’seconomic development efforts, and the trust status ofthe lands on which the Band has developed itsgaming facility, to plan infrastructure improvements,
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negotiate intergovernmental agreements, and beginrebuilding their local economies. The amici regionalgovernments have entered into a revenue sharingagreement with the Band, and have relied onrevenue projections for the trust lands in planningfor the development and delivery of governmentservices to individuals and businesses, includingcritical infrastructure improvements. In addition,local businesses have based their planning andinvestment on economic development of the trustlands. The court of appeals’ decision eliminates thestability that is essential for local governments andbusinesses. In light of the wide-reaching anddisruptive impact of the court of appeals’ decision,immediate review by this Court is urgently needed.
ARGUMENT
The Court of Appeals’ Decision WarrantsReview by This Court Because LocalGovernments and Businesses Must Be Able toRely on the Status of Federal Land to Engagein Economic Planning and Development.
The Court of Appeals’ Decision CreatesUncertainty And Instability InCommunities Surrounding The TrustLands.
In 2001, the Band submitted a fee-to-trustapplication to the Secretary of the Interior,requesting that a 147-acre tract, known as the"Bradley Tract," be taken into trust under the IndianReorganization Act for future use as a gamingfacility. See 25 U.S.C. §§ 467, 2719. The BradleyTract, located in Wayland Township, is adjacent to
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the freeway and was the site of an abandonedmanufacturing facility. This site had not been usedfor several years.
After an administrative review process thatincluded an extensive environmental assessment, theSecretary published notice that the Bradley Tractwould be taken into trust for the Band. See 70 Fed.Reg. 25,596-97. The notice announced a thirty-daywaiting period, the purpose of which was "to affordinterested parties the opportunity to seek judicialreview of the final administrative decisions to takeland in trust for Indian tribes and individual Indiansbefore transfer of title to the property occurs." Id.The notice clearly stated that the Bradley Tractwould be "used for the purpose of construction andoperation of a gaming facility." Id.
During the thirty-day waiting period, an anti-gambling organization known as Michigan GamblingOpposition ("MichGO") filed suit to challenge theSecretary’s decision to take the Bradley Tract intotrust. Both the district court and the court ofappeals rejected MichGO’s claims on the merits. SeeMich. Gambling Opposition v. Kempthorne, 525 F.3d23 (D.C. Cir. 2008). The Secretary then placed theland into trust, and the Band proceeded with itsplans to develop the trust lands. On February 10,2011, the Band opened a $165 million gamingfacility, Gun Lake Casino, on the trust lands.
Respondent David Patchak did not file suitduring the thirty-day waiting period. AfterMichGO’s suit was rejected, however, Patchak filedsuit against the Secretary of the Interior and theAssistant Secretary for the Bureau of Indian Affairs(collectively, "Secretary"), challenging the Secretary’s
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decision to take the Bradley Tract into trust.Patchak alleged that because he lived near theBradley Tract, he would be injured by the noise,pollution, and crime that assertedly will begenerated by the gaming facility. Patchak v.Salazar, 632 F.3d 702, 703 (D.C. Cir. 2011).Patchak’s suit seeks an injunction reversing theSecretary’s decision to take the Bradley Tract intotrust. If successful, the suit could require Gun LakeCasino to close its doors. As a result, 900 employeeswould lose their jobs, and local governments andbusinesses would lose millions of dollars in annualrevenues and economic development opportunities.
The United States District Court for theDistrict of Columbia rejected Patchak’s suit, holdingthat Patchak lacks standing and that this litigationis barred by sovereign immunity. Patchak v.Salazar, 646 F. Supp. 2d 72 (D.D.C. 2009). TheCourt of Appeals for the District of Columbia Circuitreversed, concluding that Patchak has prudentialstanding to enforce the Indian Reorganization Actand that the Indian lands exception to the QuietTitle Act’s waiver of sovereign immunity isinapplicable. Patchak, 632 F.3d at 705, 710. Boththe Secretary and the Band now seek review by thisCourt.
The court of appeals’ decision casts a shadowof uncertainty over local governments and businessesnear the trust lands. The amici regionalgovernments have planned infrastructureimprovements, public safety projects, and communityinitiatives in reliance on the trust status of the landand its resulting economic development. The court ofappeals’ decision is causing great disruption to the
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amici regional governments’ ability to develop andimplement infrastructure improvements and otherinitiatives. Similarly, possible divestiture of thefederal government’s title to the Bradley Tract atthis late juncture threatens to unravel the manybenefits that the economic development of that Tracthas conferred on the region, and makes it difficult forbusinesses to plan and execute investments that willcontribute to the region’s economic recovery.
II. The Band’s Development Of The TrustLands Benefits Southwest Michigan’sEconomy And Provides Local Govern-ments With Critical Resources.
The Band’s development of the trust landsprovides very significant and wide-reaching benefitsto area communities. Most directly, the Band’sopening of the gaming facility created 900 new jobsin early 2011. This job creation was particularlywelcome because Allegan County, in which the trustlands are located, reported an 11.9% unemploymentrate during 2010, more than two percent pointshigher than the national unemployment rate.~ Inaddition to these 900 jobs, some 750 skilled tradesworkers, including plumbers, electricians,carpenters, and sheet metal workers,~ were employed
~ County-Level Unemployment and Median Household Incomefor Michigan, USDA ECONOMIC RESEARCH SERVICE, Aug. 23,2011, http :llwww.ers.usda.govldatalunemployment!RDList2.asp?ST=MI.
6 Gun Lake Casino Opening Weekend Draws a Full House, Sw.
MICH.’S SECOND WAVE, Feb. 17, 2011, http://swmichigan.secondwavemedia.com/devnews/casino0217.aspx.
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during the construction of the $165 million facility.7
Development of the trust lands has also indirectlycreated an estimated 1,000 outside vendor jobs.s Thenew jobs translate into significant and wide-reachingbenefits for area communities because the employeespay local taxes and spend money at local businesses.9
The Band estimates that, as a result of itsefforts to develop the trust lands, it will spend $30million annually on vendor goods and services.1°
Most of those goods and services will be purchased insouthwest Michigan.11
The Band’s development of the trust landsfacility has resulted in significant collateral benefitsto the area economy. The Band estimates that thefacility will create 60,000 annual new guest stays atarea hotels and $4.4 million in additional revenuesfor area hotels.12 The casino’s opening has also
~ Herb Woerpel, Tribe Secures $165 Million Loan for Gun LakeCasino, PENASEE GLOI~E, July 20, 2010,http ://www.mlive.com/penaseeglobe/index.ssf/2O l O/O7 /tribe_secures_165_million_loan.html.
8 Gun Lake Casino Opening Weekend, supra note 6.
9 Ryan Lewis, Wayland School, Township Win Big Cheeks,ALLEGAN CNTY. NEWS, July 27, 2011, http://www.allegannews.com/articles/2011/07128/local_news/2.txt.
10 Pete Daly, Gun Lake Casino to Break Ground Sept. 17,GRAND RAPIDS BUS. J., Aug. 31, 2009, http://www.grbj.com/GRBJ/ArticleArchivel2OO9lAugustlAugust+ 3 I/BREAKING+NEWS.htm.
11 Gun Lake Casino Opening Weekend, supra note 6.
12 Wayland Casino to Break Ground Sept. 17, WOOD TV 8, Sept.3, 2009, http:l/www.woodtv.comldpplnews/locallgun_lake_region/Wayland_casino_to_break_ground_September_l 7.
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contributed to increased business for arearestaurants, gas stations, drycleaners, landscapers,and other businesses. The facility has room toexpand, which means that the economic benefits tothe region can grow over time.13 But expansion canoccur only if the status of the land is stable, and localgovernments and businesses can rely on it as a basisfor economic planning.
Notably, the Band has agreed to share aportion of the net revenues generated by the gamingfacility with surrounding local governments. OnMay 9, 2007, the Band and the State of Michiganentered into a Class III Gaming Compact, which wasapproved by the Secretary of the Interior byoperation of law. Under the compact, Gun LakeCasino is obligated to pay two percent of its net slotmachine revenue to local units of government withinthe immediate vicinity of Gun Lake Casino. Therevenue is allocated by a local revenue sharing boardcreated under Michigan’s Urban CooperationAgreement of 1967, Mich. Comp. Laws § 124.501 etseq.
Pursuantagreement wasTribe and ten
to the compact, an interlocalexecuted between the Gun Lakepublic agencies: the County of
Allegan; the Township of Wayland; Wayland UnionSchool District; Allegan Area Educational ServiceAgency; the City of Wayland; the Township of Dorr;the Township of Leighton; the Township of Martin;the Township of Hopkins; and the Township of
Gun Lake Casino Opening Weekend, supra note 6.
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Yankee Springs. The interlocal agreement createsthe Match-E-Be-Nash-She-Wish Wayland TownshipArea Local Revenue Sharing Board (the "Board"), aseparate legal entity charged with establishingcriteria or formulas for distributing and disbursingrevenues to the local governments. The Boardcomprises three members of the Band and threerepresentatives from the local governments.
In June of 2011, Gun Lake Casino made itsfirst distribution under the revenue sharingagreement, based on just two months of operations.Gun Lake Casino distributed a total of $514,871.00to local governments, plus more than $2 million tothe State of Michigan. Of the distributions to localgovernments, Wayland Union Schools received$194,628.31 and the Allegan Area EducationalService Agency received $32,163.63.14 Futuredistributions will be made in six-month increments.
Based on the revenue sharing agreement, localgovernments have begun planning criticalinfrastructure projects and other initiatives thatwould not be feasible without the Band’s cooperativeeconomic development efforts. Wayland Township,for example, is planning the construction of a waterand sewer treatment system that would eliminatereliance on aging septic systems and provideimportant environmental protections.1~ With its firstshare of the revenue, Wayland Township has
Lewis, supra note 9.
1s Wayland Twp Board Talks Casino Plans, WOOD TV 8, Feb. 2,2009, http ://www.woodtv.com/dpp/news/Wayland_Twp_board-talks_casino_plans.
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undertaken a feasibility study in connection with theproposed water and sewer system, entered into anoption contract for purchase of property upon whichto locate the sewer and water systems, and is makingplans for road improvements that would otherwisehave been deferred.~6
Wayland Union School District is using theshared revenue to cut preschool tuition rates by one-third, which will allow more children the opportunityto receive a preschool education.~7 To further helpfamilies, Wayland Union School District is also usingpart of its revenue disbursement to subsidize "pay toplay" athletic fees for students,is Typically, eachhigh school student must pay $100.00 per sport toparticipate in school athletics, in addition to anycosts for equipment and camps. The Band’s sharedrevenue will eliminate this fee and thus alleviate thefinancial burden on families of high school athletes.
Additionally, Wayland Union School Districtintends to establish a scholarship fund forgraduating seniors to encourage families to stay in
18 Lewis, supra note 9.
17 Julie Makarewicz, Wayland Union School District Finds
Uses for Gun Lake Casino Payment, GRAND RAPIDS PRESS, Aug.23, 2011, http://www.mlive.com/wayland/2Oll/O8/wayland_union_school_district.html.
18 Lisa LaPlante, No More Pay.to-Play for Wayland Wildcats,Thanks to Casino, FOX 17 NEWS, Aug. 24, 2011,http ://www.fox 17online.corn/news/fox 17-wayland- schools-no-more-paytoplay-for-wayland-wildcats-thanks-to-casino-20110824,0,4518511.story; see also Makarewicz, supra note 17.
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the Wayland area.19 The school district will also useshared revenue to fund maintenance and capitalprojects,eo This will permit more of the district’sgeneral funds to be used in the classroom, ratherthan on building improvements.
The revenue sharing agreement also allowslocal communities to bolster their public safetyprograms and engage in collaborativeintergovernmental agreements. Wayland Townshipis using a portion of the shared revenue to fund acontract with the Allegan County SheriffsDepartment, under which Allegan County willprovide two deputies dedicated to patrolling WaylandTownship.el Along with increased public safety, thiscooperation between municipalities yields intangiblebenefits for the morale of the community.
In addition to the benefits from the revenuesharing agreement, the Band’s economicdevelopment efforts on the trust lands have alsocontributed directly to area communities. Mostrecently, the Band and Gun Lake Casino donated$12,000.00 to the Allegan County SheriffsDepartment to purchase a police K-9 dog that can beused for "search and rescue tactics, locating a lost
19 Lindsey Smith, Gun Lake Casino’s First Payout to State,Local Governments Top Expectations, MICH. RADIO, June 2,2011, http :/! michiganradio.orglpostlgun-lake-casino%E2%80%99s-first-payout-state-local-governments-top-expectations.
2o Makarewicz, supra note 17.
Lewis, supra note 9.
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child, and identifying illegal substances.’’e2 Thedonation illustrates a newly forged partnershipbetween the Band and local law enforcement, whichultimately benefits all of the area’s residents.
Although Gun Lake Casino has been open forjust nine months, it has already bolstered theregion’s economy and promoted positive, cooperativerelationships between municipalities and betweenthe Band and the general community. Until thecourt of appeals issued its decision, these economicand community benefits were expected to increaseover time, particularly as the local governmentscommence infrastructure improvements usingshared revenue from the casino. All of these positivedevelopments are threatened by the court of appeals’decision, which has created instability anduncertainty that is highly disruptive to governmentand business planning and investment.
III. Allowing Third Party Litigation ToDivest The Federal Government Of LandWill Adversely Affect Local Governments’Ability To Undertake EssentialImprovements.
Given the beneficial impact of the Band’sdevelopment of the trust lands in southwestMichigan, the consequences of allowing an individuallitigant to destabilize economic and business
22 Press Release, Gun Lake Casino, Gun Lake Tribe and GunLake Casino Donate Police K-9 to Allegan County SheriffsDepartment (Aug. 25, 2011), http://www.mbpi.org/PDF/News/Press%20Releases/PR_K-9_Donation_8-25-11.pdf.
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planning in the region are clear. As a result of thecourt of appeals’ decision, the Band and regionalgovernments and businesses can no longer plan andimplement economic development and investmentplans based on an assurance that the United Statesholds title to the Bradley Tract in trust for the tribe.The region could lose jobs--both at Gun Lake Casinoand at the businesses that have boomed as a result ofGun Lake Casino’s operation---during a period ofalready high unemployment. In addition,governments and businesses are faced with thepossible loss of $30 million of revenue from Gun LakeCasino’s purchase of supplies and services. Localgovernments also face the possible loss of taxes andshared revenues generated by the gaming facility.This uncertainty is disruptive to economicdevelopment plans, which require a high degree ofcertainty and stability.
Local governments and businesses near theBand’s gaming facility must be able to rely on thefederal government’s decision to take the BradleyTract into trust, in order to commence infrastructureimprovements, implement public safety programs,and otherwise engage in responsible planning. Localgovernments cannot budget for such improvements ifthey do not know whether Gun Lake Casino willcontinue to operate. For example, WaylandTownship intends to construct a $17 million waterand sewer treatment system, which would not befeasible without the ongoing operation of Gun LakeCasino. Wayland Township cannot effectivelyimplement such a sizeable infrastructure projectwithout substantial certainty about the trust statusof the land. Thus, the court of appeals’ decision has
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left an entire region in limbo: can communities beginimproving their roads, sewer systems, and watersystems, or must they refrain from making theseimprovements because the federal governmentmight, in the future, be divested of title to the land?
The court of appeals’ decision will have animpact that extends far beyond southwest Michigan.Local governments across the country must be ableto rely on the federal government’s decision to takeland into trust, and the stability of the federalgovernment’s title, so that they can enter intocontracts to construct improvements and undertakeother important public projects. Allowing challengesto the status of trust lands after title has beentransferred to the United States (and after abusiness is operating on the land) will result incrippling instability and uncertainty that willfrustrate cooperative economic development efforts,such as the beneficial efforts engaged in by the Bandand the Local Governments and Associations. Suchinstability and uncertainty will stifle economicdevelopment during at a time when it is sorelyneeded.
This Court has long held that a basic purposeof the law is to provide predictability. See, e.g.,Regan v. New York, 349 U.S. 58, 64 (1955) ("The lawstrives to provide predictability so that knowing menmay wisely order their affairs .... "). The court ofappeals’ decision eliminates predictability and placeslocal governments in a precarious position: they arehanded resources to improve their communities andgrow their economies, but they do not know whetherthe resources will suddenly be taken away. Localgovernments need stability to climb out of the
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recession and build stronger communities, and thecourt of appeals’ decision takes away that criticalstability. Accordingly, this Court’s immediate reviewof the court of appeals’ decision is warranted.
CONCLUSION
For the reasons set forth above, as well as thereasons set forth in the Petitions for Certiorari filedby the Solicitor General and the Band, the amicicuriae respectfully request that this Court grant thepetitions for certiorari.
Respectfully submitted,
ROBERT A. LONG, JR.COVINGTON & BURLING LLP
1201 Pennsylvania Ave., NWWashington, DC 20004(202) [email protected]
September 2011
MICHAEL D. HOMIERCounsel of Record
FOSTER, SWIFT, COLLINS &
SMITH, P.C.
1700 E. Beltline Ave., NESuite 200Grand Rapids, MI 49525(616) [email protected]
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