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#904890 --- 10/26/08 01:40 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

FOURTH CAUSE OF ACTION THE DETERMINATION WAS NOT IN ACCORDANCE WITH LAW BECAUSE IT WAS MADE CONTRARY TO PRIOR DOI POLICIES

The purpose of Section 465 is to enable landless Indian tribes or tribes with inadequate land resources to become economically self-sufficient. Consistent with this purpose, the DOI, historically, has taken the position that it will NOT take additional land in trust from tribal groups that HAVE the ability to manage their own affairs and who have been highly successful through their own efforts.

The OIN has earned hundreds of millions of dollars from its business activities, which clearly demonstrates its "ability to manage its own affairs" and the success of its own efforts.

The DOI's longstanding policy has been not to take land into trust unless marketable title may be conveyed to the DOI by the fee owner of the property. The OIN lands are subject to outstanding tax liens, which under well-established principles render title unmarketable. The Determination nonetheless proposes to take such land into trust. [This is an EXCELLENT point because even if the DOI claimed it accepted the land into trust, the feds will not accept it and log it into the federal register until the tribe can get title insurance on it. They cannot do so with liens against the land.]

Even if Section 465 was constitutional and available to the OIN (which it is not) the Determination is antithetical to the policies underlying that statute and adopted by the DOI.

FIFTH CAUSE OF ACTION THE DETERMINATION WAS INFECTED WITH BIAS TOWARD THE OIN IN VIOLATION OF THE PLAINTIFFS' CONSTITUTIONAL DUE PROCESS RIGHTS

Due process requires that the determination to take land into trust be made in an impartial manner. The manner in which the Determination was made reflected bias in favor of the decision to take the subject lands into trust.

For example, Malcolm Pirnie, which drafted the EIS upon which the Determination was based, was selected and compensated by the OIN. Such selection was memorialized in the MOA entered into during December 2005 by and between Malcolm Pirnie, the BIA, and the OIN. The State and Counties were not parties to the Memorandum of Understanding (MOA) nor asked or permitted to provide input in selecting the party to draft the EIS.

The selection process was run entirely by the OIN and its outside counsel. In an October 12, 2005 letter to Franklin Keel, Regional Director, BIA Eastern Regional Office, the OIN's outside counsel, Zuckerman Spaeder LLP, noted that Zuckerman Spaeder itself had both created the list of potential candidates for the project and conducted the initial screening and in-person interviews of the candidates it had identified. The letter states that "Malcolm Pirnie emerged as the best candidate selected for the project, subject to the [BIA's] concurrence."

The same letter requested that the DOI approve the selection of Malcolm Pirnie on the basis of background information on the four finalist candidates appended to the letter. Such background information consisted nearly entirely of printouts from publicly available websites.

The EIS's bias reflects the fact that the EIS is an advocacy piece that was commissioned by the OIN's outside counsel rather than an objective evaluation of the environmental consequences of taking the subject lands into trust as is mandated by NEPA and its implementing regulations. Many elements of the EIS were, in fact, agreed to between Malcolm Pirnie and the OIN prior to the start of the EIS process. On October 6, 2005, Malcolm Pirnie prepared an "outline" of the EIS which described the content of the EIS including the predetermined conclusion that there was "need" to take lands into trust on behalf of the OIN and that the "existing condition of [the subject] lands is the baseline going forward for impact assessment."

Additionally, the DOI ignored its obligations under FOIA. The DOI has acknowledged that its own regulations and FOIA require it to produce the documents upon which the EIS was based, and in fact the DOI accepted a check from the Plaintiffs in the sum of $9,540 for the production of such documents. Nevertheless, the DOI has yet to provide the documents upon which the EIS was based to the Plaintiffs.

The actions of the DOI in violation of FOIA further reflect the DOI and the BIA's bias in favor of taking the subject lands into trust. The DOI's failure to produce the requested documents deprived Plaintiffs of their due process rights to address the evidence submitted in support of the OIN's application.

The DOI's biased consideration of the OIN's land into trust application is consistent with the fact that the OIN dominated the EIS process by hiring a former DOI and DOJ official, whose official duties, among others, concerned the United States' involvement in litigation relating to the OIN.

The Secretary's analysis of the evidence and facts in reaching the decision was not fair, impartial, objective or reasonable. Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904900 --- 10/26/08 01:54 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

SIXTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO THE RELEVANT FACTORS UNDER 25 CFR PART 151

Defendants wrongfully applied the regulations in granting the application because the Defendants wrongfully characterized the OIN's land-into-trust application as an "on-reservation" request.

Section 151.10 applies only to land located within an "Indian reservation." The definitional section of the DOI's regulations applicable to land-into-trust application defines "Indian Reservation" as "that area of land over which the tribe is recognized by the United States as having governmental jurisdiction . . . ." The United States does not recognize the OIN as having governmental jurisdiction on any of the land that is the subject of the land into trust application, a fact that is clear from Sherrill.

In deciding that the OIN had no right to exercise tribal sovereignty on the subject lands, the Supreme Court in Sherrill held in substance that the land lacked reservation (and Indian country) status. The language of the Court's decision, which repeatedly characterized the reservation in the past tense, is entirely consistent with that conclusion.

Consequently, the application should have been treated under the OFF reservation regulation. The OFF reservation requires that greater weight be given to state and local concerns in assessing the application. In any event, the factors set forth in both sections militate against taking OIN land into trust. The Determination was therefore arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

My notes:
[Note: Whereas U.S.C. is United States Code and law as passed by Congress, C.F.R.'s are Code of Federal Regulations written by the bureaucracies themselves and are often changed or rewritten without Congressional oversight. They carry the weight of law but are often ignored by the bureaucracies that write them.]

[Note: 25 C.F.R. § 151.10(b) directs the Secretary of Interior to consider the tribe's need for the additional land. Now HERE is where we come into conflict with the State. At this point the state has already argued that the feds just cannot do what they are trying to do. There are multiple reasons why the tribe would not qualify under need.]

[Note: But the state's reasoning relates to the casino on line 150. "Turning Stone Casino and related facilities, which are located on 225 acres of land, are more than sufficient to secure the economic self-sufficiency of the OIN and its members." ]

[Note: There is more to this than pro or anti casino. The state WOULD allow trust land to be established and even ASKED for it to be established in the Catskills for a now failed casino deal with the Mohawk tribe. If the feds only approved that 225 acres for trust, or even a thousand acres, I think we'd have to sue the state to challenge them to file a lawsuit to defend sate sovereignty. So you can be happy the feds tried to grab 13,000 acres. But you should be aware that the state would be willing to cut a deal if it meant casino money, even if it meant setting precedent in allowing trust land to be established in New York State. None of the 13 colony states have any trust lands. There are some lands designated as restricted fee as agreed to by those states. Technically there is a difference because those states agreed to a settlement. But such lands still come under tribal jurisdiction. ]

[Note: 25 C.F.R § 151.10(e) directs the Secretary to consider the impact on the State and its subdivisions of the removal of the land from the tax rolls. The DOI Secretary ignored the state and subdivisions using solely the input from the BIA, which only represents the tribes.]

SEVENTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(b)

25 C.F.R. § 151.10(b) directs the Secretary to consider the tribe's need for the additional land. The ROD states that "a demonstration of necessity may take into account - economic need and may also consider the tribe's need for land to support self-determination and tribal housing."

The ROD contains no findings that support a conclusion that taking any amount approaching 13,003.89 acres of land into trust is necessary to satisfy any of these goals. Aside from general assertions such as that the Determination will "support tribal economic development," which is doubtless true whenever land is exempted from taxation and removed from local regulatory jurisdiction to which surrounding land held by non-Indians is subject, the ROD contains no particularized explanation for why the OIN "needs" to have 13,000+ acres of land taken into trust.

There is no reason why the OIN needs to, or should, enjoy the significant economic advantages over surrounding non-Indian businesses that come with having its land exempt from local taxes.

Turning Stone Casino and related facilities, which are located on 225 acres of land, are more than sufficient to secure the economic self-sufficiency of the OIN and its members. Upon information and belief, the enterprise value of Turning Stone Casino and related facilities was between approximately $2.15 and $2.60 billion as of December 31, 2006, which equates to approximately $2.2 to $2.6 million per enrolled member of the OIN and $6.3 to $6.7 million per OIN household.

Nor can tribal self-determination or housing justify the massive transfer of land into trust contemplated by the ROD. Together with the casino property, the land on which much of the OIN's governmental offices and housing for its members are located comprise slightly more than 1,000 acres.

The record does not support a finding that the OIN has need for the lands to be taken into trust. Therefore, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904906 --- 10/26/08 02:07 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

EIGHTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(e)
25 C.F.R § 151.10(e) directs the Secretary to consider the impact on the State and its subdivisions of the removal of the land from the tax rolls. Here, the Secretary failed to consider adequately this impact by simply claiming that the impacts of removing lands from the tax rolls are not significant when balanced with the benefits to the OIN of taking the lands into trust.
Significantly, the decision to take the OIN land into trust removes the land from the tax rolls of the localities. The decision was made without regard to the drastic consequences of this revenue loss. The combined annual anticipated loss of county, municipal and school taxes, resulting from the removal of all of the OIN parcels is estimated to be over $16.2 Million. This number does not take into consideration potential increases in the taxes on the subject parcels due to increases in tax rates and assessed value or increases resulting from future development and improvement of the property.

Given the OIN's demonstrated historical pattern of development, it is reasonable to assume it will continue to develop its properties profitably, and the loss of future tax revenue will be substantially greater in the future than is reflected by the current figures.

For example, OIN-owned properties represent, by value, approximately 48% of the taxable property in the Vernon-Verona-Sherrill Central School District. Such parcels represent about $10.2 Million in school district revenue annually.

Additionally, the total amount of acreage owned by the OIN in the Town of Stockbridge to be taken into trust alone constitutes approximately 14% of the Town's total acreage. The annual real property taxes (including school taxes) in Stockbridge that would be lost on these parcels is approximately $133,500.

The Town of Verona, where Turning Stone Casino is located, would be especially strongly impacted. The Town of Verona would experience an annual loss of over half of its total property tax levy.

The cumulative outstanding real property taxes on the OIN properties in Oneida County is over $46 Million, and the cumulative amount of delinquent taxes on the OIN properties in Madison County is $7.5 Million. The lost taxes represent a significant portion of the total tax revenues for the taxing authorities in question.

The tax effect is exacerbated by the unfair competitive advantage that the OIN would receive by having the land held in trust. Non-Indian business unable to compete may shut down, with an additional loss of tax revenues to the Counties in the form of lost property and sales tax.

The loss of taxes imposes the cost of local services used by OIN enterprises and members - schools, road and bridge maintenance and repair, police and fire protection - on a smaller group of non-Indian New Yorkers, increasing the cost for these services. Since the OIN receives the benefit of those services - e.g. Oneida children attend local schools, individual Oneidas and customers of OIN businesses use local roads and receive police and fire protection - the non-Indian community is footing the bill for these services for the OIN. This effect is particularly acute because in some cases, the demand for the services actually has increased as a result of OIN activity on OIN-owned land. For example, the Turning Stone Casino has resulted in dramatically increased traffic on local streets and higher demand for emergency services.

Further, the ROD gives undue credit to the OIN for those voluntary payments it sometimes chooses to make for municipal services. For example, the ROD refers to the OIN's provision of funds to the Verona Volunteer Fire Department through a "Voluntary Service Agreement." The ROD omits the fact that the OIN unilaterally changed the formula under which it made such payments to the Verona Volunteer Fire Department through the Voluntary Service Agreement. Such payments are extraordinarily important to the Verona Volunteer Fire Department as the Turning Stone Casino is over 1,000,000 square feet and over 20 stories tall and thus is by far the largest building in the Verona Volunteer Fire Department's service area.

Similarly, the ROD gives great weight to the OIN's "non-binding" commitment to continue paying for various services which it or its members use. The ROD ignores not only the history of the OIN's relationship with local governments but also that the OIN will lose its incentive to keep making voluntary payments after the subject lands have been taken into trust. Without justification, the ROD states that "it can reasonably be expected that the [OIN] will continue to pay local governments for services provided."

The ROD contains unwarranted conclusions with respect to mitigation of the direct revenue loss to Plaintiffs. One such conclusion is that any taxes paid by an OIN employee or vendor should be treated as payments made by the OIN for purposes of the ROD.

The ROD states that "[OIN] employees paid an estimated $5.55 million in local property taxes in 2004" and further that this amount is expected to be maintained or increase through 2011 if the subject lands are taken into trust. The ROD ignores the fact that many of the OIN's employees do not live in the Counties or the communities most directly affected by the Determination and therefore it is unreasonable to suggest that such governments are being made whole by property taxes paid by employees of the OIN.

The same unwarranted conclusion is implicit in the statement that "the [OIN] withheld and remitted $3.38 million in New York State income taxes from its employees in 2005." Moreover, the premise of the ROD's reliance on taxes paid by OIN employees - that the OIN is entitled to credit for taxes paid by others - is without basis.

Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904908 --- 10/26/08 02:11 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Note: NEPA stands for the National Environmental Policy Act. http://www.epa.gov/compliance/nepa/index.html It is law, but the feds never comply with it.

Note: 25 C.F.R § 151.10(f) directs the Secretary to consider jurisdictional problems and potential conflicts of land use that may arise. Arguments referring to SCOTUS ruling in Sherrill point out that while the DOI claims trust status would not affect health, safety, rights of way nor conflict with surrounding areas, the state points out that the Oneida tribe has already and continues to affect everything mentioned in the negative. To a great degree, this is not the state's fault because federal district Judge Hurd repeatedly ruled in the tribe's favor. He ruled that the reservation still existed, since overturned by Sherrill. Then he ruled that even though the U.S. Supreme Court ruled that the tribe's fee simple property in Sherrill was taxable, that the municipalities could not foreclose on the property because the tribe had sovereign immunity. His rulings get overturned, but years worth of damage get done in the process with federal courts barring the state from action. Rulings set precedence until they are overturned.
But the state itself is as much to blame for not enforcing the laws that it does have the authority to enforce and blatantly refuses to.

Note: 25 C.F.R § 151.10(g) directs the Secretary to consider whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of the land-in-trust status. The BIA can’t handle what it has and has been embroiled in billion dollar lawsuits for years.

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#904915 --- 10/26/08 02:20 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

NINTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(f)

25 C.F.R § 151.10(f) directs the Secretary to consider jurisdictional problems and potential conflicts of land use that may arise. The Determination failed to consider adequately potential land use and other jurisdictional problems, as detailed more fully below and in the NEPA claim herein.

Taking the OIN's lands into trust results in an unworkable jurisdictional patchwork which the Supreme Court expressly sought to avoid in Sherrill. At the heart of the Court's decision in Sherrill is the concern that allowing tribally-owned land located randomly throughout communities in Central New York to be removed from State and local jurisdictions would fundamentally and irreparably injure the affected communities by disrupting the "governance of central New York's counties and towns." The Court in Sherrill was particularly concerned about the effects of the OIN's position on local zoning and land use controls.

The Court's language reflects a recognition that communities cannot be maintained without the ability to govern in a coherent and comprehensive fashion.

The DOI's land-into-trust regulations were enacted before the Supreme Court decision in Sherrill. As a result, the regulations are silent as to evaluating the checkerboard jurisdictional problems that were of central concern to the Supreme Court. The problems of checker-boarding are dismissed or outright ignored in the ROD.

In fact, the decision to take into trust hundreds of parcels scattered throughout Madison and Oneida Counties, which would institutionalize a patchwork of tribal land holdings, is an obvious effort to circumvent the types of concerns articulated by the Court in Sherrill. It is also fundamentally at odds with one of the core purposes of the IRA, namely, to consolidate Indian holdings.

The dispersed and non-contiguous character of OIN holdings creates a host of jurisdictional and regulatory problems.

First, the effectiveness of a body of regulatory law rests on the ability of the state or local government uniformly to enforce certain laws throughout a broad geographic area. To the extent taking land into trust removes a particular piece of land from the scope of regulatory law it may render the law ineffective as to surrounding land as well.

Second, granting the application may place OIN land beyond the reach of the State's comprehensive environmental protection program, frustrating an important New York State policy of environmental protection.

Third, placing OIN land into trust may render inapplicable to OIN lands a significant number of laws and regulations that are intended to protect the health and safety of guests and employees of business establishments, preventing the State from providing such protection to its Indian and non-Indian citizens alike.

It is impossible to design and implement a unified and coherent zoning and land use plan when randomly located parcels within the community are not subject to local land use laws and can be developed for uses inconsistent with the overall regulatory framework. To the extent that OIN land taken into trust status is exempt from zoning and other land use law, it poses a significant obstacle to the non-Indian communities’ legitimate land use planning. The effect is particularly acute on individual landowners whose property is located adjacent to non-conforming tribal use.

The Determination would similarly impair the ability of local officials to monitor and enforce compliance with health, building, fire, and safety code requirements and other state and local regulations designed to benefit and protect all citizens in the area. These include food handling laws, weights and measures, clean indoor air act (smoking restrictions), adolescent tobacco use prevention act, and bottle redemption and deposit. The inability to monitor and enforce compliance with these laws may pose risks for visitors, emergency responders, and surrounding property owners.

The ROD never comes to grips with these significant regulatory problems. For example, the ROD acknowledges that the OIN has not obtained building permits or abided by zoning regulations but excuses this behavior by stating that "overall, the [OIN's] uses are generally consistent with local zoning and the uses of adjacent non-[OIN] lands,' with no discussion of the fact that THIS IS SIMPLY NOT TRUE in a number of critical areas, such as Turning Stone Casino.

Specifically, Turning Stone Casino was constructed on agricultural land, forever changed this land and was not consistent with adjacent uses. The casino complex includes a 120,000 square foot gaming floor, an arena and a 20-story hotel. Upon information and belief, the casino complex was constructed without regard for state and local building, zoning, environmental or fire codes. Further, the structures pose unique challenges to local emergency service organizations. Upon information and belief, the local fire department, for example, is not experienced in dealing with fires in high rise structures and there is a serious question as to whether there is adequate water pressure in the area to provide sufficient water to the higher floors of the hotel in the event of a fire. The ROD fails to address these concerns, noting only that the OIN's construction was appropriate because it 'was a key aspect of an enterprise that is essential to the self-sufficiency' of the OIN.

The ROD similarly does not address in any serious way the impact of potentially removing OIN land from application of State and local environmental laws. In response to comments that the OIN would not be subject to State and local environmental laws if the subject lands were taken into trust, the ROD simply notes that "the Federal government supports tribal self-determination." The ROD additionally notes that the OIN presently voluntarily complies with certain environmental standards without describing the Secretary's reason, if any, for believing that the OIN would continue abiding by such standards following the subject lands being taken into trust.

Accordingly, the Determination is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904916 --- 10/26/08 02:27 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

TENTH CAUSE OF ACTION THE DETERMINATION WAS MADE WITHOUT REGARD TO 25 C.F.R. § 151.10(g)

25 C.F.R § 151.10(g) directs the Secretary to consider whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of the land-in-trust status.

While the Secretary acknowledges in the ROD that the DOI has historically had difficulty administering trust lands, the ROD discusses the issue for less than one page and concludes, disingenuously, that management will not be a problem with respect to the subject lands.

The primary justification for such conclusion is that the Determination will "impose limited additional responsibilities on the BIA" as the property is being acquired for the purpose of providing the OIN with "sovereign authority over its reacquired lands."

This assertion is, of course, entirely inconsistent with both the express and implied assertions throughout the ROD that DOI management of the subject lands will somehow mitigate the problems that taking the subject lands out of the Plaintiffs’ jurisdiction will cause the affected communities.

The Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law because the BIA is clearly ill-equipped to discharge properly the responsibilities inherent in acquiring over 13,000 non-contiguous acres in Central New York. The Eastern Regional Office of the BIA, located in Nashville, TN, is approximately 800 miles away from Central New York. The ROD does not address whether or how the BIA will discharge its responsibility to administer and superintend OIN trust lands in Central New York.

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#904920 --- 10/26/08 02:31 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

ELEVENTH CAUSE OF ACTION THE DETERMINATION FAILED TO TAKE INTO ACCOUNT EXISTING EASEMENTS AND LEASES AND RIGHTS OF WAY

The ROD states that "placement of the [OIN's] lands into trust will not affect any valid existing rights-of-way." While this conclusory statement of law may be technically accurate it ignores the reality that the OIN has interfered with existing utility easements and also ignores the fact that the Determination does not require the OIN to waive its sovereign immunity with respect to the enforcement of existing easements or rights of way. As a result, it will be difficult or impossible for holders of easements or rights of way over the subject lands to enforce such easements or rights of way.

The inability to enforce utility easements and rights of way on the subject lands has created major public safety hazards in the past. For example, upon information and belief and as clearly discussed in comments from National Grid Corporation, in the fall of 2005, the OIN refused to grant the utility company National Grid access to a major natural gas pipeline that runs under an OIN-owned golf course until after conclusion of the golfing season. The OIN refused to grant access to such pipeline despite the existence of a valid easement and the fact that the utility company had determined, through remote inspection, that the pipeline was damaged. When National Grid was finally granted access to the pipeline in December 2005, it determined that the pipeline had been damaged by the OIN during the grading of its golf course or installation of a golf course drainage pipe. The Determination ignored the twin uncontroverted facts that the OIN failed to honor the easement rights of National Grid, and it failed to comply with New York's "Dig Safely" Program, designed to ensure that before any excavation is undertaken, underground utilities (such as pipelines) are marked out and not ruptured.

Similarly, without prior notice to National Grid, the OIN built a Heli-Pad and associated drainage installations in a location that encroached on one of National Grid's natural gas pipeline rights of way. Such construction was done without regard for National Grid's right of way or the danger of landing multi-ton helicopters in close proximity to a natural gas pipeline.

[Note: you see here why National Grid filed their own lawsuit. The state may mention problem areas, but fail to disclose the seriousness of the issue and also fail to protect National Grid's property rights.]

Upon information and belief, the OIN interfered with a City of Oneida water main that crosses several OIN parcels within a pre-existing, lawful 50 foot right-of-way. To protect water mains, New York State law requires prior notification to the water main operator by means of a one-call notification system of proposed excavation near a water main. The OIN has failed to notify the City of Oneida of OIN actions that would restrict City access to the water main for maintenance and that would subject the water main to possible damage. On one occasion the OIN threatened to excavate and cut off the water main; on another occasion OIN excavated and planned to place a fence on the water main right-of-way.

Upon information and belief, the City of Oneida also supplies sewer services to all properties within the City and maintains sewer line easements on OIN-owned property located in the City. To ensure the health and safety of all residents, these easements must be fully protected. An unregulated sewer system poses obvious public health and safety concerns.

Despite the ROD's conclusion that the Secretary's action will not alter easements and rights of way, the reality is that taking land into trust for the OIN will impair those rights in substantial part in light of the OIN's past posture and the sovereign immunity from suit enjoyed by the OIN and United States.

The Determination was also arbitrary and capricious, an abuse of discretion, and exceeded the Secretary's statutory authority because it failed to consider whether the OIN lands may be subject to existing easements, leases and rights of way or disregarded the existence of such easements, leases, and rights of way and fails to condition taking of the subject lands into trust upon the existence of an enforcement mechanism for such easements, leases, and rights of way, such as a waiver of sovereign immunity by the OIN and the United States.

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#904922 --- 10/26/08 02:38 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

Abbr: Federal Environmental Impact Study (FEIS); National Environmental Policy Act (NEPA)

TWELFTH CAUSE OF ACTION THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW BECAUSE THE OIN HAD NOT SATISFIED OUTSTANDING TAX LIENS, AS REQUIRED BY 25 C.F.R. § 151.13

25 C.F.R. §151.13 mandates that prior to taking land into trust, the Secretary 'shall require elimination" of 'liens, encumbrances, or infirmities [that] make title to the land unmarketable." Further, it is Departmental policy not to accept into trust lands that are encumbered by tax liens.

[Note: That means all the taxes have to be paid up. The Oneida tribe has not done so and the DOI approved the trust applications anyway.]

There are outstanding tax liens on the OIN lands resulting from the OIN's refusal to pay real property taxes required by Sherrill. Such taxes are owed by the OIN and the liens relating to those taxes must be eliminated before the lands are taken into trust.

The ROD states that such tax liens have been "addressed" by the OIN's provision of letters of credit in favor of the Counties, the terms of which were unilaterally dictated by the OIN. The letters of credit did not "eliminate" the tax liens on the subject lands or make title to the subject lands "marketable" as 25 C.F.R. § 151.13 requires prior to the Secretary taking land into trust.

In fact, under New York law tax liens remain on land until the taxes are paid and the existence of such liens renders title unmarketable. Further, the letters of credit issued in favor of the Counties are highly restrictive and do not in any event come close to guaranteeing the full amount owed by the OIN to the Counties.

For example, an independently conducted 2005 valuation of the 225-acre lot that contains Turning Stone Casino estimated the value of such lot, as improved, to be $362.55 million. The Secretary has erroneously determined that the OIN will only be required to provide a letter of credit with respect to taxes due on the Turning Stone Lot based on a valuation of $22.5 million.
Because the Secretary did not require elimination of the tax liens on the subject lands or that the OIN provide marketable title to the subject lands as is mandated by 25 C.F.R. 151.13, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904931 --- 10/26/08 02:48 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

[Note: NEPA requires that planning documents must be unbiased and fully disclose all impacts. The BIA and DOI are not only overtly biased but their studies and records of decision border governmental racist racketeering. While the C.F.R. is only a regulation, NEPA is an act of law so it can hardly be disregarded.]

THIRTEENTH CAUSE OF ACTION THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION, AND OTHERWISE NOT IN ACCORDANCE WITH LAW BECAUSE THE POTENTIAL ENVIRONMENTAL CONSEQUENCES OF TAKING THE LANDS INTO TRUST WERE IGNORED IN VIOLATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT

The Determination failed to comply with NEPA. NEPA requires the Secretary to "take a hard look" at the environmental impacts and consequences of taking lands into trust.

The environmental review conducted by the DOI and the Secretary, as reflected in the FEIS issued in February 2008, erroneously and arbitrarily concluded that there would be no direct environmental impacts that would result from the transfer of lands into trust.

The superficial environmental review conducted by the DOI and the Secretary relied on faulty logic and incorrect assumptions to rationalize the Secretary's decision regarding the OIN's trust application, in violation of regulations implementing NEPA, which provide that "environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made."

For example, the purported analyses of alternatives in the FEIS and the ROD rely on four "taxation/jurisdiction scenarios," two of which are: Property Taxes Not Paid and Dispute Continues and Casino Closes and All Enterprises Close. By accepting the draft EIS and FEIS for publication, BIA endorsed the use of these scenarios.

As the Plaintiffs made clear in their comments, the casino and all enterprises close scenario is a false "strawman." Indeed, the ROD itself repeatedly states, without explanation since none is needed, that the "Department disputes" it. Nonetheless, throughout the draft EIS and the FEIS, BIA relied on this scenario as the principal justification for discounting any alternative which would not result in at least 13,000 acres of land being taken into trust. Reliance on assumptions such as these in an EIS renders the EIS invalid and requires a new EIS or, at least, a supplemental EIS which uses rational assumptions and scenarios.

The Property Taxes Not Paid and Dispute Continues scenario is also used throughout the FEIS and the ROD (with no apparent "dispute" by the Department). The Property Taxes Not Paid and Dispute Continues scenario assumes that, despite the decision in Sherrill and the DOI's denial of all or part of the OIN's land-into-trust application (meaning that denied lands would be subject to taxation), the OIN will continue to refuse to pay legally owing taxes. The OIN's past, current and future refusal to pay taxes regardless of decisions of the Supreme Court and the DOI was an accepted factor in evaluating the impacts of any alternatives other than those which granted the OIN's request in its entirety. Reliance on the future illegality of an applicant's action is patently unreasonable in evaluating the impacts of a proposed action under NEPA.

The Property Taxes Not Paid and Dispute Continues scenario, which is a key part of the analyses in the FEIS and ROD, recognizes that the OIN has not obeyed, does not obey and will not obey laws: a recognition well founded on the OIN's demonstrated violation of land use, health, safety and environmental laws. Nonetheless, despite the recognition of the OIN's expected refusal to obey laws, the FEIS, as mitigation, expresses confidence that the OIN will obey federal law and will "consider" but not be bound to, requirements of state and local land use, health, safety and environmental laws.

Further, based on the OIN's incorrect assertion that its property was exempt from state and local regulatory laws, which has now been rejected by the Supreme Court in Sherrill, the OIN has NEVER complied with state or local land use or environmental laws NOR, in some cases, federal environmental laws and regulations. . For example, the OIN has recently constructed and commenced operation of a cogeneration plant near their Turning Stone Casino without having first obtained the necessary permits and approvals under the Clean Air Act. The OIN built Turning Stone Casino itself without first obtaining necessary permits and approvals or complying with applicable State and local laws. Similarly, upon information and belief, the OIN has constructed numerous golf courses without any permits or legally mandated environmental review.

In addition, upon information and belief, the OIN has violated other laws critical to the public welfare including dumping, wetlands, and storm sewer regulations, fire safety and building codes, and laws regulating the storage of gasoline.

Upon information and belief, based on past and ongoing rapid development of land by the OIN it is reasonably foreseeable that there will be continued development thereon. The suggestion that the transfer of the land into trust will not result in any changes entirely ignores this reality.

The record before the DOI and the Secretary shows that the transfer of lands into trust will have direct and significant adverse environmental impacts. The conclusion of DOI and the Secretary arbitrarily and capriciously ignored the demonstrated significant adverse environmental impacts of taking lands into trust in the record before them.

The Determination failed to consider proper alternatives that would mitigate environmental impacts and consequences, as required by NEPA. Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904939 --- 10/26/08 02:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

FOURTEENTH CAUSE OF ACTION THE DOI FAILED TO CONSIDER CUMULATIVE IMPACTS OF THE TRANSFER AS REQUIRED BY THE NATIONAL ENVIRONMENTAL POLICY ACT

The ROD states that "because the [OIN] is proposing no change in land use or ground-disturbing activity as part of the Proposed Action, resource categories related to the physical environment (e.g., soils, groundwater, air, noise, wildlife, vegetation, wetlands, etc.) would not be subjected to unavoidable adverse impacts as a result of implementing the Proposed Action or one of the alternatives." In reaching this conclusion, BIA violated the express requirements of NEPA.

NEPA implementing regulations expressly require that an agency consider the direct and indirect effects of its action as well as the cumulative impacts of the action "when added to other past, present and reasonably foreseeable future actions [of any agency or person]."

The ROD improperly relies on the inaccurate conclusions of the FEIS that "there have not been significant adverse effects on environmental resources" as a result of OIN's past management of its lands without compliance with state - and, in some cases, federal - environmental requirements. In fact, the Plaintiffs have documented significant potential and actual adverse effects of such noncompliance on both OIN and non-OIN lands as a result of the OIN's noncompliance with state laws governing, inter alia, protection of wetlands, groundwater and surface waters and wildlife, air emissions, solid and hazardous waste regulation, and petroleum bulk storage and spill response. Among the known instances of OIN noncompliance resulting in adverse environmental effects are:

* Construction and operation of a major air pollution source with the potential to emit more than 150 tons per year of nitrogen oxide, without the required state and/or federal permit that would allow for monitoring of emissions that directly impact air quality on non-OIN lands, including the nearby Vernon-Verona-Sherrill Central School District campus.

* Construction activities related to the development of Turning Stone Casino causing permanent destruction or impairment of state and federal jurisdictional wetlands and consequential impairment of adjacent wetlands, ground and surface waters and wildlife habitat, on both OIN and non-OIN lands.

* The OIN practice of building demolition and burial of debris on-site without regard to appropriate disposal practices, posing a direct threat of contamination of groundwater on both OIN and non- OIN lands.

* The OIN's operation of numerous gas stations without the stringent oversight of state regulations governing the storage of petroleum, and without allowing state access for spill response, which poses a serious and imminent threat to groundwater quality on both OIN and non-OIN lands.

These past actions and others by the OIN resulting in adverse environmental impacts were required by NEPA to be considered by the DOI on a cumulative basis with the current transfer of land and change of jurisdiction.

In addition, the DOI completely failed to consider the foreseeable future actions by the OIN that must also be considered on a cumulative basis with the transfer of title. The DOI improperly accepts at face value the OIN's representations that there will be no change in the use of the land after transfer. To the contrary, the OIN has repeatedly expressed its intentions to continue to expand and diversify its economic activity, and these future actions on lands taken into trust will foreseeably result in environmental impacts on both OIN and non-OIN lands that NEPA requires the agency to consider.

Accordingly, the Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.

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#904948 --- 10/26/08 03:02 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

Abbr: Freedom Of Information Act (FOIA)

Note: Title 43 C.F.R. PART 2 is the Code of Federal Regulations covering the Department of Interior's requirements for complying with the Freedom of Information Act.

Note: 40 C.F.R. § 1506.6 2 is the Code of Federal Regulations covering additional requirements under the National Environmental Policy Act.

FIFTEENTH CAUSE OF ACTION THE DOI VIOLATED FOIA AND 43 C.F.R. PART 2

Plaintiffs requested under FOIA access to all documents and evidence submitted in regard to the OIN's land in trust application. The requested documentation contained the evidentiary basis upon which the DOI would render the Determination.

The ability of the Plaintiffs to exercise their constitutional rights to have notice and be heard relative to the OIN's land-into-trust application, required open and fair access to the documents submitted by the OIN in support of its application, which were reviewed and apparently accepted uncritically by the DOI in issuing the Determination.

Under FOIA, the DOI ordinarily is allowed 20 workdays from the date of receipt of a FOIA request to determine whether to grant or deny the FOIA request but is allowed to take an additional 10 workdays to collect and examine voluminous requests. More than 19 MONTHS after the initial FOIA request was submitted by Plaintiffs, Plaintiffs have YET to receive the requested FOIA documents.

As of the date of this Complaint, the DOI has been in receipt of a check in the amount of $9,540, DOI's estimated cost for the full production of the documents responsive to the FOIA request, for over fourteen months.

In May 2007, the FOIA coordinator for the BIA's Eastern Region Office informed Plaintiffs that the responsive FOIA documents were under review in the U.S. Solicitor's Office and would be provided to Plaintiffs in early June.

Thereafter, Plaintiffs had regular, repeated conversations with such FOIA coordinator, and her subsequent replacement, regarding the status of the document production in response to the FOIA request and, each time, Plaintiffs were assured that the Solicitor's Office was in the process of reviewing the documents and Plaintiffs would receive the documents shortly.

In response to Plaintiffs' frequent inquiries as to the status of the response that had already been paid for, on January 9, 2008 Plaintiffs received a letter from the Acting Director of the BIA's Eastern Region office informing Plaintiffs that the Solicitor's Office intended to complete its review by January 25, 2008.

In good faith, Plaintiffs have relied on the DOI's frequent and repeated promises to provide the documents requested.

By withholding these critical documents, Defendants substantially impaired the ability of Plaintiffs to provide meaningful comment on the draft EIS and the FEIS.

Defendants' conduct, by failing to turn over documents necessary to evaluate the land-into-trust application despite repeated requests and promises to do so, left Plaintiffs without a remedy as an administrative appeal would have been futile in that Defendants had continually maintained that all of the responsive documents were going to be produced and Plaintiffs had already paid for the document production.

Defendants' failure to provide Plaintiffs with the responsive documents pursuant to FOIA is a violation of FOIA and the DOI's own regulations.

Defendants' illegal failure to comply with Plaintiffs' requests presents particular problems with respect to the request for copies of Oneida Ordinances and Codes, which Plaintiffs have never had the opportunity to review. The EIS listed the Oneida Ordinances and Codes in support of DOI's conclusion that the land transfer and accompanying change in regulatory jurisdiction would have no environmental impact, but also expressly refused to provide any comparison between Oneida and New York State regulatory provisions. Defendants' reliance upon these materials in the Determination, and simultaneous refusal to provide them to Plaintiffs, deprived Plaintiffs of the opportunity to respond meaningfully to DOI's conclusions.

Defendants' acts and omissions in violating FOIA and the DOI's own regulations rise to the level of a constitutional violation inasmuch as that conduct deprived Plaintiffs of documentation and information as to which public access was mandated by law and such public access was necessary for Plaintiffs to exercise their due process rights meaningfully.

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#904953 --- 10/26/08 03:10 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Fee to Trust plain language: lawsuit by the state, Madison & Oneida Counties continued.

SIXTEENTH CAUSE OF ACTION THE DOI FAILED TO DISCLOSE THE DOCUMENTS UNDERLYING THE ENVIRONMENTAL IMPACT STATEMENT AS IS MANDATED BY 40 C.F.R. § 1506.6

NEPA's implementing regulations mandate that any agency preparing an EIS "make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of [FOIA], without regard to the exclusion for interagency memoranda"

The DOI has violated FOIA by failing to produce "underlying documents" relevant to the EIS.

The DOI's failure to comply with FOIA, as is mandated is an independent violation of NEPA's implementing regulations and, further, frustrates the requirement that the Secretary solicit the views of local and state governments affected by a proposed land-into-trust transfer prior to ruling on such a request.

The Determination was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law as the Determination was based on an EIS which was drafted in a manner inconsistent with NEPA and its implementing regulations.

This concludes the complaint filed by the State of New York, Madison County and Oneida County. The entire 60 page document can be read by clicking on this url:
http://www.upstate-citizens.org/oneidas_lawsuit.pdf

The nature of the action, venue, facts presented and reelief requested comprise 26 pages in addition to the arguments presented. The whole document is 60 pages. All I presented here were the arguments.

More Fee to Trust lawsuits to follow.

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#905021 --- 10/26/08 04:48 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications by
the Town of Verona, Town of Vernon, Abraham Acee, and Arthur Strife:
Found in entirety at http://www.upstate-citizens.org/CPvernon-verona-CM.pdf
All I present here are the claims for relief.

Note: While the state did argue against the feds right to just take state land, it FAILED to argue state preemption rights. That's the first argument filed by this lawsuit. In this they also argue the Tenth Amendment that the state argues in its second point and the Constitutionality of 465 that the state argues in its first point.

Note: 25 U.S.C. § 478 specifies that a tribe must accept the IRA to be qualified for the benefits, which include application for trust lands.

Note: Various arguments are the same as the state's, but the presentations vary Ex: this lawsuit points out that the provisions under the IRA trust benefits were extended to all tribes under the Indian Consolidation Act of 1983. Then it follows through noting that THAT act ONLY applied to tribes that HAD federal trust lands and wished to consolidate them. So it still doesn't apply to the Oneida or Cayuga tribes. The purpose of THAT act was to concolidate EXISTING trust lands.

FOR A FIRST CLAIM, Congress lacks the power to pass a law giving the U.S. Secretary of the Interior the authority to take sovereign land of the State of New York and remove it from that State's jurisdiction, and, in particular, Congress has no power to allow Federal officials to take such lands from one of the original 13 colonial States and remove such land from its jurisdiction and control without its consent.

New York State is one of the original 13 colonial states that adopted the U.S. Constitution in 1789, and at the time of and immediately following such adoption, there were no federally owned public lands or federally recognized Indian reservation land in the State of New York, including the lands the Defendant Secretary intends to take into trust that are the subject of this action.

While, pursuant to the so-called "Indian Commerce Clause" of the U.S. Constitution, Congress was delegated the power by the 13 colonial states to regulate commerce among the Indian nations, neither that clause nor any subsequent amendment to the U.S. Constitution empowered the Congress and/or any official of the U.S. Government to acquire land in any such colonial state so as to remove jurisdiction and sovereign control by such state over said land.

No state can be required to surrender sovereignty over any land within its borders and subject to its sovereign control and jurisdiction without its express consent, and New York State, and, in particular, the New York State Legislature, has not given its consent with respect to the land here in question. Under New York State's Constitution and separation of powers, only the Legislature is vested with the power to make major policy decisions such as this.

Powers not delegated by the U.S. Constitution to the U.S. Government nor prohibited by it to the states are reserved to the states or to the people, respectively. U.S. Constitution, Amendment X.

Under the New York State Constitution and laws enacted pursuant thereto, the Plaintiff Towns of Vernon and Verona are democratically-elected governmental entities subordinate to New York State but have the power under New York State law to enact local laws and regulations governing the health, safety and welfare of its inhabitants and people and entities acting or doing business within its borders and such towns are further empowered under the New York State Constitution and laws enacted pursuant thereto to levy property taxes on land within their borders.

If the Defendants' actions challenged herein are implemented, Plaintiffs Acee and Strife, who are taxpayers and citizens of New York State in the Towns of Vernon and/or Verona and who are eligible to vote to elect their state and town representatives, will be deprived of their right to have their elected officials fully carry out the responsibilities and duties for which they were elected.

If the Defendants' actions challenged herein are implemented, the Plaintiff towns will be illegally and unconstitutionally deprived of their power to exercise the control and taxing authority over lands within their borders which powers are given to them under New York State's laws and regulations.

Section 5 of the IRA is, therefore, an unconstitutional usurpation of power by the U.S. Government in violation of the 10th Amendment to the U.S. Constitution insofar as it applies to the State of New York, its political subdivisions and its citizens. It is in derogation of the rights, powers and sovereignty of the State of New York and its political subdivisions, including the Towns of Vernon and Verona, and is a violation and impairment of Plaintiffs Acee and Strife's right to vote and to have a proper "voice" in the policies to be adopted by their elected representatives in the Legislature of the State of New York, the Executive Branch of the State of New York, and the respective towns in which they reside.

Plaintiffs have no other adequate remedy at law.

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#905036 --- 10/26/08 05:32 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications by
the Town of Verona, Town of Vernon, Abraham Acee, and Arthur Strife:

FOR A SECOND CLAIM the provisions of Federal Law which Defendants have invoked to justify their actions, do not apply to land in the State of New York and, even if they otherwise did apply, they do not and were never meant by Congress to apply to the OIN which elected not to be governed under the IRA guidelines.

The Indian Reorganization Act of 1934 was enacted by Congress to reverse the policy of "assimilation" that had theretofore been official U.S. policy to Indians for at least the prior 50 years. Under the "assimilation" policy, the U.S. Government had sought to encourage Indians to shed their cultural ties and heritage and to become integrated into American society.

The Dawes Act gave the U.S. Government the authority to carve out from existing "reservations" under the control of the U.S. Government up to 160 acres of land to be thereafter allotted to individual Indians affiliated with the Tribe residing on the affected "reservation." At the time of the enactment of the Dawes Act, there was no land in New York State that was "reservation" land under the control or jurisdiction of the U.S. Government, nor were there any allotments made with respect to any such land in New York State.

The IRA authorized the Secretary of the Interior to restore any surplus in unalloted lands back to "reservation" status.

Under Section 5 of the IRA, the Secretary was authorized to take land into trust for the benefit of Indian tribes to help restore the identity of such tribes and to encourage their economic development and welfare.

Congress, however, did not intend to have the IRA apply other than to land or tribes which had previously been the subject of the allotment policy. The allotment policy had never been applied under the Dawes Act to the land which the Defendants intend to take into trust in this action.

By its very terms, the IRA applies only to tribes which, at the time of its enactment in 1934, were Federally recognized and under Federal jurisdiction. The OIN was neither Federally recognized nor under Federal jurisdiction in 1934 at the time of the enactment of the IRA.

[Note: KEY point here - the New York Oneida tribe was NOT federally recognized in1934! Why? Because, like the Cayuga, they were merely a dissident faction of the real tribe. The state, again, FAILED to bring this out in THEIR lawsuit. Why would the state not jump at the chance to have this gang derecognized from a list they were merely added to in 1980? Because then the state would lose the chance to sustain the illegal casino which donates to candidates and political parties. It CAN'T be with the prospect of getting a valid state compact because the state has jurisdiction NOW to close down the illegal operation. Until THAT is done, the tribe holds all the cards.]

[Note: The State used the casino as an example of why the Oneida tribe did not need any more in their seventh argument. The state's ninth argument notes that the casino has violated almost every land use, safety, and environmental law there is. The state's seventeenth argument makes the point that there is a two step process involved in approving lands into trust for casinos. But not ONCE did the state touch upon or mention Peterman v. Pataki (UCE's lawsuit) that ruled the casino illegal. It is the STATE that is at fault here for CREATING many of the problems we have by NOT enforcing existing laws under its OWN jurisdiction.]

Even if the IRA otherwise applied to OIN, Section 18 of the IRA, provided that any Indian tribe could opt NOT to have the provisions of the IRA applied to it. As the Defendants admit the OIN chose NOT to have the IRA apply to it.

The Defendants, however, cite a provision adopted in 1983 as part of the Indian Land Consolidation Act (25 U.S.C. § 2202) which they say "extended the provisions of Section 5 of the IRA to all tribes - Therefore, no statutory limitation on acquiring land into trust is applicable to the Nation's request."

The Defendants, however, OMIT the fact that the definition of "tribe" in 25 U.S.C. § 2201, which defines Indian tribe for the purposes of the Indian Land Consolidation Act, including 25 U.S.C. § 2202, means "any Indian tribe - for which, or for the members of which, the United States holds land in trust." The Defendants themselves admit in their ROD that they do not hold any lands in trust for OIN.

The Defendants' regulations which purport to implement their powers under are set forth in 25 C.F.R. Part 151. 25 C.F.R. § 151.3 requires that land may be taken into trust "when such acquisition is authorized by an act of Congress." Congress has not enacted legislation to authorize the U.S. Secretary of the Interior to take into trust the specific land here at issue.

The Defendants have, therefore, acted in excess of their authority and without any specific or proper delegation of authority in taking the land into trust in this case.

For the reasons set forth in this Complaint, the IRA, does not apply to the OIN and Defendants' actions, therefore, are illegal and without any basis in law, and Plaintiffs have no other adequate remedy at law.

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#905045 --- 10/26/08 05:45 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications by
the Town of Verona, Town of Vernon, Abraham Acee, and Arthur Strife:

FOR A THIRD CLAIM: Even if the statute were otherwise constitutional and applicable to the OIN, the unprecedented action taken by Defendants in removing over 13,000 acres of land from a State's jurisdiction is arbitrary, capricious, an abuse of discretion and not otherwise in accordance with law.

Even if foregoing arguments otherwise applied to New York State and to the land here in question, the decision by the Defendants to take the land into trust was nevertheless arbitrary, capricious and an abuse of discretion.

Much of the analysis in the Defendants' ROD is predicated and hinges on the erroneous assumption that the operation by OIN of the Turning Stone casino is legal, when, in fact, it is not.

Even if the subject lands could otherwise be taken into trust, that would not legalize OIN's operation of the casino at Turning Stone because, under IGRA, Indian gambling on land acquired in trust after IGRA's enactment is illegal.

Moreover, OIN does not qualify under for any of the exceptions to the prohibitions set forth in the Indian Gaming Regulatory Act. The Governor of the State of New York has made no conclusion with respect to the absence of a detrimental effect on the surrounding community from such gaming and the lands in question are not being taken into trust pursuant to the settlement of the land claim or as part of an initial Indian reservation or for the restoration of Indian lands.

The decision by Defendants inappropriately rewards unlawful behavior by perpetuating an ongoing flagrant violation of state and federal law.

The Defendants' actions would create a jurisdictional nightmare, resulting in the very confusing and chaotic situation that the U.S. Supreme Court said should be avoided in its 2005 decision in City of Sherrill.

The Defendants' actions are predicated on the assumption and/or assurances of the OIN that it will not seek to engage in further ground-disturbing activities or other activities incompatible with local land use and local governmental controls.

Whatever assurances, if any, the OIN has given or will give with respect to its future use of the land in question is not legally binding or enforceable such that OIN would, subsequent to the land being taken into trust, be free to undertake actions that are beyond the ability of the Plaintiff towns to prevent, control or regulate. See, In Re Gaming Ordinance of the Ponca Tribe of Nebraska (National Indian Gaming Commission dated December 31, 2007) (Tribe's promise not to engage in gambling if lands are taken into trust is neither legally binding nor enforceable when Tribe later sought to undertake such gambling).

If the subject lands are taken into trust, OIN would be free to undertake actions, activities and land usages that are incompatible with local zoning and land use regulations and beyond the reach of state and local authorities.

The land into trust statute was intended to benefit Indian tribes, but was not designed to establish enclaves that would give such tribes or members thereof an unfair economic advantage vis-à-vis other non-Indian taxpayer entities who operate small businesses in the same locality such as the individual Plaintiffs herein.

If the decisions of the Defendants herein are implemented, there would be nothing to prevent the OIN from owning and operating restaurants and taverns in direct competition with the individual small business owners who are Plaintiffs in this action, and the OIN could do so without having to comply with state and local laws regarding the operation of such businesses.
The decision of the Defendants is unprecedented in that it takes an enormous parcel of land in the middle of a populated area overwhelmingly inhabited by non-Indians that has been governed for over two centuries by other governmental entities and strips such governments from any further jurisdiction, control or regulation over said land.

For the reasons set forth, the actions of the Defendants are illegal, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law and Plaintiffs have no other adequate remedy at law.

[The towns only made three arguments.]

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#905135 --- 10/26/08 06:55 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

Located at http://www.upstate-citizens.org/cera-complaint.pdf

FIRST CLAIM FOR RELIEF The Indian Reorganization Act of 1934 ("IRA") As applied in New York is a violation of 5 U.S.C. § 706. http://www.law.cornell.edu/uscode/5/706.shtml

The IRA is a federal public domain statute, that ONLY applies to federal lands. New York is an original colony where there are currently no federally owned public lands outside of defense installation and post offices.

The Indian Reorganization Act (IRA) requires that: "Title to any lands or rights acquired pursuant to this Act ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation."

The plain meaning of Section 5 of the IRA was that ONLY the acquisition methods, as enacted by Congress, were delegated to the Secretary of the Interior to accept lands into federal trust status for an Indian tribe.

Until 1978, all lands restored to tribal sovereignty under the IRA were acquired by direct appropriation of Congress under the Property Clause. HOWEVER, interestingly, the federal government has admitted in legal briefs that BOTH the Property Clause AND the Enclave Clauses ONLY apply to Federal Indian Land. [Note: the lawsuit says "neither" when it should have read "only" ] Since there is NO Federal Indian Land in New York, the Secretary has NO power to take the land using the Property or the Enclave Clause.

The IRA EXPRESSLY limited to Congressional appropriations of NO MORE THAN two million dollars per year. The value of the lands in the instant case alone exceed two million dollars per year.

The IRA designates different requirements for acquired additional lands from "restored" lands either surplused or otherwise disestablished from a federal Indian reservation of federal public land reserved by treaty, executive order or act of Congress.

Restored lands regained their tribal territorial status as tribal land if it was deemed by the Secretary of the Interior to be IN "THE PUBLIC INTEREST."

As INTENDED by Congress in passing the IRA, subjecting the purchase of lands to be restored to Indian Tribes to express Congressional appropriations was and is an express LIMITATION on the discretion of the Secretary of the Interior required by the Property Clause that vests sole discretion in the management of property and acquisition of territory in the Congress.

The ONLY other clause of the Constitution of the United States that allows the federal government to purchase land is the Enclave Clause. Lands purchased under the Enclave Clause requires the consent of the Governor of the State for federal jurisdiction to vest. However, as admitted by the government and cited above, neither the Enclave clause nor the Property clause apply in New York.

No other clauses exist in the Constitution for the federal government to acquire ownership of land. Neither Section 5 of the IRA or 25 U.S.C. § 465 have been amended by Congress since 1934. Only two minor amendments for specific Indian tribes have been added.

Neither Section 5 of the IRA or 25 U.S.C. § 465 have been amended by Congress since 1934. Only two minor amendments for specific Indian tribes have been added.

As currently defined, the federal regulation that asserts the discretion of the Secretary of the Interior to accept lands owned in fee by the Tribe into federal trust status is 25 C.F.R.§ 151.3:

"Land acquisition policy. Land not held in trust or restricted status may ONLY be acquired for an individual Indian or a tribe in trust status when such acquisition is authorized by an act of Congress. No acquisition of land in trust status, shall be valid unless the acquisition is approved by the Secretary. (A) SUBJECT TO THE PROVISIONS CONTAINED IN THE ACT of Congress which authorize land acquisition, land may be acquired for a tribe in trust status: (1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing."

Expanding the methods by which lands can be conveyed into trust status violates the plain meaning of the appropriative restriction of Section 5 of the IRA.

Only Congress can extend the federal Indian trust to include lands purchased by or donated to an Indian tribe.

Other acts of Congress including 46 Stat. 1106, as amended by 82 Stat. 171, codified as 25 U.S.C. § 451 but not adopted as part of the Johnson-O’Malley Act or as part of the Indian Self-Determination and Education Assistance Act, cannot be interpreted by the Secretary of the Interior as authorizing an expansion of the Indian trust or his authority to accept donated or transferred Indian lands into trust status pursuant to 25 U.S.C. § 465.

Without the appropriative RESTRICTION of Section 5 of the IRA, the asserted authority of the Secretary of the Interior to accept lands into federal trust status as currently defined in 25 C.F.R. § 151.3 is unlimited.

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#905143 --- 10/26/08 07:06 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

FIRST CLAIM FOR RELIEF - [First Claim continued}

Lands taken into federal trust that are not purchased pursuant to Section 5 of the IRA CANNOT restore tribal sovereignty UNLESS the fee title to the lands and aboriginal title are assumed to become unified, which was REJECTED as in the Sherrill decision.

In fact, without a direct act of Congress to appropriate land for a tribe and remove it from state jurisdiction, the Secretary has NO authority under the IRA to remove lands from the State or local tax base.

The assumption that federal Indian common law authorized the Secretary of the Interior to accept lands into trust status was in reality, unilaterally promulgated by the Secretary of the Interior, (in 1980) WITHOUT the proper authorization from Congress.

In fact, these unilaterally expanded regulations that included accepting fee land of the tribes into federal trust status, were declared unconstitutional in South Dakota v. Babbitt (1996).

The new regulations for were promulgated in 2004 and revised again and published on May 19, 2008.

The Sherrill decision cites explicitly to these new regulations as "Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stake in the area's governance and well-being" and as "sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory."

These jurisdictional concerns are not addressed by the defendant's limited Final Environmental Impact Statement (FEIS), nor are they addressed in the Secretary of Interior's Record of Decision (ROD).

Before approving an acquisition, the Secretary must consider, among other things, the tribe's need for additional land; the purposes for which the land will be used; the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; and jurisdictional problems and potential conflicts of land use which may arise.

The ROD states, "the purpose of the Proposed Action is to help address the Nation's need for cultural and social preservation and expression, political self-determination, self-sufficiency and economic growth by preserving a tribal land base and homeland."

Defendant's assert the authority to do this in the ROD pursuant to the new regulations. In effect, the defendants are asserting the authority to create a federal Indian reservation in New York where no federal Indian reservation has ever existed.

The President is expressly prohibited from making any more Indian reservations. See Indian Appropriations Act of 1919, Section 27, 41 Stat. 3, 34. Congress reserved to itself the exclusive right to make a new Indian reservation, but ONLY on lands under federal superintendence.

The interpretation by the Secretary contained in the ROD allowing him to carve out OIN land from the jurisdiction of the State of New York is arbitrary, capricious and not in accordance with law, for asserting the right to create federal Indian land for the Oneidas where it never existed.

Attempting to create federal Indian land for the first time in New York State violates the separation of powers. By subverting the exclusive authority of the Congress pursuant to the Property Clause and by subverting the sovereign authority of the State of New York by attempting to establish sovereign rights in the Oneidas that were not reserved to them before statehood, separation of powers is violated. This would clearly disrupt the settled governance of New York more than 200 years after the Oneidas conceded all of their sovereignty in the Treaty of Fort Stanwix (Fort Schuyler).

Section 18 states, "This Act shall NOT apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application." The OIN voted in compliance with the statute to REJECT the application of the IRA.

[Note: the lawsuit itself reads "shall" apply, not "shall NOT apply". It is another screw up.]

As indicated above, the IRA was implemented to remedy the allotment policy under the Dawes Act. There were no allotments made in New York under the Dawes Act and Congress did not intend for the IRA to apply to lands that were not subject to the Dawes Act.

There is no evidence to support the fact that OIN was a recognized tribe nor under federal jurisdiction at the time of the enactment of the IRA in 1934. Further, the OIN voted to opt out of the application of the IRA as indicated above.

25 C.F.R. §151.3 requires that land may be taken into trust only when the acquisition is authorized by Congress. There is no Act, statute or regulation in existence that authorizes the Secretary to take the land that is the subject of the ROD into trust on behalf of the OIN.

Therefore, the actions of the defendants are in excess of their authority, have no basis in law and must be enjoined by this court as Plaintiffs have no other adequate remedy at law.

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#905157 --- 10/26/08 07:16 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

SECOND CLAIM FOR RELIEF The Secretary's Misapplication of 25 U.S.C. § 465 in New York violates the 10th Amendment

Article I, § 1, of the U.S. Constitution provides that, "All legislative powers herein granted shall be vested in a Congress of the United States. . ." Congress writes the laws that delegate some of its lawmaking authority to the executive branch and its unelected bureaucrats. However, the literal hijacking of state sovereignty and jurisdiction by an administrative agency under the executive branch, as in this case, is an egregious overreach by an agency in derogation of the rights, guaranteed to states under the Constitution.

The U.S. Constitution, Amendment 10 states: "Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The ROD states that it derives its power from the Indian Commerce Clause, U.S. Constitution, Article I, § 8, clause 3. The commerce clause is broad, but is not unlimited. The Indian Commerce clause's grant of authority to Congress does not empower the executive branch to remove land from sovereign state control, especially when the land in question is not designated as "Indian Country." New York has not consented to the cessation of its sovereign control over the lands in question. The Supreme Court in Sherrill expressly ruled that the subject lands are not Indian Country, and not under federal superintendence.

Therefore, the misapplication of Section 5 of the IRA and its implementing regulations is an unconstitutional power grab prohibited by the 10th Amendment to the Constitution as applied in states such as New York, that retained its right of pre-emption. 100. Plaintiff’s constitutional rights as state citizens are only protected if the sovereign authority of the State of New York is not disturbed.

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#905172 --- 10/26/08 07:28 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

THIRD CLAIM FOR RELIEF The Determination was made without proper compliance under 25 CFR Part 151

In its final Decision dated May 20, 2008 and filed May 23, 2008, DOI adopted the aforementioned Alternative I-Preferred Alternative. The ROD did not include an 82 acre parcel located in the Town of Stockbridge in Madison County.

In describing the proposed action, Defendants acknowledged that as a result of its decision to acquire the land in trust, such land would be subject to tribal sovereignty, and immune from New York State and local governmental taxation and regulations. See Record of Decision.

The ROD states that the authority for its actions were Section 5 of the IRA (25 U.S.C. § 465) and 25 C.F.R. Part 151.

The ROD also states that OIN "had been lawfully conducting Class III gaming at Turning Stone under IGRA" and that "the casino is situate within the Oneida Reservation on Indian lands as defined to comply with IGRA".

The ROD further states that no further approvals were required by the State or DOI with respect to the operation of said casino.

The ROD also wrongly asserts that the parcels of land to be acquired in trust were part of OIN's "reservation" and, therefore, not subject to the more stringent two-part review applicable to "off-reservation" lands to be acquired into trust under 25 C.F.R. § 151.11.

Section 18 of the IRA mandates that a vote of the adult members of the Tribes be taken to determine if the IRA is applicable to that tribe. The Oneidas and all the other New York Indians voted against the application of the IRA. A majority of the Oneidas voted again to reject the IRA in 1936. See Michael T. Smith, Memorandum to Director, Office of Indian Services, Bureau of Indian Affairs, dated Feb. 24, 1982 at 8. The ROD also acknowledges that OIN had "opted out" of the applicability of the IRA pursuant to 25 U.S.C. § 478, but then Defendants asserted that under the provisions of 25 U.S.C. § 2202, Section 465 of the IRA nevertheless applied to the OIN.

The ROD further asserted that OIN had 32 acres under its sovereign authority and admitted that no acres were held in trust.

Then Defendants wrongly cited its authority for said actions under Section 5 of the IRA (25 U.S.C. § 465) and 25 C.F.R. part 151 (ROD at 8). Defendant's also cited Article 1, Section 8, Clause 3; the Commerce Clause as the basis for taking New York sovereign land into trust on behalf of the OIN.

The Sherrill decision, which involved OIN, and specifically held that the lands that are the subject of this ROD are not "Indian Country" and are not considered reservation lands for purposes of sovereignty and taxation. In spite of that ruling, the Defendants wrongfully accepted this application as "on reservation" applications in order to avoid the stricter scrutiny under the two-part determination required for "off-reservation" applications.

The failure of the defendants to correct this erroneous action by the BIA is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.

The ROD also fails to provide support for the conclusion that 13,003.89 acres in trust is necessary to satisfy the tribes goal of self-determination and other similar needs of the tribe.

The ROD fails to adequately assess the impact this determination has on the local communities which is require by 25 C.F.R. 151.10 (e) and the NEPA analysis.

The ROD fails to adequately address the concerns of the local communities.

The ROD failed to adequately assess the viable alternatives of the commenters particularly the recommendation that a State Reservation be created which would prevent the unlawful taking of New York sovereign land.

The ROD is unlawful and unconstitutional and would allow the OIN to continue its unfair advantage over other tax paying businesses. The fact that OIN, once its lands are taken in trust, can enjoy unlimited commercial development on trust lands and not be subjected to the same taxes and regulatory burdens as neighboring businesses, creates an unfair advantage for OIN. This is tantamount to subsidized government off-shoring in the backyard of the local citizens which has caused and will continue to destroy the legitimate private tax base.

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#905193 --- 10/26/08 07:47 PM Re: Trust Lawsuit [Re: Rich_Tallcot]
Rich_Tallcot Offline
Senior Member

Registered: 01/19/03
Posts: 5565
Loc: Greeneville, TN
Lawsuit filed against the trust applications
by the Central New York Fair Business Association, Citizens Equal Rights Alliance, New York State Assemblyman David R. Townsend, Oneida County Legislator D. Chad Davis, Oneida County Legislator Michael J. Hennessy, and Melvin L. Phillips.

FOURTH CLAIM FOR RELIEF The determination is arbitrary and capricious, and abuse of discretion, and otherwise not in accordance with law because it fails to adequately assess the environmental impacts in accordance with the National Environmental Policy Act (NEPA)

Immediately after the Sherrill decision, the OIN applied to have 17,000 plus acres taken into trust by the Secretary of the Interior. Through DOI, the Bureau of Indian Affairs ("BIA") began its NEPA review. Some of the plaintiffs in the within action sued the DOI and the BIA calling for a NEPA analysis using the Programmatic Environmental Impact Statement ("PEIS") in order to give the numerous tribal applications fee to trust a more thorough analysis. A PEIS was deemed necessary, because all of the fee to trust claims had significant comprehensive legal questions due to the unique jurisdictional and constitutional problems posed by the attempted application of the IRA in New York. The District Court dismissed the plaintiffs' Complaint indicating in the court's total lack of understanding of the land status in New York after Sherrill. Interestingly, this is the same District Court Judge who's decision was overturned by the Supreme Court in Sherrill.

The DOI, through the BIA commenced with preparation of a Draft Environmental Impact Statement which was completed on November 24, 2006. The BIA conducted public comment sessions throughout the region. The OIN was clearly in control of the sessions and shipped bus loads of employees to the events all clad in bright read t-shirts emblazoned with "My job, my vote" and pre-printed signs supporting the land in trust efforts. Numerous individuals, public officials and citizens groups braved the madding crowd to present their time-limited comments after OIN representatives read a lengthy prepared statement which did not address NEPA issues.

Throughout the process, OIN and its representatives threatened the closure of the Casino as among one of the dire events that would take place if land were not placed in trust. This sentiment is echoed in the Final Environmental Impact Statement ("FEIS").

The DOI analyzed the various alternatives. The Preferred Alternative, Alternative I, called for 13, 086 acres of OIN's 17,000 acre request to be placed in trust, including (a) all of the 3,428 acres in Oneida County where OIN operates the Class III Turning Stone casino, gaming-related activities and hotel, five adjacent golf courses, and a Sav-On gas station and convenience store; (b) approximately 6,475 acres in both Madison and Oneida County, including the location of the OIN's government, health, education and cultural facilities and activities, member housing, hunting lands, numerous non-gaming Nation enterprises, including 12 Sav-On gas stations and convenience stores, a newspaper operation, three marinas and agricultural operations, and ( c) approximately 7,467 acres in both Oneida and Madison Counties which were characterized in the Final Environmental Impact Statement as "generally underdeveloped, active and inactive agricultural lands."

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." When enacting NEPA, Congress:

"recogniz(ed) the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognize(ed) further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, (and) declare(d) that it is the continuing policy of the Federal Government, in cooperation with the State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."

Plaintiffs' interest in the environmental and economic well-being of the State of New York are among the interests to be considered before land is placed into trust. See TOMAC v. Norton, (D.C.Cir. 2006) (holding that a community group had standing to challenge the BIA's decision to take land into trust for the construction of a casino under the Indian Gaming Regulatory Act); see also Citizens Exposing Truth About Casinos v. Norton,(D.D.C. Apr. 23, 2004) (holding that a citizen's group had standing under the Indian Reorganization Act, to challenge a trust acquisition because the Act's implementing regulations provide for consideration of land use conflicts and NEPA requirements).

Under the Departmental Manual of the BIA for the application of NEPA in the fee to trust process, the BIA allows the tribes making the fee to trust applications to act as "lead agency" for the completion of the NEPA 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.

According to the BIA, they represent only the interests of the Indian tribe as defined by the Tribe submitting the fee to trust application.

This position of the BIA on NEPA is based on federal common law district court rulings that held that the state and local governments did not have standing to sue against the fee to trust applications of Indian tribes because they were not within the "zone of interests" to be protected by the IRA and 25 U.S.C. § 465.

The above district court opinions have been effectively overruled by Sherrill and the promulgation of the new regulations implementing 25 U.S.C. § 465.

As prepared, the Final EIS for the fee to trust applications of the OIN does not address any of the factors deemed part of the "justifiable expectations" of the local non-Indian residents or state and local governments identified in the Sherrill decision as disruptive.

The regulatory and cumulative jurisdictional impacts of removing thousands of acres from the sovereign control of state and local governments has not been adequately addressed.

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