FOR THE DISTRICT OF COLUMBIA Fort Sill ApacheTribe ...UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Fort Sill ApacheTribe, Plaintiff, vs. National Indian Gaming Commission,

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

Fort Sill Apache Tribe,

Plaintiff,

vs.

National Indian Gaming Commission, et al.,

Defendants.

)))))))))))))

Civil No. 1:14-cv-958-RMC

REPLY BRIEF IN SUPPORTOF PLAINTIFF FORT SILL APACHE TRIBE’S MOTION TO COMPLETE AND SUPPLEMENT THE ADMINISTRATIVE RECORD WITH RESPECT TO THE

JANUARY 2017 DECISION OF THE NATIONAL INDIAN GAMING COMMISSION

Kenneth J. PfaehlerDentons US LLP

1900 K Street, N.W.Washington, D.C. 20006

Telephone: (202) 408-6468Facsimile: (202) 496-7756

[email protected]

Attorneys for Plaintiff Fort Sill Apache Tribe

August 6, 2018

Case 1:14-cv-00958-RMC Document 104 Filed 08/06/18 Page 1 of 33

mailto:[email protected]

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Table of Contents

Page

I. Motion to Complete the Record with the Indian Lands Opinion ........................................1

A. The Purpose of Interior’s Letter “Was to Present New and Official Information From Interior to the NIGC Upon Which MightReconsider the 2015 Decision” ...............................................................................1

B. The 2017 Decision Is Effectively Unreviewable if the IndianLands Opinion Is Excluded From the Administrative Record. ...............................3

C. The Tribe Will Be Harmed If the Indian Lands Opinion Is NotIncluded in the Record.............................................................................................5

D. Defendants Will Not Be Harmed from Disclosure of the IndianLands Opinion .........................................................................................................8

E. Defendants Seek to Cherry-Pick the Indian Lands OpinionsThat Will Be Included in the Administrative Record............................................10

F. The Declarations Submitted By Defendants Should Be GivenNo Weight .............................................................................................................12

1. Tahsuda Declarations ................................................................................13

2. Chaudhuri Declarations .............................................................................15

G. The NIGC May Not Exclude Documents Adverse to its Decision .......................15

H. The Indian Lands Opinion Was Not Part of a “DeliberativeProcess with the NIGC” ........................................................................................16

I. The Indian Lands Opinion May Shed Light on Issues With the Process Itself..........................................................................................................17

J. The NIGC and DOI Cannot Promulgate “Secret Law”.........................................18

K. The Indian Lands Opinion Is Not Protected from DisclosureBy the Attorney-Client Privilege or the Work Product Doctrine ..........................19

L. A “Settlement Privilege” Does Not Protect Any Part of theAdministrative Record From Disclosure...............................................................20

II. Motion to Supplement the Record.....................................................................................22

A. The Administrative Record Should Be Supplemented With the 39 Documents Considered by the DOI in Issuing the 2016 Indian Lands Opinion ......................22

B. The Administrative Record Should Be Supplemented With the Email Communications On December 9, 2016 and January 11 and 12, 2017 ................24


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III. In the Alternative, the Court Should Consider the Materials Consideredby the DOI In Issuing the 2016 Indian Lands Opinion as Extra-RecordEvidence ............................................................................................................................24

Conclusion.....................................................................................................................................25

CERTIFICATE OF SERVICE......................................................................................................27


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TABLE OF AUTHORITIES

Page(s)

Cases

Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134 (D.D.C. 2002)....................................5, 23

Amador County v. S.M.R. Jewell, 170 F. Supp. 3d 135 (D.D.C. 2016) ..........................................5

Am. Petroleum Tankers Parent, LLC v. United States,952 F. Supp. 2d 252 (D.D.C. 2013).........................................................................................17

Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior,143 F. Supp. 2d 7 (D.D.C. 2001).................................................................................16, 22, 23

Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193 (10th Cir. 2006) ...............................................................................................12

Banner Health v. Sebelius,945 F. Supp. 2d 1 (D.D.C. 2013), decision vacated in part on reconsideration, No. CV 10-01638 (CKK), 2013 WL 11241368 (D.D.C. July 30, 2013) ..................................................................11, 16, 22, 23

Blue Ocean Institute v. Gutierrez, 503 F.Supp.2d 366 (D.D.C. 2007)....................................16, 22

Burbar v. Inc. Vill. of Garden City,303 F.R.D. 9 (E.D.N.Y. 2014) ................................................8

Calloway v. Harvey, 590 F.Supp.2d 29 (D.D.C. 2008).................................................................25

Citizens Exposing Truth About Casinos v. Kempthorne,492 D.3d 460, 462 (D.C. Cir. 2007) ..........................................................................................5

City of Dania Beach v. Federal Aviation Admin., 628 F.3d 581 (D.C. Cir. 2010) ..................................... 16

City of Roseville v. Norton, 348 F.3d 1020 (D.C. Cir. 2003) ..........................................................5

Common Sense Salmon Recovery v. Evans,217 F.Supp.2d 17 (D.D.C.2002)...............................23

Fort Sill Apache Tribe v. Nat’l Indian Gaming Comm’n, 234 F. Supp. 3d 209 (D.D.C. 2017)........................................................................................21

Hall v. Central Intelligence Agency, 538 F. Supp. 2d 64 (D.D.C. 2008)......................................12

Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160 (D.D.C. 2017)......................................25

In re Subpoena Issued to Commodity Futures Trading Comm’n, 370 F.Supp.2d 201 (D.D.C. 2005) ..........................................................................................21

James Madison Ltd. v. Ludwig, 82 F.3d 1085 (D.C.Cir.1996) .....................................................23


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Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141 (D.C. Cir. 2006) .............................17

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990).................................................................12-13

Maritel, Inc. v. Collins, 422 F.Supp.2d 188 (D.D.C.2006) ...............................................16, 22, 23

NAACP Legal Defense Fund v. United States Dept. of Justice,612 F. Supp. 1143 (D.D.C.1985).............................................................................................22

Nat’l Council of La Raza v. DOJ, 339 F. Supp. 2d 572 (S.D.N.Y. 2004).......................................4

Nat’l Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ...............................4

National Mining Ass’n v. Jackson, 856 F.Supp.2d 150,156 (D.D.C. 2012) .................................25

Occidental Eng’g Co. v. Immigration and Naturalization Service,753 F.2d 766 (9th Cir.1985) ......................................................................................................3

Sears, Roebuck & Co. v. U.S. Postal Service,118 F. Supp. 3d. 244 (D.D.C. 2015)............................................................................16, 23, 24

Smith v. United States, 583 A.2d 975 (D.C.1990).........................................................................12

Sterling Drug, Inc. v. Fed. Trade Comm’n, 450 F.2d 698 (D.C. Cir. 1971) .................................18

Styrene Info. & Research Ctr., Inc. v. Sebelius, 851 F. Supp. 2d 57 (D.D.C. 2012) ..........................................................................................16

Tigue v. Dep’t of Justice, 312 F.3d 70 (2d Cir. 2002) ....................................................................4

U.S. Dep’t of the Treasury v. Pension Benefit Guar. Corp.,222 F. Supp. 3d 38 (D.D.C. 2016)...........................................................................................20

Wisdom v. U.S. Tr. Program, 232 F. Supp. 3d 97, 120 (D.D.C. 2017)....................................18-19

Statutes

Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.......................................................passim

25 U.S.C. § 2719(b)(1)(B)(ii).................................................................................................passim

Interior & Related Agencies Appropriations Act, Pub. L. No. 107-63, § 134, 115 Stat. 414, 442-43 (2001) ............................................................................................................5

Regulations and Rules

5 C.F.R. Part 83 ...............................................................................................................................6

25 C.F.R. § 292..............................................................................................................................14


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25 C.F.R. § 292.26(b) ....................................................................................................................14

25 C.F.R. § 581.6(f).........................................................................................................................4

Federal Rule of Evidence 408 .................................................................................................20, 21

Federal Rule of Evidence 602 .......................................................................................................12

Other Authority

“Secretary Zinke Names John Tahsuda III the Principal Deputy Assistant Secretary for Indian Affairs,” Sept. 13, 2017, https://www.doi.gov/pressreleases/secretary-zinke-names-john-tahsuda-iii-principal-deputy-assistant-secretary-indian.............................................................................13

2 Weinstein’s Federal Evidence § 408.07 (2005) .........................................................................21


Plaintiff Fort Sill Apache Tribe (the “Tribe”), through its undersigned counsel, hereby

replies in further support of its motion to complete and supplement the administrative record

relating to the January 12, 2017 decision of the National Indian Gaming Commission (the

“NIGC”) signed by each Commissioner (the “2017 Decision”), and states as follows:

I. Motion to Complete the Record with the Indian Lands Opinion

In their opposition the defendants seek, again, to recast the two core documents at issue

— the Indian Lands opinion letter issued by the Solicitor’s Office of the Department of the

Interior (“DOI”) to the NIGC on December 9, 2016 (the “Indian Lands Opinion”), and the 2017

Decision as internal, privileged documents, never meant to see the light of day. The defendant’s

contentions are contrary to multiple orders of the Court and the principles governing the

preparation of administrative records. We have been down this road before, in many variations,

and multiple orders in this case preclude the spin that the defendants again, post-facto, are

seeking to put on the documents.

A. The Purpose of Interior’s Letter “Was to Present New and Official Information from Interior to NIGC Upon Which NIGC Might Reconsider the 2015 Decision”

The defendants’ brief in opposition and supporting declarations attempt to portray the

December 9, 2016 Indian Lands Opinion as a pre-decisional piece of advice from counsel. The

letter is anything but. As reflected in the Court’s October 21, 2016 Order, the letter was required

to provide “Interior’s position regarding the Fort Sill Apache Tribe’s gaming eligibility under the

Indian Gaming Regulatory Act.” Dkt. 60. “Interior’s position:” not an attorney’s opinion, not

deliberative work product, not (as Chairman Chaudhuri would have it) “communications

between the NIGC Office of General Counsel and the Department of the Interior Solicitor’s

Office.” The letter was to set forth Interior’s position on whether the Tribe was “acknowledged


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by the Secretary [of the Interior] under the Federal acknowledgement process.” 25 U.S.C. §

2719(b)(1)(B)(ii).1 This is a decision delegated to Interior by statute, inter-agency memoranda,

and common sense (who else should be deciding whether the Interior Secretary made an

acknowledgment?).

The Tribe did not have the benefit of such an Interior analysis before the NIGC issued a

Notice of Violation to the Tribe back in 2009, and before the NIGC’s May, 2015 Decision and

Order denying the Tribe’s administrative appeal (the “2015 Decision”). Those decisions were

based only on an incomplete and incorrect opinion from NIGC staff counsel, issued in 2008

before Akela Flats was declared to be the Tribe’s reservation. Therefore the agreed resolution

process, embodied in the stipulated order presented by the parties to the Court, was constructed

for Interior to provide the complete and up-to-date analysis that previously had never been

performed.2 This was the purpose of the process, as the Court has held:

In furtherance of this idea, the parties submitted a proposed order to the Court which, as amended from time to time in non-substantive ways, set out a timetable. The entire purpose of the exercise was to present new and official information from Interior to NIGC upon which NIGC might reconsider the 2015 Decision.

Memorandum Opinion, May 25, 2018, Dkt. 98, at 17.

Stringing together pieces of regulations and conclusory declarations, the defendants

contend that the NIGC was not required to obtain the analysis from Interior, and Interior was not

required to perform it. The Tribe strongly disagrees, as explained below. But whatever the

merits of the defendants’ contention, it does not matter for purposes of this motion whether

Interior was generally required to provide the analysis, because in this case the defendants agreed

1 Despite proffering five declarations, the defendants offer no alternative reading of this language in the October 30, 2016 Order, or any other explanation of their intentions or the Court’s orders to the same effect, entered at the joint request of the parties.

2 Second Amended Complaint, June 20, 2017, Dkt. 80, at ¶ 111 (cited herein as “Sec. Am. Compl.”).


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to Interior’s providing that analysis in a stipulated order and have in fact already presented it to

the Court.

The parties spent the better part of a year negotiating over how to resolve this case. The result of those negotiations was the adoption of a process that allowed Interior to state its views to NIGC and NIGC to consider that opinion and issue a “decision and order.” By mutual agreement and by Court order, that is what happened and final agency action resulted.

Id. at 17-18.

B. The 2017 Decision Is Effectively Unreviewable if the Indian Lands Opinion Is Excluded From the Administrative Record.

The Indian Lands Opinion had to be expressly considered by the Commissioners, and

such consideration was the sole subject of their 2017 Decision. Without the Indian Lands

Opinion in the record, the 2017 Decision is incapable of judicial review. Without the opinion the

Tribe cannot challenge the NIGC’s reasoning in the 2017 Decision or its failure to address the

analysis in the Indian Lands Opinion (which the NIGC appears to have rejected), because (1) the

NIGC deliberately does not explain its reasoning, and (2) the Commission is concealing the

Interior analysis.

After all, the substance of the 2017 Decision is the statement that “[a]fter careful

consideration of the December 9th letter, we have determined there are not grounds, for

settlement purposes, for reconsideration of the Commissioner’s May 5, 2015 Final Decision and

Order.” Dkt. 67, Ex. 1. Without the Indian Lands Opinion, the administrative record is

inadequate because it does not allow the Court to determine whether or not as a matter of law the

evidence in the administrative record permitted the NIGC “to make the decision it did” in the

2017 Decision. Cf. Occidental Eng’g Co. v. Immigration &Naturalization Serv., 753 F.2d 766,

769–70 (9th Cir.1985).


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The NIGC, it bears noting, is required by federal regulation to provide a statement of the

reasons for its decision when it reconsiders a prior decision. 25 C.F.R. § 581.6(f). Without such

a statement of reasons, only the Indian Lands Opinion itself can make the 2017 Decision

comprehensible. Without the Indian Lands Opinion or a reasoned decision addressing its

analysis, the Tribe is caught in an administrative Catch-22. It cannot challenge the NIGC’s

Decision, or even understand it; nor does it have the Indian Lands Opinion it bargained for. By

concealing Interior’s position on the Tribe’s acknowledgment, the NIGC effectively ensures that

the 2017 Decision is unreviewable. The October 21, 2016 Order does not countenance

defendant’s attempt to avoid APA review by manipulating the administrative record.

That is why documents reviewed by an agency in reaching its decision — and especially

documents specifically addressed in that decision and which are counter to the decision — are

required to be part of the administrative record. The deliberative process privilege does not

apply when a document is specifically referenced in an agency’s final action. When an agency

incorporates a pre-decisional document “by reference into a final decision, the rationale for the

deliberative process privilege — namely, protecting the quality of agency decision-making ex

ante by facilitating the candid exchange of ideas — evaporates.” Nat’l Council of La Raza v.

Dep’t of Justice, 339 F. Supp. 2d 572, 585 (S.D.N.Y. 2004) (citing Nat’l Labor Relations Board

v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975), and Tigue v. Dep’t of Justice, 312 F.3d 70,

81 (2d Cir. 2002)).

Defendants attempt to distinguish La Raza on the grounds that the Department of Justice

there was affirmatively invoking the documents to support a policy. “Here, by contrast, the

NIGC has not held out the 2016 letter as its policy.”3 The decisive consideration is whether the

3 Federal Defendants’ Opposition to Plaintiff’s Motion to Complete and Supplement the Administrative Record, July 25, 2018, Dkt. 103, at 18 (cited herein as “Opp.”).


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document is referenced in and integral to the final decision. An agency may not exclude from

the record otherwise central materials simply because the agency claims it did not “rely” on them

for its decision. Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 139 (D.D.C. 2002).

C. The Tribe Will Be Harmed If the Opinion Is Not Included in the Record

The Tribe entered the resolution process, described in the Second Amended Complaint

and culminating in the 2017 Decision, precisely in order to procure Interior’s position on the

Tribe’s acknowledgment. Requiring the NIGC to issue a new decision and order in explicit

consideration of the DOI’s letter meant that the NIGC would base its final decision on a current

DOI analysis of the Tribe’s federal acknowledgment. By statute and inter-agency agreement,

that determination is the DOI’s decision to make.

Congress has passed an act clarifying that the § 2719(b)(i)(B)(ii) determination was

specifically delegated to the Secretary of the Interior. Citizens Exposing Truth About Casinos v.

Kempthorne, 492 F.3d 460, 462 (D.C. Cir. 2007). “The authority to determine whether a specific

area of land is a ‘reservation’ for purposes of Sections 2701-2721 of title 25, United States Code,

was delegated to the Secretary of the Interior on October 17, 1988.” Pub. L. No. 107-63, § 134

(2001), 115 Stat. 414.4 “Afterward, by Memorandum of Agreement, the Secretary and the

National Indian Gaming Commission … agreed that the Secretary is to determine whether a tribe

meets one of the IGRA’s exceptions when the Secretary decides to take land into trust for

gaming.” Citizens Exposing Truth, 492 F.3d at 462-63 (citing Memorandum of Agreement

between the NIGC and DOI, Feb. 26, 2007). That Memorandum of Agreement was in effect,

4 See also City of Roseville v. Norton, 348 F.3d 1020, 1029 (D.C. Cir. 2003); Amador County v. S.M.R. Jewell, 170 F. Supp. 3d 135, 146 (D.D.C. 2016).


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and the government bound to follow it, when the Notice of Violation was issued and when the

Tribe appealed the Notice of Violation to the Commission.5

The NIGC claims that it no longer follows the Memorandum of Agreement, but admits

that to this day when the NIGC issues its own Indian Lands Opinions (which are always

published or part of the record), there always is a concurrence by the Department of the Interior.6

Nonetheless, the 2015 Decision relies solely on a 2008 opinion written by NIGC staff

lawyer Penny Coleman for the proposition that the Tribe was not federally acknowledged. Ms.

Coleman concluded that the initial reservation exception did not apply because Akela Flats had

not yet been declared the Tribe’s reservation and because the Tribe was not acknowledged

pursuant to 5 C.F.R. Part 83. Ms. Coleman, as required by the MOA, sought the concurrence of

Interior in her opinion. In response, the Solicitor’s Office advised that:

We also agree that the Tribe is not a restored tribe, that the lands are not restored lands and that they cannot be the initial reservation of the Tribe within the meaning of the IGRA.

We do not agree, however, with all parts of your analysis. We would be glad to provide you with a more detailed explanation of our positionbut since we agree with your ultimate conclusion a more detailed explanation may not be necessary — saving us time to focus on other pressing business.

5 Id.; see also Declaration of John Tahsuda, Principal Deputy Assistant Secretary-Indian Affairs Exercising Authority of the Assistant Secretary - Indian Affairs, attached as Exhibit C to the Opposition, Dkt. 103-3, at ¶ 15 (referred to as “Tahsuda C Declaration” and cited as “Tahsuda C Decl.”).

6 Declaration of Michael C. Hoenig, July 25, 2018, attached as Exhibit D to the Opposition, Dkt. 103-4, at ¶¶ 14-18 (cited as “Hoenig Decl.”). It is necessary for the NIGC and the DOI to concur on all Indian lands opinions. The Memorandum of Agreement emphasizes achieving concurrence, and important policy considerations underlie such concurrence. If the agencies disagree about the gaming status of a parcel of land, a tribe relying on the opinion of only one of the agencies potentially exposes itself to potential liability to third parties or an enforcement action. When, as here, a tribe appeals a decision of the NIGC based on an Indian lands determination, fundamental due process mandates that the DOI Indian lands determination be made part of the administrative record of the appeal. Under the Memorandum of Agreement, if the agencies are not able to agree on an Indian lands determination under circumstances the opinion is to be made public, the non- concurring opinion, and the related analysis, are to be made part of the administrative record. Dkt. 80-4 at ¶ 8.


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Dkt. 102-1 (emphasis added).

It very well may be — indeed, it appears likely — that Interior agreed with Ms.

Coleman’s conclusion that that the initial reservation exception was not applicable because

Akela Flats had not been declared the Tribe’s reservation, but disagreed with her conclusion that

the Tribe was not acknowledged for purposes of IGRA.7 But at this time the Tribe does not

know, because neither Ms. Coleman nor anyone else at the NIGC asked Interior to provide “the

more detailed explanation of our position” that was offered by the DOI Solicitor.

The defendants argue that the Tribe are not harmed, because there are some materials

relating to the Tribe’s acknowledgement already are in the administrative record. Opp. at 20.

For this proposition, the government relies on the May 2008 opinion from Ms. Coleman and

their own 2015 Decision relying on the Coleman opinion, and claims these are “evidence” in the

record.8 Setting aside the circularity of their assertion, it cannot be said that Ms. Coleman’s

conclusion that the Tribe was not acknowledged under the federal acknowledgment process was

concurred in by the DOI Solicitor. To the contrary, the Solicitor’s Office has stated that “[w]e

do not agree, however, with all parts of your analysis.” Dkt. 102-1. The Tribe is entitled to

Interior’s position. Ms. Coleman’s opinion certainly is no substitute.

The harm to the Tribe from the NIGC’s failure to disclose the letter is substantial. The

NIGC’s 2015 Decision contained no analysis of whether the Tribe was federally acknowledged

for purposes of the initial reservation exception. In finding that the Tribe did not qualify for the

7 For the reasons explained in the Second Amended Complaint and in the record of the June 29, 2017 conference, the Tribe believes that the Indian Lands Opinion letter states Interior’s position that the Tribe was acknowledged by the Secretary of the Interior under the Federal acknowledgement process for purposes of 25 U.S.C. § 2719(b)(1)(B)(ii). The Court may confirm this by reviewing in camera the Indian Lands Opinion, which is in the Court’s possession. Dkt. 63.

8 Opp. at 21. All the other “evidence” cited by the defendants are the Tribe’s own briefs and letters containing legal argument to the NIGC. Id.


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exception, the NIGC relied entirely on Ms. Coleman’s 2008 conclusion that the Tribe was not

acknowledged. There was no assessment or concurrence by the DOI.

The December 9, 2016 DOI Indian Lands Opinion is the only assessment by DOI of

whether the Tribe is federally acknowledged for purposes of IGRA. “In cases where the

information is a central issue, the need for the documents will likely outweigh any negative

consequences of disclosure.” Burbar v. Inc. Vill. of Garden City, 303 F.R.D. 9, 14 (E.D.N.Y.

2014). The Tribe is entitled to the DOI’s assessment, which is what the Tribe bargained for in

the resolution process and what the Court ordered. Moreover, it is likely that DOI concluded that

the Tribe was federally acknowledged for purposes of the exception. Obviously, being denied

access to such a finding is highly prejudicial to the Tribe.

D. Defendants Will Not Be Harmed By Disclosure of the Indian Lands Opinion

The defendants claim that the government will be harmed by disclosure of the Indian

Lands Opinion because “public disclosure of pre-decisional internal opinions can chill the candor

of involved officials and staff and officials reasonably expect that the substance of their pre-

decisional discussions will remain confidential.”9 The Indian Lands Opinion, however, is not

and was never intended to be a pre-decisional internal recommendation to the NIGC. Its purpose

was to provide “Interior’s position regarding the Fort Sill Apache Tribe’s gaming eligibility

under the Indian Gaming Regulatory Act.” Dkt. 60. Therefore the expectation was that it would

be made part of the administrative record, just as the two Interior opinions from 2008 and 2009

are part of the record. From the start it was going to be the basis for the NIGC’s reconsideration

of its 2015 Decision. The actual understanding of the “involved officials and staff,” who were 9 Dkt. 103-2, “Declaration of Privilege Assertion,” Exhibit B to the Opposition, at ¶ 13 (referred to as “Tahsuda B Declaration” and cited in the form “Tahsuda B Decl.”); Dkt. 103-1, “Declaration of Chairman Jonodev O. Chaudhuri in Support of Federal Defendants’ Assertion of Deliberative Process Privilege,” Exhibit A to the Opposition, at ¶ 7 (referred to as “Chaudhuri A Declaration” and cited in the form “Chaudhuri A Decl.”).


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not asked to give declarations, or would not give them, is more candidly reflected by what their

attorney told the Court at that time:

Ms. Schwarz: No, Your Honor. What happens is the Secretary of Interior issues an opinion to the NIGC. The NIGC takes that into consideration when it issues its decision. It has I believe 30 days from receipt of an opinion from the Interior to issue its decision. Then at that time the decision becomes, I believe final and appealable.

Dkt. 79-2, Transcript of Sept. 30, 2016 Conference, at 12:15-20.

It would not have been reasonable for the involved officials and staff of the agencies to

have proceeded in the expectation that DOI’s position would not be part of a subsequent

administrative record, given (a) the process agreed to by the DOI and the NIGC, as reflected in

the stipulated order provided to the Court; (b) that every other such opinion of Interior is made

part of the administrative record; (c) that the NIGC would be reconsidering its 2015 Decision in

a final and appealable decision that by definition would discuss Interior’s position on the Tribe’s

acknowledgement; and (4) the statute declaring that DOI makes the determination on whether

the Tribe is acknowledged.

Significantly, the government offers no declarations from the authors of the Indian Lands

Opinion or anyone actually involved in the development of the Interior position. Instead of

testimony by those involved, the defendants offer only generic formulations about protecting

internal deliberations. Citing to the declarations of Messrs. Tahsuda and Chaudhuri, the

defendants claim harm because if the unnamed “authors had known that the letter would be made

public, they would likely have shied away from addressing controversial or difficult issues and

may not have felt sufficiently free to provide a frank assessment of the issues.” Opp. at 24.

These statements are not made in the Tahsuda and Chaudhuri declarations, however, and the

assertions themselves are conjectural. Meanwhile the authors of the Indian Lands Opinion are

alive and available, but their testimony has not been proffered.


10

The defendants cannot ask the Court to decide this motion on the basis of conjecture,

hearsay and might-have-beens. The parties’ agreement, embodied in the stipulated order

presented to the Court, precluded any reasonable expectation of confidentiality on the part of the

authors of the Indian Lands Opinion. They knew that the opinion was going to be reviewed by

the NIGC. If the NIGC agreed with the opinion, unquestionably it was going to be part of the

administrative record. The authors also knew that all prior Indian Lands Opinions have been

published or made part of the administrative record.10 There could have been no expectation of

confidentiality with this opinion. Without that expectation, both the attorney client privilege and

the justification for the deliberative process privilege are gone.

E. Defendants Seek to Cherry-Pick the Indian Lands Opinions That Will Be Included in the Administrative Record

The Tahsuda and Hoenig declarations concede that until 2013, and during the period of

the notice of violation and the administrative appeal at issue here, the DOI and the NIGC

operated under a Memorandum of Agreement, exactly as the Tribe asserted in its Second

Amended Complaint and this motion. Tahsuda C Decl. ¶ 15; Hoenig Decl. ¶¶ 14-18. That

Memorandum of Agreement provides that the opinion issued by Interior shall become part of the

administrative record:

If a tribe appeals a decision of the Chairman to the full Commission pursuant to the Commission’s regulations in effect at the time of the appeal and the subject of that appeal is an Indian lands opinion that has been issued pursuant to this MOA, then counsel to the full Commission must follow the procedures outlined in the MOA before issuing final advice to the Commission and the Solicitor’s response to the proposed advice to the Commission shall become part of the record considered by the Commission.

Dkt. 80-4 at 2 ¶ 8 (emphasis added). 10 See Brief in Support of Plaintiff Fort Sill Apache Tribe’s Motion to Complete and Supplement the Administrative Record With Respect to the 2017 Decision of the National Indian Gaming Commission, June 27, 2018, Dkt. 102, at 22-23 & nn. 4, 5 (cited herein as “Br.”).


11

Thus if the Interior lands opinion, whether denominated as such or as a “concurrence,”

was issued at any time prior to 2014, there could be no expectation by the authors or recipients

that it would be confidential. In fact, in this case two such letters are found in the administrative

record. Dkt. 102-1 & 102-2.

Since the Memorandum of Agreement allegedly expired, the government asserts that the

DOI and NIGC have followed a similar practice, only now it takes the form of DOI receiving a

draft of the NIGC Indian Lands Opinion, giving comments, then concurring in the final product.

Tahsuda C Decl. ¶¶ 13, 16; Hoenig Decl. ¶¶ 14-18. These letters also typically are made public.

See Br. at 22-23 & nn. 4, 5. Under either procedure, then, the authors of the Indian Lands

Opinion, and the agencies, could not have expected the Indian Lands Opinion to remain

confidential —particularly here, given the Court’s orders, as discussed above.

In its moving brief, the Tribe pointed out that the defendants’ attempt to exclude the

DOI’s 2016 Indian Lands Opinion from the administrative record as “internal agency

deliberations” is inconsistent with their treatment of DOI Solicitor’s opinions that they find

favorable, which the NIGC included in the administrative record for the 2015 Decision. Br. at

24-25. The Department of Justice is cherry-picking the Interior Solicitor’s Office Indian lands

opinions that support the position it wants to take in this action, in disregard of the principle that

an agency may not skew the record by excluding unfavorable information.11

In response, the defendants argue that the production of the two prior Interior

concurrences in this case does not constitute a subject matter waiver of privileges with respect to

the Indian Lands Opinion. Opp. at 30-31. However, to the extent that under some other

circumstances the defendants might have claimed that privileges apply to the Indian Lands

11 See, e.g., Banner Health v. Sebelius, 945 F. Supp. 2d 1, 16 (D.D.C. 2013), decision vacated in non-pertinent part on reconsideration, No. CV 10-01638 (CKK), 2013 WL 11241368 (D.D.C. July 30, 2013).


12

Opinion, those privileges were waived, knowingly and voluntarily, on December 9, 2016 when

the defendants produced the opinion to the Court stating that it complied with the requirement in

the October 16, 2016 Order that defendants provide “Interior’s position regarding the Fort Sill

Apache Tribe’s gaming eligibility under the Indian Gaming Regulatory Act.” At that point, there

could be no expectation of confidentiality with respect to the Indian Lands Opinion.

F. The Declarations Submitted By Defendants Should Be Given No Weight

The defendants have proffered five declarations from three witnesses: a newly appointed

official at DOI, John Tahsuda, who was a lobbyist at the time of the events in question, and from

NIGC Chairman Chaudhuri and NIGC General Counsel Michael Hoenig. None of these three

had anything to do with preparing the Indian Lands Opinion. The defendants have not proffered

a declaration from anyone involved in preparing the Indian Lands Opinion.

Federal Rule of Evidence 602 provides, in relevant part, that a witness may testify to a

matter only if evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter. Fed. R. Evid. 602. An affidavit or declaration is inadmissible if “the

witness could not have actually perceived or observed that which he testifies to.” Argo v. Blue

Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006); see Smith v. United

States, 583 A.2d 975, 983-84 (D.C.1990). For this reason, the Tahsuda declarations should be

accorded no weight, and the primary declaration from Chairman Chaudhuri also should be

largely discarded. Messrs. Tahsuda and Chaudhuri do not have personal knowledge of the

process that led to the creation of Indian Lands Opinion, or the analysis and preparation of the

opinion itself. Most of their “testimony” is simply a string of legal conclusions or conclusory

assertions. A “conclusory statement concerning an alleged historical event” is “presumptively

violative” of the requirement of personal knowledge. Hall v. Central Intelligence Agency, 538 F.

Supp. 2d 64, 67-68 (D.D.C. 2008) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888


13

(1990) (the object “is not to replace conclusory allegations of the complaint or answer with

conclusory allegations of an affidavit”)).

1. Tahsuda Declarations

Mr. Tahsuda gives two declarations. One, Exhibit “B” to the government’s Opposition

Brief, is denominated a “Declaration of Privilege Assertion.” Dkt. 103-2, Tahsuda B Decl. The

second, Exhibit “C” to the Opposition, purports to explain the process for issuing Interior

opinions on IGRA exception questions. Dkt. 103-3, Tahsuda C Decl.

Mr. Tahsuda was not even an employee at Interior when any of the events in question

occurred. Tahsuda B Decl. ¶ 2. Instead he was a lobbyist working at “Navigators Global,

LLC.”12 He has no first-hand knowledge of anything in this case. He has no knowledge of the

“privileged and confidential information … withheld with regard to the letter dated December 9,

2016” or the deliberations, decisions and conversations that took place surrounding those

documents which he purports to testify about. Cf. Tahsuda B Decl. ¶¶ 10-13.

Not surprisingly, then, his declarations are simply a string of legal conclusions,

conclusory statements about matters he does not actually know anything about, hearsay, and

inadmissible lay opinion testimony. Thus he misleadingly claims that the “SOL DIA concurred

with both opinions” issued by the NIGC Office of General Counsel (in 2008 and 2009). Tahsuda

B Decl. ¶ 9 & Tahsuda C Decl. ¶ 16. Instead, as we have seen above, the SOL DIA actually said

“We do not agree, however, with all parts of your analysis.” Dkt. 102-1 (emphasis added).

With equal inadmissibility, Mr. Tahsuda offers his opinion on a legal conclusion, that the

attorney client privilege is properly asserted for the reasons listed in the privilege log,” “based

12 “Secretary Zinke Names John Tahsuda III the Principal Deputy Assistant Secretary for Indian Affairs,” Sept. 13, 2017, https://www.doi.gov/pressreleases/secretary-zinke-names-john-tahsuda-iii-principal-deputy-assistant-secretary-indian (last accessed August 6, 2018)


14

upon my personal consideration.” Tahsuda B Decl. ¶ 11. He purports to explain the regulatory

framework under 25 C.F.R. § 292 governing Tribal “requests” for Indian Lands Opinion

(Tahsuda C Decl. ¶ 12), without advising the Court (a) that the Tribe did not request the original

opinions at issue, which were undertaken unilaterally by the NIGC, (b) that the original opinions

were issued before the enactment of Part 292, and (c) that the NIGC’s 2015 Decision found that

the Part 292 “regulations do not apply to the Akela Flats parcel due to the grandfathering

provision in 25 C.F.R. § 292.26(b).” Dkt. 80-1 at 24.

In paragraph 12 of his B Declaration, Mr. Tahsuda offers pure hearsay to support a legal

opinion, which is based “on my personal review of the December 9, 2016 Letter” “as well as

discussions with the Office of the Solicitor staff familiar with these matters.” Tahsuda B Decl. ¶

12. In paragraph 13, he engages in a shadow theater rendition of the harms that will occur from

inclusion of the Indian Lands Opinion in the administrative record, lifted from the case law and

with no mention of any particulars related to the Indian Lands Opinion at issue here. He never

addresses the unusual and case-specific circumstances of the Indian Lands Opinion issued in

connection with the reservation at Akela Flats. He caps off the paragraph with an unexplained,

unsupported -- and inadmissible -- lay opinion that “I believe that the release of the document at

issue in this dispute would cause the staff to feel constrained in future discussions and

deliberations.” Id. ¶ 13.

Mr. Tahsuda concludes with the declaration that “while approval to publicize such

documents is frequently given, it is withheld where, as here, disclosure of the document might

create those harms the deliberative process privilege exists to protect.” Id. ¶ 14. He does not

identify what distinguishes this case from every other IGRA case, where Indian Lands Opinions


15

always are released. See Br. at 22-23 & nn. 4, 5. He further fails to explain how the 2016 Indian

Lands Opinion differs from the two prior DOI concurrences, which have been disclosed.

2. Chaudhuri Declarations

NIGC Chairman Jonodev Chaudhuri also gives two declarations. The primary

declaration, exhibit A to the Opposition, like the Tahsuda B Declaration is a string of legal

conclusions, conclusory factual statements and hearsay.13 Thus Mr. Chaudhuri’s declaration,

like Mr. Tahsuda’s, bases his lay opinions on hearsay “discussions with NIGC Office of General

Counsel staff familiar with these matters.” (Chaudhuri A Decl. ¶ 4). Mr. Chaudhuri also,

inexplicably, claims that the Indian Lands Opinion “reflect[s] pre-decisional deliberations

occurring between the Commission -- meaning Vice Chair Kathryn Isom-Clause, Associate

Commissioner E. Sequoyah Simermeyer, and myself -- and the NIGC Office of General

Counsel.” Id. ¶ 5. He offers conclusory legal opinions (id. ¶ 6) and traffics in generic

descriptions of potential harm to the NIGC if the Indian Lands Opinion is disclosed (id. ¶¶ 7-8).

G. The NIGC May Not Exclude Documents Adverse to its Decision

The December 9, 2016 Indian Lands Opinion is the only document that the 2017

Decision states was considered by the Commissioners in making their decision. The privilege

log provided by defendants certainly confirms that the Commissioners reviewed nothing else. If

the Commissioners did not review and consider the Indian Lands Opinion, the 2017 Decision is

both false and arbitrary and capricious.

The Indian Lands Opinion must be part of the administrative record. An agency “may

not skew the record by excluding unfavorable information but must produce the full record that

13 Dkt. 103-1, “Declaration of Chairman Jonodev O. Chaudhuri in Support of Federal Defendants’ Assertion of Deliberative Process Privilege,” attached to the defendants’ Opposition as Exhibit A, at paragraphs 4-9. This declaration is referred to as “Chaudhuri A Declaration” and cited in the form “Chaudhuri A Decl.”


16

was before the agency at the time the decision was made.” Sears, Roebuck & Co. v. U.S. Postal

Service, 118 F. Supp. 3d. 244, 246 (D.D.C. 2015), quoting Blue Ocean Institute v. Gutierrez, 503

F.Supp.2d 366, 369 (D.D.C. 2007). The agency may not exclude information from the record

simply because it did not “rely” on the excluded information in its final decision. Banner Health,

945 F. Supp. 2d at 16, citing Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C.2006).

Rather, “a complete administrative record should include all materials that might have influenced

the agency's decision.” Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143 F. Supp. 2d 7, 12

(D.D.C. 2001)(citations and internal quotes omitted).

Defendants invoke the presumption of regularity for administrative records. See, e.g., Opp.

at 32. But that presumption is overcome when “the agency deliberately or negligently excluded

documents that may have been adverse to its decision.” Styrene Info. & Research Ctr., Inc. v.

Sebelius, 851 F. Supp. 2d 57, 62–63 (D.D.C. 2012) (quoting City of Dania Beach v. Federal Aviation

Admin., 628 F.3d 581, 590 (D.C. Cir. 2010)). It is painfully clear that the NIGC and its trial counsel

have excluded the Indian Lands Opinion because it is adverse. The defendants never address

that obvious point.14

H. The Indian Lands Opinion Was Not Part of a “Deliberative Process with the NIGC”

In its moving brief, the Tribe pointed out that a document is “deliberative if it reflects the

give-and-take of the consultative process,” and that deliberative documents typically are

“recommendations, draft documents, proposals, suggestions, and other subjective documents

14 Oddly, the defendants also argue that the Indian Lands Opinion letter is not relevant because “whether an agency’s action was arbitrary and capricious turns on the agency’s stated reasons, not a predecisional interagency process.” Opp. at 20. But the agency’s stated reason for the 2017 decision is that “[a]fter careful consideration of the December 9th letter, we have determined there are not grounds, for settlement purposes, for reconsideration of the Commissioner’s May 5, 2015 Final Decision and Order.” It cannot then be said that the December 9th Indian Lands Opinion letter is not relevant to the state reason for the NIGC’s action.


17

which reflect the personal opinions of the writer rather than the policy of the agency,” and

recommendations from consultants. Am. Petroleum Tankers Parent, LLC v. United States, 952

F. Supp. 2d 252, 265-66 (D.D.C. 2013) (quoting Judicial Watch, Inc. v. Food & Drug

Admin., 449 F.3d 141, 151 (D.C. Cir. 2006)).

In response the defendants contend, without factual support, that the Indian Lands

Opinion was part of a “deliberative process” between the DOI and the NIGC. This contention is

not credible. NIGC did not have input into the Indian Lands Opinion. This is reflected in a

number of ways. First, the Indian Lands Opinion was required to be the official “position of

Interior” on the Tribe’s acknowledgement, so by definition the NIGC and its staff did not have

input. Second, the privilege log reflects that there was no communication between DOI and

NIGC about the development of the Indian Lands Opinion. Third, the NIGC did not in fact

appear to have any input or role in drafting the Indian Lands Opinion this fact. Fourth, among

the five declarations proffered by the government, nobody with knowledge attests to the

contrary. 15

I. The Indian Lands Opinion May Shed Light on Issues With the Process Itself

In its motion, the Tribe explained that the Indian Lands Opinion should be included in the

record because the Tribe alleges not merely that NIGC’s 2017 Decision violated the IGRA and

the APA, but that NIGC’s conduct in carrying out the decision-making process was an

intentional breach of the agreed process. Sec. Am. Compl. ¶¶ 170-74. There also is the specter

that the NIGC may have disregarded this Indian Lands Opinion under pressure from, or at the

direction of, the Department of Justice.

15 Note that DOI preparing the Indian Lands Opinion on its own, without input from NIGC, is consistent with the 2009 Memorandum of Agreement between DOI and the NIGC discussed below, which expressly states that an Indian Lands Opinion such as the December 9, 2016 letter is to be included in the final administrative record. See Dkt. 80-4 at 2 ¶ 8 and discussion in Section I(B)(6), infra.


18

And once they end up in court, they’re at the mercy, I say that advisedly, of the Department of Justice which may or may not agree with its client. And has been known to reach into the administrative process which is none of the department’s business and put a heavy hand on the scale. Which I consider absolutely astonishing, totally uncalled for and should be actually considered grossly improper. Grossly improper.

Dkt. 89 at 3:24-4:18.

The defendants’ response ignores the concerns about the process raised by the Court and

by the Tribe. Instead, the defendants assert that the cases relied on by the Tribe involve

“situations where the claim is dependent on intent and knowledge of an agency in issuing a

decision, such as a case alleging fraud or civil rights violations.” Opp. at 26. The defendants do

not address that the Indian Lands Opinion may, perforce, shed some light on the “record as to

what those who are charged with interpreting the law thinks it stands for; not the Department of

Justice; not the wisdom of Pennsylvania Avenue.” Dkt. 89 at 4:15-18. The defendants are

certainly correct that the Tribe is challenging a decision itself, the 2017 Decision. But the

process, too, regrettably and inescapably is at issue here too. See Sec. Am. Compl. ¶¶ 170-74.

J. The NIGC and DOI Cannot Promulgate “Secret Law”

The Tribe argued that the defendants are violating the requirement that an agency

disclose “orders and interpretations which it actually applies to cases before it.” Sterling Drug,

Inc. v. Fed. Trade Comm’n, 450 F.2d 698, 708 (D.C. Cir. 1971). The government responds that

the Tribe misapprehends the principle. “A court analyzing challenges to an agency's reliance on

FOIA exemption 5 draws a distinction between opinions and interpretations that embody the

agency's effective law and policy and papers that reflect the agency's group thinking in the

process of working out its policy and determining what its law shall be.” “In other words, an

agency may not cast records as predecisional when they actually convey what the agency's

policymakers have decided.” Opp. at. 27, quoting Wisdom v. U.S. Tr. Program, 232 F. Supp. 3d


19

97, 120 (D.D.C. 2017). But that is precisely what we are presented with here: the Indian Lands

Opinion, by agreement of the parties and order of the Court, is the “Interior’s position” on the

Tribe’s acknowledgment. By definition it is “what the what the agency's policymakers have

decided.” The defendant’s attempt to create secret law should be rejected.

K. The Indian Lands Opinion Is Not Protected from Disclosure By the Attorney-Client Privilege or the Work Product Doctrine

The defendant’s brief tries to portray the December 9, 2016 opinion from Interior as a

predecisional piece of advice from counsel. As reflected in the October 16, 2016 Order, the

letter was required to provide “Interior’s position regarding the Fort Sill Apache Tribe’s gaming

eligibility under the Indian Gaming Regulatory Act” (Dkt. 60), not a privileged and confidential

pre-decisional communication among counsel. Congress determined that the decision on

whether a tribe is federally acknowledged for purposes of IGRA is Interior’s determination to

make. There could not have been any expectation that an Indian Lands Opinion from the DOI

Solicitor, in the context of determining if one of the IGRA exceptions applies would be

maintained as confidential and non-public after the NIGC made its decision. To the contrary, as

we have explained a Memorandum of Agreement between the DOI and the NIGC specifies that

such Indian Lands opinions will be part of the administrative record after the NIGC makes its

final decision (although they can be kept confidential prior to that time), and that has been the

routine practice of the agencies in IGRA cases.

If there is some part of the Indian Lands Opinion that is “controversial,” or somehow

reflects a glimpse into the tactics of the government or controversy among the defendants (as the

Court appeared to allude to on July 29, 2017), those portions can presumably be redacted before

inclusion in the administrative record, as the Court can determine from an in camera review.

That is no reason to exclude from the record DOI’s analysis of the Tribe’s acknowledgment for


20

purposes of 25 U.S.C. § 2719(b)(1)(B)(ii). Indeed, it is the defendants’ burden to show that the

Indian Lands Opinion cannot be produced in a redacted form. U.S. Dep’t of the Treasury v.

Pension Benefit Guar. Corp., 222 F. Supp. 3d 38, 42–43 (D.D.C. 2016). They do not meet that

burden with the conclusory, non-specific statements made in the declarations they have

proffered.

L. A “Settlement Privilege” Does Not Protect Any Part of the Administrative Record From Disclosure

The Defendants persist in the fiction that the Indian Lands Opinion and the 2017

Decision are just “settlement communications,” and thus secrecy can be preserved. The Court

has rejected this fiction repeatedly, most recently in its May 25, 2018 Memorandum Opinion.

Dkt. 98.

Even assuming that somehow the Indian Lands Opinion was a “confidential settlement

communication,” however, that would not be grounds to exclude it from the administrative

record. Federal Rule of Evidence 408 does not provide a basis to do so. Rule 408 only limits the

introduction of evidence regarding offers or acceptance of compromises or settlements and

conduct or statements made in compromise negotiations. It does not, however, “require the

exclusion of any evidence otherwise discoverable merely because it is presented in the course of

compromise negotiations.” Fed. R. Evid. 408. Rule 408 is a preclusionary rule, not a discovery

rule. It is meant to limit introduction of evidence of settlement negotiations at trial and “was

never intended to be a broad discovery privilege.” NAACP Legal Defense Fund v. Dept. of

Justice, 612 F. Supp. 1143, 1146 (D.D.C.1985). Information that may not be admissible at trial

under the rule is still discoverable.

The Court already has ruled that Rule 408 does not shield the disclosure of the 2017

Decision, and that it is final agency action. “‘FRE 408 limits a document's relevance at trial, not


21

its disclosure for other purposes.’” Fort Sill Apache Tribe v. Nat'l Indian Gaming Comm’n, 234

F. Supp. 3d 209, 211 (D.D.C. 2017), quoting NAACP Inc. Fund, 612 F. Supp. at 1146. “‘[A]

party is not allowed to use Rule 408 as a screen for curtailing his adversary's right of

discovery.’” Fort Sill Apache Tribe, 234 F. Supp. 3d at 211 n.1, quoting In re Subpoena Issued

to Commodity Futures Trading Comm’n, 370 F.Supp.2d 201, 211 (D.D.C. 2005) (quoting 2

Weinstein’s Federal Evidence § 408.07 at 408–26 (2005)). The same analysis applies to the

Indian Lands Opinion.

The Tribe’s agreement to stay the litigation and undertake the two step resolution process

was predicated on the Tribe’s desire to have a DOI Opinion or concurrence on its

acknowledgement status. Sec. Am. Compl. ¶ 111. The NIGC’s 2015 Decision is arbitrary and

capricious in part because the NIGC never obtained the Interior’s concurrence. Id. Interior’s

view, on a question delegated by law to Interior, never was sought by the NIGC.

That opinion, and the NIGC’s subsequent re-consideration of its 2015 Decision, was not

a means to the end of settlement. It was the end: the Tribe would have what it was legally

entitled to have, Interior’s position on its acknowledgement pursuant to a federal

acknowledgement process. That might have the effect of resolving the case, and would have

here if the NIGC had considered the Indian Lands Opinion with respect for the law and in a non-

capricious, non-arbitrary fashion. But that the Indian Lands Opinion provided a potential means

to a settlement does not mean that it was a secret settlement communication. The process might

have resolved the case. But the process including the Indian Lands Opinion was agreed to, and

on that basis required by court order, as an end in itself. Sec. Am. Compl. ¶¶111.


22

II. Motion to Supplement the Record

A. The Administrative Record Should Be Supplemented With the 39 Documents Considered by the DOI in Issuing the 2016 Indian Lands Opinion

The administrative record should be supplemented with the materials reviewed and

considered by the DOI when preparing the December, 2016 Indian Lands Opinion. The NIGC

was required by its own procedures to seek an opinion from DOI on the question of the Tribe’s

federal acknowledgment for purposes of IGRA before it issued the 2015 Decision. The

Commission did not request such an opinion, thus necessitating the December 2016 Indian Lands

Opinion. Had the NIGC made the request earlier, all of the 39 documents (each received from or

sent to the DOI) would have been made part of the record of the NIGC administrative appeal by

the Tribe, together with any other records considered by the DOI.

The defendants do not address this argument in their opposition papers. Instead, they

argue that the 39 documents can be excluded from the record because the NIGC Commissioners

did not actually consider these documents. Opp. at 37-39. The defendants rely for this

proposition on Banner Health, 945 F. Supp. 2d at 16-19, and Sears, 118 F. Supp. 3d at 246. But

these cases do not support excluding the 39 documents. Here is what Banner Health says should

be included on a motion to supplement the record:

With that said, an agency “may not skew the record by excluding unfavorable information but must produce the full record that was before the agency at the time the decision was made.” Blue Ocean Institute v. Gutierrez, 503 F.Supp.2d 366, 369 (D.D.C.2007). Further, the agency may not exclude information from the record simply because it did not “rely” on the excluded information in its final decision. Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C.2006). Rather, “a complete administrative record should include all materials that might have influenced the agency's decision [.]” Amfac Resorts, 143 F.Supp.2d at 12 (citations and internal quotes omitted). “[I]f the agency decisionmaker based his decision on the work and recommendations of subordinates, those materials should be included as well.” Id


23

Banner Health, 945 F. Supp. 2d at 16; see also, e.g., Sears, Roebuck, 118 F. Supp. 3d at 246

(agency may not exclude information on the grounds that it did not “rely” on the excluded

information in its final decision); Maritel, 422 F. Supp. 2d at 196 (same); Ad Hoc Metals, 227 F.

Supp. 2d at 139 (D.D.C.2002); Amfac Resorts, 143 F.Supp.2d at 12 (same). Agencies are to

collect those materials “that were compiled by the agency that were before the agency at the time

the decision was made.” James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996);

Common Sense Salmon Recovery v. Evans, 217 F.Supp.2d 17, 20 (D.D.C.2002).

The 39 documents indisputably were before the agency at the time the decision was

made. As detailed in the declaration of Chairman Jeffrey Haozous, on October 3, 2016 the

documents were requested by Larry Roberts, the Assistant Secretary for Indian Affairs, for use in

the Indian Lands Opinion.16 They were sent to counsel for both of the defendants on October 11,

October 12 and October 28, 2016. Haozous Decl. ¶ 5. The documents thus were conveyed to

the NIGC and were in its control. Assistant Secretary Roberts assured Chairman Haozous that

the documents would be considered by DOI in preparing the letter. Id. ¶ 3. It is believed that the

documents are referenced in the Indian Lands Opinion letter (which the Court can confirm by an

in camera review of the letter). Sec. Am. Compl. ¶¶ 117, 170. The letter was reviewed by the

Commissioners. Dkt. 67, Ex. 1. The Commission therefore had actual notice of the relevance of

the 39 documents, and knew that the documents were in the control of the DOI and the

Commission’s own counsel at the DOJ.

The defendants proffer a second declaration of NIGC Chairman Chaudhuri, in which he

asserts that to the best of his knowledge, “the 39 documents were never in the NIGC’s control or

actual possession and were not considered directly or indirectly in the decision-making process

16 Declaration of Jeffrey Haozous in Support of Motion to Complete and Supplement the Administrative Record, June 26, 2018, at paragraph 3. The declaration is cited as “Haozous Decl.”


24

that led to the Commission’s January 12, 2017 determination.”17 This is incorrect. The

documents were in the possession of Ms. Schwarz at the DOJ, who is NIGC’s litigation counsel

in the case, and thus were in the control of the NIGC. Haozous Decl. at Exs. 1-3. They were

considered by the DOI, which is believed to have addressed or relied on them in its Indian Lands

Opinion. Thus they were considered directly or indirectly in the decision-making process that

led to the Commission’s January 12, 2017 determination.

“Unusual circumstances” warranting inclusion of the 39 documents in the record are

present here because the NIGC “deliberately or negligently excluded documents that may have

been adverse to its decision.” Sears, 118 F. Supp. 3d at 247. The Tribe has introduced evidence

of the specific documents missing from the record that were before the decision-makers.

Accordingly, the Tribe respectfully submits that its motion to supplement should be granted.

B. The Administrative Record Should Be Supplemented With the Email Communications On December 9, 2016 and January 11 and 12, 2017

The Tribe also challenges the privilege designation of the email communications by

NIGC counsel with the Commissioners on December 9, 2016, and January 11 and January 12,

2017, and requests an in camera review by the court to determine if they contain legal advice.

The defendants have not responded to this argument.

III. In the Alternative, the Court Should Consider the Materials Considered by the DOI In Issuing the 2016 Indian Lands Opinion as Extra-Record Evidence

In the alternative, the Tribe has asked the Court to admit these 39 DOI documents as

extra-record evidence addressing the process by which the Tribe became federally acknowledged

in the 1970s. After all, the process bears directly on the tribe’s acknowledgement for purposes of

25 U.S.C. § 2719(b)(1)(B)(ii). The Tribe meets three of the applicable standards for admitting

17 Declaration of Chairman Jonodev O. Chaudhuri, July 25, 2018, attached as Exhibit F to the Defendants’ Opposition, Dkt. 103-6, at paragraph 4.


25

extra-record evidence: (1) the agency failed to examine all relevant factors; (2) the agency failed

to explain adequately its grounds for its decision; and (3) and the agency engaged in improper

behavior. National Mining Ass’n v. Jackson, 856 F.Supp.2d 150,156 (D.D.C. 2012).

In response, the defendants argue that the exceptions are narrow and may only be

invoked in extreme instances, relying on this Court’s decision in Hispanic Affairs Project v.

Acosta, 263 F. Supp. 3d 160, 174 (D.D.C. 2017). Hispanic Affairs Project makes clear that the

exceptions may be invoked to “challenge gross procedural deficiencies—such as where the

administrative record itself is so deficient as to preclude effective review.” Id. That is precisely

the situation we have here, given the NIGC’s refusal to include the DOI Indian Lands Opinion in

the record. See Section I(B), supra. “Underlying all of these exceptions is the assessment that

‘resort to extra-record information [is necessary] to enable judicial review to become effective.’”

Calloway v. Harvey, 590 F.Supp.2d 29, 38 (D.D.C. 2008). Resort to the 39 documents is

necessary to enable judicial review to become effective in this case. The Tribe respectfully

requests that its motion for admission of extra-record evidence be granted.

CONCLUSION

For all the foregoing reasons, and the reasons set forth in the Brief in Support of its

Motion to Complete and Supplement the Administrative Record with respect to the January 2017

Decision of the National Indian Gaming Commission, the declaration of Chairman Jeffrey

Haozous and the other exhibits accompanying the motion, plaintiff Fort Sill Apache Tribe

respectfully moves the Court to order the defendants to complete and supplement the

administrative record related to the 2017 Decision.

Dated: August 6, 2018 Respectfully submitted,

/s/ Kenneth J. Pfaehler Kenneth J. Pfaehler, Bar No. 461718DENTONS US LLP


26

1900 K Street, N.W.Washington, D.C. 20006Tel: (202) 408-6468 Fax: (202) [email protected]

Counsel for Plaintiff Fort Sill Apache Tribe


27

108710207

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of August, 2018, the foregoing Reply Brief in

Support of Plaintiff Fort Sill Apache Tribe’s Motion to Complete and Supplement the

Administrative Record With Respect to the 2017 Decision of the National Indian Gaming

Commission and the exhibits thereto were filed with the Court’s CM/ECF system, which will

send notification to counsel of record in this matter who are registered with the Court’s CM/ECF

system.

/s/ Kenneth J. PfaehlerKenneth J. Pfaehler
