F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 4 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
NEIGHBORS FOR RATIONAL DEVELOPMENT,
INC.,
Plaintiff-Appellant,
No. 02-2085
v.
GAIL NORTON, Secretary of the Interior; NEAL A.
McCALEB, Assistant Secretary of Indian Affairs;
ROBERT BARACKER, Area Director, Albuquerque
Area Office, Bureau of Indian Affairs,
Defendants-Appellees.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-99-59-JC/LFG)
John W. Utton of Sheehan, Sheehan & Stelzner, P.A., and J. Brian Smith of J.
Brian Smith Law Firm, LLC, Albuquerque, New Mexico, for Plaintiff-Appellant.
Todd S. Aagaard (Thomas L. Sansonetti, Assistant Attorney General; E. Ann
Peterson, Department of Justice, Washington, D.C.; Mary Anne Kenworthy,
Department of the Interior, Washington, D.C.; Dori Richards, Department of the
Interior, Albuquerque, New Mexico, with him on the brief), Department of
Justice, Washington, D.C., for Defendants-Appellees.
Before HENRY, Circuit Judge, and McKAY and BRORBY, Senior Circuit
Judges.
BRORBY, Circuit Judge.
Neighbors for Rational Development, Inc. (“Neighbors”), appeals a district
court order upholding a decision made by the Secretary of the United States
Department of Interior (“Secretary”) to acquire certain property in trust for the
nineteen Indian Pueblos of New Mexico. After reviewing the record and the
parties’ arguments, we conclude that to the extent Neighbors requested relief
would divest the United States of title to the property the Quiet Title Act
precludes Neighbors’ suit. In addition, we conclude Neighbors’ request for an
injunction halting development on the property until the Secretary has complied
with the National Environmental Policy Act is moot. We therefore dismiss this
appeal and remand the case to district court with instructions to vacate its
decision and dismiss this action.
BACKGROUND
In 1884, the President of the United States “reserved and set apart” federal
property within the City of Albuquerque, New Mexico “for Indian purposes.”
Executive Order, Oct. 3, 1884 (Pueblo Industrial School Reserve), reprinted in 1
Indian Affairs: Laws and Treaties 877-78 (Charles J. Kappler ed., 2d ed. 1904).
The land was used for an Indian school. Throughout the next several decades,
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other parcels of land were added to the Indian School property. The school,
however, closed in 1981.
While the property was lying idle, the United States Department of the
Interior deeded it to nineteen Pueblos of New Mexico 1 (“the Pueblos”) as tenants
in common. The deed required the Pueblos use the land for “public purposes.” In
the event the Pueblos failed to satisfy this provision and the failure lasted for at
least a year, the Secretary had authority declare a forfeiture. Notwithstanding this
provision, the Pueblos continued to let the property lie idle. The Pueblos instead
explored options that would allow the United States to hold the property in trust
for them.
Finally, the Pueblos requested the Secretary take title to the property and
hold it in trust for them. After reviewing the administrative record, the Secretary
took the property in trust for the Pueblos.
With the property in trust, the Pueblos made preparations to develop the
1
These are the Pueblos of Acoma, Cochiti, Isleta, Jemez, Laguna, Nambe,
Picuris, Pojoaque, San Felipe, San Ildefonso, San Juan, Sandia, Santa Ana, Santa
Clara, Santo Domingo, Taos, Tesuque, Zia, and Zuni.
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land into commercial office space. With authorization from the Department of
Interior, the Pueblos entered a lease agreement with the Indian Pueblos
Development Corporation. See Neighbors for Rational Dev., Inc. v. Albuquerque
Area Dir., Bureau of Indian Affairs, 33 I.B.I.A. 36, 36-37 (1998). Neighbors, an
organization of landowners, business owners, and residents of land near the
Indian School property, appealed the lease approval raising “a veritable laundry
list of alleged violations of [the National Environmental Policy Act] and its
implementing regulations.” Id. at 36 n.2, 42. The Interior Board of Indian
Appeals found Neighbors “failed to show error in [the Bureau of Indian Affair’s]
approval of the lease between the 19 Pueblos and the [Indian Pueblos
Development Corporation].” Id. at 49.
DISTRICT COURT PROCEEDING
After losing its appeal concerning the lease of the Indian School property,
Neighbors filed a complaint in the United States District Court for the District of
New Mexico, arguing the Secretary improperly “plac[ed] the property in trust
without complying with the National Environmental Policy Act.” Specifically,
Neighbors argued the Secretary should have conducted an environmental
assessment under the National Environmental Policy Act because “at the time the
property was placed in trust” the Secretary “contemplated a change in land use.”
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The district court initially dismissed the complaint for lack of standing.
Unsatisfied with this result, Neighbors asked the district court to reconsider
its order, or alternatively, for leave to amend its complaint. The district court
reaffirmed its ruling, but granted Neighbors permission to amend its complaint to
allege the Secretary had violated regulations specifically governing the
acquisition of land in trust for tribes. See 25 C.F.R. § 151.10 (1993). Neighbors
then amended its complaint alleging the Secretary
unlawfully did not consider and evaluate: (1) the need of the tribe
for the trust conversion; (2) the purpose for which the land would be
used; (3) the impact on the state and its subdivisions on removing the
land from the tax rolls; (4) jurisdictional problems and potential
conflicts of land use that might arise; and (5) whether [the Bureau of
Indian Affairs] could manage the additional responsibilities; all as
required by 25 C.F.R. Part 151 and [Bureau of Indian Affairs]
Guidelines.
Neighbors’ amended complaint also alleged the Secretary “failed to comply with
the National Environmental Policy Act and its implementing regulations and
guidelines ... by failing to perform an Environmental Assessment or
Environmental Impact Statement prior to accepting the ... property in trust for the
Pueblos.” The Secretary asked the district court to strike this portion of the
complaint. Noting its prior order holding Neighbors did not have standing to
bring environmental claims, the district court granted the motion and ordered the
National Environmental Policy Act claim stricken from the complaint.
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The district court then turned to the merits of Neighbors’ contention the
Secretary did not follow the trust acquisition regulations. After briefing by the
parties, the district court concluded the Secretary’s decision to accept the property
in trust was arbitrary and capricious because it failed to adequately consider
factors listed in the trust acquisition regulations. The district court therefore
remanded the case to the Secretary.
The ongoing district court saga did not, however, end there. This time it
was the Secretary who was displeased with the decision. The Secretary asked the
district court to alter or amend the decision, arguing, among other things, it
should be allowed to supplement the record. Although the court refused to
address a new argument the Secretary included in the motion, the district court
did amend its previous order allowing the Secretary “to supplement the
administrative record with additional affidavits or testimony as may be necessary
to explain the agency’s decision.”
Seizing the opportunity, the Secretary submitted declarations from two
Bureau of Indian Affairs employees who had reviewed various aspects of the
proposed land acquisition and prepared recommendations and summaries for the
Secretary. At this point, the district court decided sua sponte to reconsider its
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finding that the Secretary’s decision to accept the property in trust was arbitrary
and capricious and ordered a hearing. Ultimately, the district court vacated, in
part, its earlier order and reinstated the Secretary’s decision to accept the
property. The court determined the Secretary had not acted arbitrarily and
capriciously in relying on contemporaneous explanations of a Bureau of Indian
Affairs area director.
DISCUSSION
Neighbors then filed this appeal. Neighbors argues “[t]he Secretary’s
decision to acquire the [Indian School] property in trust for the Pueblos was
arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with
law” because the Secretary (1) failed to comply with the National Environmental
Policy Act, and (2) failed to consider “the regulatory factors for trust
acquisitions” in 25 C.F.R. § 151.10.
The Secretary argues “Neighbors’ claim to set aside the Department of the
Interior’s trust acquisition of the Albuquerque Indian School property challenges
the United States’ title to the property and is therefore precluded by the Quiet
Title Act.” The Secretary further maintains Neighbors lacks standing to bring its
claims, and, in any event, did not violate the National Environmental Policy Act
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or the trust acquisition regulations. Finally, the Secretary urges us to conclude
Neighbors’ National Environmental Policy Act claim is moot because, since the
trust acquisition, the Secretary completed an Environmental Assessment for the
lease on the Indian School property.
Because the Secretary’s Quiet Title Act argument involves subject matter
jurisdiction, we begin there. We review questions involving subject matter
jurisdiction de novo. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.
1999), cert. denied, 528 U.S. 1106 (2000). Neighbors asserts the district court
had jurisdiction under 28 U.S.C. §§ 1331, 2201, and 2202. The general federal
question statute, 28 U.S.C. § 1331, grants the district courts “original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United
States,” but “does not waive the government’s sovereign immunity.” Eagle-
Picher Indus., Inc. v. United States, 901 F.2d 1530, 1532 (10th Cir. 1990).
Consequently, district court jurisdiction cannot be based on § 1331 unless some
other statute waives sovereign immunity. See New Mexico v. Regan, 745 F.2d
1318, 1321 (10th Cir. 1984). Sections 2201 and 2202 are unhelpful in this regard.
See Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002); McGrath v.
Weinberger, 541 F.2d 249, 252 n.4 (10th Cir. 1976).
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Neighbors suggests the Administrative Procedures Act provides the
necessary waiver of immunity allowing the district court to review this case. The
Administrative Procedures Act’s waiver of sovereign immunity states: “A person
suffering legal wrong because of agency action ... is entitled to judicial review
thereof. An action ... seeking relief other than money damages ... shall not be
dismissed ... on the ground that it is against the United States.” 5 U.S.C. § 702.
The waiver is limited. It does not “confer[] authority to grant relief if any other
statute that grants consent to suit expressly or impliedly forbids the relief which is
sought.” Id.
The Secretary argues the Quiet Title Act forbids the relief Neighbors is
seeking. Like the Administrative Procedures Act, the Quiet Title Act contains a
limited waiver of sovereign immunity. It allows the United States to “be named
as a party defendant in a civil action ... to adjudicate a disputed title to real
property in which the United States claims an interest, other than a security
interest in water rights.” 28 U.S.C. § 2409a(a). The Quiet Title Act, however,
does not “apply to trust or restricted Indian lands.” Id. “Thus, when the United
States claims an interest in real property based on that property’s status as trust or
restricted Indian lands, the Quiet Title Act does not waive the Government’s
immunity.” United States v. Mottaz, 476 U.S. 834, 843 (1986).
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Neighbors protests the Quiet Title Act is inapplicable in this case because it
“is not an adverse claimant seeking to quiet title in the [Indian School] property”
and draws our attention to the fact it does not claim “any ownership interest” in
the property. The Secretary counters Neighbors’ suit is the equivalent of a quiet
title action because Neighbors seeks a “declaratory judgment that the trust
acquisition is null and void.”
We conclude Neighbors’ claim falls within the scope of the Quiet Title
Act’s limitations on suits. It is well settled law the Quiet Title Act’s prohibition
of suits challenging the United States’ title in Indian trust land may prevent suit
even when a plaintiff does not characterize its action as a quiet title action. See
Mottaz, 476 U.S. at 841-42. See also Block v. North Dakota ex rel. Bd. of Univ.
& Sch. Lands, 461 U.S. 273, 284-85 (1983) (holding the Quiet Title Act’s
restrictions on suits cannot be circumvented with artful pleading). Thus,
Neighbors’ characterization of this suit as a challenge to the Secretary’s actions
under the Administrative Procedures Act is immaterial. Instead, we must focus
on the relief Neighbors requests. See Mottaz, 476 U.S. at 842 (opining suit was
properly characterized as a quiet title action based on the relief plaintiff sought).
In this case, Neighbors asks the court to “enter declaratory judgment that
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the trust acquisition is null and void.” Neighbors also seeks to “permanently
enjoin [the Secretary] from converting the [Indian School] property to trust status
without fully complying will all federal laws, regulations, and Guidelines,
including the National Environmental Policy Act.” We think these requests fall
within the scope of suits the Indian trust land exemption in the Quiet Title Act
sought to prevent.
In advocating Congress adopt the Indian trust land exemption, the Solicitor
for the Department of Interior explained:
The Federal Government’s trust responsibility for Indian lands is the
result of solemn obligations entered into by the United States
Government. The Federal Government has over the years made
specific commitments to the Indian people through written treaties
and through informal and formal agreements. The Indians, for their
part, have often surrendered claims to vast tracts of land. President
Nixon has pledged his administration against abridging the historic
relationship between the Federal Government and the Indians without
the consent of the Indians.
House Report No. 92-1559, at 13 (1972) (letter from Mitchell Melich, Solicitor
for the Dep’t of the Interior) reprinted in 1972 U.S.C.C.A.N. 4547, 4556-57. See
Permitting Suits Against United States to Adjudicate Disputed Land Titles, S.
Rep. No. 92-575, at 5 (1971); Dispute of Titles on Public Lands: Hearing on S.
216, S. 579, and S. 721 Before the Senate Comm. on Interior & Insular Affairs,
92nd Cong. 2, 19 (1971) (letter and statement of Mitchell Melich, Solicitor for the
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Dep’t of the Interior). 2 Thus, it appears clear Congress’ intent in excluding
Indian trust lands from the Quiet Title Act’s waiver of sovereign immunity was to
prevent adverse claimants from interfering with the United States’ obligations to
the Indians. Although Neighbors is not an adverse claimant in the sense it is not
seeking to gain title to the Indian School property, we think the Indian trust land
exemption applies with equal force here. If Congress was unwilling to allow a
plaintiff claiming title to land to challenge the United States’ title to trust land,
we think it highly unlikely Congress intended to allow a plaintiff with no claimed
property rights to challenge the United States’ title to trust land. Construing the
Quiet Title Act’s waiver of sovereign immunity narrowly – as we must – we
conclude the Act impliedly precludes the relief Neighbors seeks. See Hull ex rel.
Hull v. United States, 971 F.2d 1499, 1509 (10th Cir. 1992) (holding waivers of
sovereign immunity should be construed narrowly).
Our holding concerning the Quiet Title Act is consistent with the Eleventh
Circuit’s holding in a similar case. See Florida v. United States Dep’t of the
2
See also Mottaz, 476 U.S. at 843 n.6 (recognizing this legislative
history); North Dakota, 461 U.S. at 1817 (noting “[t]he Executive branch felt that
a waiver of immunity [for claim over Indian trust land] would not be consistent
with ‘specific commitments’ it had made to the Indians through treaties and other
agreements”).
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Interior, 768 F.2d 1248 (11th Cir. 1985). In the Eleventh Circuit’s case, the State
of Florida, the Florida Department of Revenue, and the City of Tampa brought
suit challenging the Secretary of the Interior’s decision to acquire land in trust for
the Seminole Indian Tribe. See id. at 1250. These plaintiffs, seeking review
based on the waiver of sovereign immunity in the Administrative Procedures Act,
claimed the Secretary had not followed the applicable trust acquisition regulations
and sought to “divest the United States of its title to the land.” Id. at 1250-53.
The Eleventh Circuit, however, held the Quiet Title Act impliedly forbids the
relief the plaintiffs were seeking. Id. at 1254. Like Neighbors in the case before
us, the plaintiffs in the Eleventh Circuit case protested theirs was “not a suit to
quiet title, because they [did] not seek to have title to the land quieted in them,
nor [did] they seek recognition of any property interest in the land.” Id. In
rejecting this argument, the Eleventh Circuit explained that “[b]y forbidding
actions to quiet title when the land in question is reserved or trust Indian land,
Congress sought to prohibit third parties from interfering with the responsibility
of the United States to hold lands in trust for Indian tribes.” Id. Consequently,
the Eleventh Circuit concluded it did not matter that the plaintiffs were not
seeking title to the land because their requested relief would still “interfere[] with
the trust relationship.” Id. “Moreover, Congress chose to preclude an adverse
claimant from divesting the United States’ title to Indian lands held in trust. It
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would be anomalous to allow others, whose interest might be less than that of an
adverse claimant, to divest the sovereign of title to Indian trust lands.” Id. at
1254-55. We think the Eleventh Circuit’s reasoning is compelling.
Neighbors argues we are nevertheless precluded from adopting the Eleventh
Circuit’s reasoning in Florida because our opinion in McAlpine v. United States,
112 F.3d 1429 (10th Cir. 1997), “expressly rejected Florida in holding that trust
acquisition decisions are reviewable under [the Administrative Procedures Act].”
Neighbors’ argument misinterprets our holding in McAlpine. In that case, Mr.
McAlpine, an enrolled member of the Osage Tribe, brought suit against the
Secretary of the Interior for denying his application “to take his land into trust
status.” Id. at 1430. He alleged the Secretary had not followed the trust
acquisition regulations in rejecting his application. See id. at 1431. We held Mr.
McAlpine could challenge the Secretary’s decision under the waiver of sovereign
immunity in the Administrative Procedures Act. See id. at 1435. In reaching this
conclusion, we noted “neither party direct[ed] us to, nor [did] we [find], any other
statute precluding review of the Secretary’s decision regarding trust land
acquisitions.” Id. at 1432. The Quiet Title Act was not in play in McAlpine
because the Secretary had not taken the title in trust. Further, Mr. McAlpine was
not seeking to divest the United States of its title in any Indian trust land. We,
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therefore, conclude McAlpine’s holding does not answer the question before us in
this case. 3
Neighbors’ next attempt to avoid the Indian trust exemption in the Quiet
Title Act draws our attention to what it characterizes as “the Secretary[’s]
conce[ssion] in 1996 in the preamble to [Department of the Interior’s] amended
regulations that trust acquisition[s] are reviewable under [the Administrative
Procedures Act].” Neighbors’ argument mischaracterizes the new regulations.
The summary of the new regulations states:
Following consideration of the factors in the current
3
In reaching its conclusion, the McAlpine decision did consider and reject
part of the Eleventh Circuit’s opinion in Florida. The portion of the Florida
decision McAlpine rejected did not, however, involve the Quiet Title Act. After
concluding the Quiet Title Act prevented the plaintiff’s suit, the Florida court
stated its “conclusion that Congress did not intend to permit third parties to
disrupt the trust relationship of the United States to land held for the Indians
[was] bolstered” by the fact the Administrative Procedures Act could not operate
as a waiver of sovereign immunity to the extent the agency action was “committed
to agency discretion by law.” Florida, 768 F.2d at 1255. The Florida court then
looked at the trust acquisition regulations and determined they were drawn in such
a broad fashion that trust acquisitions were really left to the discretion of the
Secretary. See id. at 1255-57. It is this last conclusion that our McAlpine
decision rejected. See McAlpine, 112 F.3d at 1434. McAlpine did not comment
as to the validity of Eleventh Circuit’s reasoning concerning the Quiet Title Act.
See id. See also United States v. Roberts, 185 F.3d 1125, 1134 n.7 (10th Cir.
1999) (noting McAlpine “expressly rejected” Florida’s holding that “the decision
to acquire land [in trust for Indians] is one within the Secretary’s discretion”),
cert. denied, 529 U.S. 1108 (2000).
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regulations and completion of the title examination, the
Department, through Federal Register notice, or other
notice to affected members of the public, will announce
any final administrative determination to take land in
trust. The Secretary will not acquire title to the land in
trust until at least 30 days after publication of the
announcement. This procedure permits judicial review
before transfer of title to the United States.
Land Acquisitions, 61 Fed. Reg. 18082, at 18082 (April 24, 1996) (emphasis
added). The preamble then states “[t]he Quiet Title Act ... precludes judicial
review after the United States acquires title.” Id. (emphasis added).
Consequently, rather than helping Neighbors’ argument, the new regulations
actually support the conclusion judicial review is only available under the
Administrative Procedures Act and trust acquisition regulations if the United
States has not yet acquired title to the property. Since, in this case, the United
States has already taken title to the Indian School property, judicial review is not
available.
Neighbors cites several other cases for the proposition the Quiet Title Act
does not bar judicial review of the Secretary’s decision to accept the property in
trust status. See South Dakota v. United States Dep’t of the Interior, 69 F.3d 878,
881 n.1 (8th Cir. 1995) (stating in dicta: “We doubt whether the Quiet Title Act
precludes [Administrative Procedure Act] review of agency action by which the
United States acquires title”), judgment vacated and case remanded by 519 U.S.
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919 (1996); Shivwits Band of Paiute Indians v. Utah, 185 F. Supp. 2d 1245, 1250
(D. Utah 2002) (holding the Quiet Title Act prevented the court from reviewing
the government’s right to hold title to property in trust for Indian, but still
requiring the Bureau of Indian Affairs to comply with the National Environmental
Policy Act); Kansas ex rel. Graves v. United States, 86 F. Supp. 2d 1094, 1096
(D. Kan. 2000) (holding the Quiet Title Act did not apply to a Department of
Interior determination that a parcel of land was Indian land within the meaning of
the Indian Gaming Regulation Act); Pueblo of Taos v. Andrus, 475 F. Supp. 359,
364-65 (D. D.C. 1979) (holding Quiet Title Act did not apply to suit to settle the
boundary between Indian trust land and land administered by the United States
Forest Service); City of Sault Ste. Marie v. Andrus, 458 F. Supp. 465, 471-72 (D.
D.C. 1978). None of these cases is persuasive. Although the Eighth Circuit’s
South Dakota opinion “doubt[s]” the applicability of the Quiet Title Act, it
specifically states the court did not decide the issue. See South Dakota, 69 F.3d
at 881 n.1. Kansas ex rel. Graves and Pueblo of Taos are not factually analogous
to the case before us because decisions for the plaintiff would not have divested
the United States of title property. See Kansas ex rel. Graves, 86 F. Supp. 2d at
1095-96; Pueblo of Taos, 475 F. Supp. at 365 (noting the United States held title
to both pieces of property involved in the border dispute). Likewise, the decision
in Shivwits Band of Paiute Indians refused to allow the plaintiff to divest the
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United States of title in Indian trust land. See Shivwits Band of Paiute Indians,
185 F. Supp. 2d at 1250. This leaves only City of Sault Ste. Marie supporting
Neighbor’s contention. That case concluded the Quiet Title Act only prevented a
suit involving Indian trust land to the extent the suit met the Act’s requirements
for an otherwise valid complaint. City of Sault Ste. Marie, 458 F. Supp. at 471.
See 28 U.S.C. § 2409a(d) (requiring “[t]he complaint ... set forth with
particularity the nature of the right, title, or interest which the plaintiff claims in
the real property, the circumstances under which it was acquired, and the right,
title, or interest claimed by the United States”). The validity of this reasoning is
undercut by the Supreme Court’s subsequent opinions in Mottaz and North
Dakota. In determining whether the Quiet Title Act applied, both Mottaz and
North Dakota made it clear plaintiffs cannot circumvent the intent of the Quiet
Title Act’s limitations with artful pleading. See Mottaz, 476 U.S. at 841-42;
North Dakota, 461 U.S. at 284-85. Following the Supreme Court’s lead, we focus
our attention on how the plaintiff’s suit could impact the United States’ title to
Indian trust land rather than on the type of property interest the plaintiff asserts.
To the extent City of Sault Ste. Marie or any other case suggests a different path,
we disagree.
In sum, we conclude the Administrative Procedure Act cannot waive the
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United States’ sovereign immunity because the Quiet Title Act precludes
Neighbors’ suit to the extent it seek to nullify the trust acquisition.
Neighbors does seek one other type of relief. It requests the court
“permanently enjoin [the Secretary] from proceeding with or authorizing
development of the [Indian School] property until such time that [the Secretary]
compl[ies] with all federal laws, regulations, and Guidelines, including the
National Environmental Policy Act.” In part, this request for relief is similar to
Neighbors’ request to invalidate the trust acquisition and prevent the Secretary
from reacquiring the Indian School property because it seeks to have Secretary re-
examine the decision to take the property into trust. We think any claim seeking
to re-examine issues unique to the trust acquisition is moot because the court is
without authority to provide any relief. “When events occur that prevent the ...
court from granting any effective relief, an issue is moot.” Casad v. United States
Dep’t of Health & Human Servcs., 301 F.3d 1247, 1254 (10th Cir. 2002).
Assuming for the sake of argument the district court considered the merits of
Neighbors various claims and concluded the Secretary had not complied with the
National Environmental Policy Act or the trust acquisition regulations, the district
court could theoretically order the Secretary to now consider the appropriate
factors. The district court, however, has no power to divest the United States of
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the property and Neighbors does not allege the Secretary has power to reconsider
its decision. Requiring the Secretary to re-examine its trust acquisition decision
would not provide Neighbors with any meaningful relief and would be a waste of
agency resources – not to mention the judicial resources that would be consumed
in evaluating the sufficiency of the Secretary’s initial considerations. Since the
Secretary has acquired title to the property, the issue is moot.
In part, Neighbors’ request for an injunction preventing development of the
property until the Secretary complies with the National Environmental Policy Act
can be read not as a request to have the Secretary rehash the trust acquisition
decision, but rather as a request to have the Secretary consider the environmental
impact development itself will have on the Indian School property. We do not
think this request for relief is precluded by the Quiet Title Act. Furthermore,
considering various development proposals after the trust acquisition would not
be simply an exercise in futility. We, nevertheless, conclude this request for
relief is moot because the Secretary complied with the National Environmental
Policy Act when approving a lease of the Indian School property. We do not
think it would be wise to require the Secretary to plow the same ground twice.
Neighbors argues the Environmental Assessment completed for the lease is not
sufficient because it did not “consider[] the issues and alternatives applicable to
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the trust acquisition.” As we have already explained, we think it unproductive to
re-examine a trust decision that cannot be changed. Neighbors never argues the
completed environmental assessment does not adequately consider the
environmental impact and alternatives to development of the property. Thus, we
conclude Neighbors’ request for an injunction barring development of the
property until a National Environmental Policy Act analysis is complete is moot.
Because we conclude the United States has not waived its sovereign
immunity for the portions of the suit challenging the trust acquisition and the
other claims Neighbors raises are moot, we need not consider whether Neighbors
has standing to bring its claims.
CONCLUSION
For the reasons discussed above, we DISMISS this appeal and REMAND
the case to the district court with instructions to vacate its decision and dismiss
this action.
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Neighbors for Rational Development, Inc. v. Norton
Court: Court of Appeals for the Tenth Circuit
Date filed: 2004-08-04
Citations: 379 F.3d 956
Copy Citations