Argument recap: Searching for a middle ground in Indian casino case
On Tuesday, April 24, the Court heard arguments in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, consolidated with Salazar v. Patchak. The case presents the question whether a landowner affected by the building of an Indian casino in his community can sue the federal government under the Administrative Procedure Act (APA), seeking a declaration that the government unlawfully took the land into trust for the Tribe – a move that facilitated the building of the casino. Our preview of the case is here.
Up first was Assistant to the Solicitor General Eric Miller, arguing for the government that the suit was barred by the Quiet Title Act and that Patcak lacked prudential standing, in any event, to challenge the government’s decision to take the land into trust. The latter assertion was subject to immediate and hostile questioning from Justice Scalia, who suggested that because the government considered the ultimate use of the land as part of its decision whether to take the land into trust, citizens harmed by that use should have prudential standing to challenge that decision.
Other Justices were clearly disturbed by the government’s claim that although citizens could sue under the APA to stop the government from unlawfully taking land into trust before the transaction occurred, as soon as the government takes the land into trust, sovereign immunity attaches and any further APA proceedings would be barred. While the current government practice is to provide notice of the intent to take land into trust and then wait thirty days to allow comments and litigation, Justice Alito noted that these time limits were simply a matter of agency practice and not enforceable.
Justice Breyer also noted that when the APA suit was filed – before the transfer – the suit did not seek to divest the United States of title to any land; it simply sought to prevent the government from acquiring title in the first place (something not barred by the Quiet Title Act). Why should the character of the suit change mid-course and thereby allow the government to invoke the sovereign immunity bar? Justices Alito and Kennedy asked similar questions – why shouldn’t the nature of the suit be fixed when it was filed?
Miller responded that once the government took title to the land, Patchak was no longer seeking to prevent the transfer, but instead to undo it, which would amount to divesting the United States of title to trust land, which is what the Quiet Title Act bars. He also noted that Patchak sought a preliminary injunction preventing the transfer while the litigation was pending, but failed to appeal its denial.
Arguing for the Tribe, Patricia Millett likewise faced immediate skeptical questioning from Justice Scalia, who emphasized that a quiet title action is usually brought by someone claiming that he owns the land; in this case, Patchak does not claim ownership, but only that the government had no authority to take the land into trust. Ms. Millett argued that the focus of the Act is protecting the government from losing title to land; it does not matter whether it loses it to the person who brought the suit or to someone else.
The Chief Justice asked whether Patchak could get what he wanted by suing the Tribe directly, challenging its right to run the casino. He suggested that when the Tribe attempted to raise the trust status of the land as a defense, the court could then decide whether the trust was valid. Ms. Millett answered that such a suit might be theoretically possible, assuming that Patchak could overcome the Tribe’s independent possible claim of sovereign immunity.
The landowner’s lawyer, Matthew T. Nelson, had his own problems to deal with. Several Justices pressed him on whether, on his theory of the case, his client could skip the thirty-day pre-transfer comment period and wait for up to six years (the APA statute of limitations) before challenging the transfer. He ultimately acknowledged that this was true.
That concession was very troubling to Justice Breyer. Justice Scalia tried his best to help Mr. Nelson out: “You’re not asserting that the action can be brought anytime within six years after the government has already taken the land. You’re just asserting that an action brought before the government takes the land does not change its character and become a quiet title action afterwards. . . . I hope you are not arguing that.” Mr. Matthew embraced the suggestion of the more modest approach, although he was later forced by Justice Kagan to acknowledge that this was not the main position he pressed in his brief. “The briefing in this case,” she remarked, “is all about what you now say is your weakest point.”
When Mr. Miller stood up for rebuttal, Justice Kennedy asked him a question that seemed to go to the heart of much of the oral argument: “The government takes the position [that] . . . it can basically moot [a landowner’s] action by turning this into a quiet title action just by taking title. . . . And the Respondent on the other hand says, oh, well, this is an APA action, we can — we can wait forever, at least for 6 years. Is there some midway position that the government can’t moot the case too soon, that it must wait a reasonable time?”
Mr. Miller’s answer was, essentially, “no.”
It was quite unclear from the argument whether the government will win if the Justices accept that this is an all-or-nothing choice. I would not be surprised to see a majority coalesce around the compromise position advocated most strongly by Justice Breyer – and seemingly not raised in any significant way in the briefs – that (1) an APA suit commenced before the land is taken into trust is not a quiet title action within the meaning of the Quiet Title Act (and therefore, is not barred by that Act’s reservation of sovereign immunity for trust lands); and (2) the suit retains that character, and can go forward, even after the land is taken into trust.
The alternative approach, advocated by the Tribe and the government, would be to say that the solution to the problem of premature mooting of the APA claim is to require the plaintiff to seek a preliminary injunction barring the transfer while the case is in litigation (which the landowner here did) and appeal the denial of any such injunction (which the landowner here did not).