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KENNETH R. WILLIAMS, State Bar No. 73170Attorney at Law980 9th
Street, 16th FloorSacramento, CA 95814Telephone: (916)543-2918
Attorneyfor PlaintiffsNo Casino in Plymouth andCitizens
EqualRights Alliance
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
NO CASINO IN PLYMOUTH and CITIZENSEQUAL RIGHTS ALLIANCE,
Plaintiffs,
v.
SALLY JEWELL, in her official capacity asSecretary of the U.S.
Department of theInterior, et al.
Defendants.
Case No. 2:12-cv-01748-TLN-CMK
PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TO
DEFENDANTS'MOTIONS FOR SUMMARYJUDGMENT ON PLAINTIFFS'SECOND, THIRD,
FOURTH AND FIFTHCLAIMS FOR RELIEF
Date: March 26,2015Time: 2:00 p.m.Place: Courtroom No. 2
Judge: HonorableTroy L. Nunley
INTRODUCTION
Plaintiffs respectfully submit this opposition memorandum in
response to Defendants'
motions for summary judgment on the Plaintiffs' second, third,
fourth and fifth claims for relief.
Defendants' motionswere filed outside the sequence of the
motions allowed by the Court with
respect to Plaintiffs' motion, and potential cross-motions, on
the Plaintiffs' first claim for relief.
The Defendants' motions are intended to confuse the issues and
to deflect the Court from
considering Plaintiffs' motion for summary judgment first - as
scheduled by thePlaintiffs.1
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748
TLN CMK)
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7 need for theCourt to decide the remaining claims.
Specifically, if theCourt grants Plaintiffs'
8 motion and finds that the lone Band was nota"recognized Indian
tribe under federal jurisdiction"
9 in 1934, then the Parcel could not be taken into trust for the
lone Band and the remaining claims
would be moot. This s scheduling sequence was established and
consistently urged by Plaintiff
for judicial economy and efficiency reasons.12
The Court gave the Defendants an opportunity to file an
opposition and cross-motion on
.. the first claim - which they did1. But they went beyond the
Court's Order and filed new motions
15 on the remaining claims. Defendantmotions, designed to
distract, confirm the legal axiom that:
16 If you're weak on the facts and strong on the law, pound the
law. If you're weak on thelaw and strong on the facts, pound the
facts. If you're weak on both, pound the table.
,R This advocacy "maxim" isoften attributed toOliver Wendell
Holmes. But former Vice President
19 Al Gore, almost one hundred years later, provided a
"modernized" version:
20 "When you have the facts on your side, argue the facts. When
you have the law on yourside, argue the law. When you have neither,
holler!"
22 The undisputed facts provided in Plaintiffs' MSJ demonstrate
that the Federal Defendants
23 lacked the authority to take land into trust for the lone
Band because it was not a "recognized
24 Indian tribe under federal jurisdiction" in 1934. Carcieri v.
Salazar, 555 U.S. 379 (2009).
251In an obvious attempt to further conflate the issues,
Defendants filed their opposition to
26 Plaintiffs motion on the first claim and their motions on the
second, third fourth and fifth claimsinacombined brief. Plaintiffs
are responding to Defendants arguments on the first claim for
relief
27 in areply filed separately and request that Plaintiffs'
motion bedecided first. If the Court grantsPlaintiffs' motion there
will be no need to proceed with Defendants motion.
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As instructed, when the Court denied Plaintiffs motion for
judgment onthe pleadings,
(Electronic Court File (ECF) No. 71), Plaintiffs filed amotion
for summary judgment on their
first claim for relief. (ECF Nos. 60& 61.) Contrary to the
contention of the Defendants, Plaintiffs
did not abandon their other four claims in its complaint.
Instead, Plaintiffs noted that their first
claim for relief was a "keystone" claimwhich, if decided in
Plaintiffs' favor, would eliminate the
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARYJUDGMENT (Case No. 2:12-cv-01748
TLN CMK)
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Instead, the AR confirmsthat the lone Indians were a"non-tribal"
group of"non-ward" homeless
California Indians living near lone in 1934. The facts and law
are strong, and should compel
summary judgment, in Plaintiffs' favor on the first claim for
relief.
In contrast, the facts and law are not on the Defendants' side
on the first claim for relief.
The historic facts were concisely summarized in a 1933 letter
from the Superintendent of the
j Sacramento Indian Agencywhich describes the homeless
California Indian at lone as follows:
8 The situation of this group of [homeless lone] Indians is
similar to that ofmany others inthis Central Valley area. They
areclassified as non-wards ... because they are not
9 members of any tribe having treaty relations with the
Government, they do not live on anIndian reservation or rancheria
and none of them have allotments in their own right held intrust by
the Government. (Emphasis added; Undisputed Fact (UF) 23.)10
11
12
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. the fact that, instead of relying on the majority opinion in
Carcieri, they rely on a dissent
15 Thus, to divert theCourt's attention from theweakness of
their factual and legal positions
16 on the first claim, Defendants decided to file an
out-of-sequence motion on all the other claims
17 This was the equivalent of Defendants' "pounding the table"
and "hollering" to try to deflect a
judgment being issued in Plaintiffs' favor on the first
claimwhich would moot the remaining
claims and end this case. This tactic should be rejected by the
Court. Instead, Plaintiffs request
that the Court decide Plaintiffs motion first and reschedule
Defendants' motion if necessary.
In anyevent, Defendants' motions for summary judgment on
Plaintiffs' remaining four
23 claims are without merit. First Mr. Laverdure was not
appointed by the President orconfirmed
24 bythe Senate and lacked any authority to take any land out of
State jurisdiction and put it in trust
25 for lone Indians. Thus the ROD is void. Also Defendants did
not follow their own regulations
(25 CFR Part 151), IGRA or NEPA motions should be denied and
judgment should be entered in27
Plaintiffs' favor on all the claims. Fed. R. Civ. Proc.
56(028
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Thus, the facts as summarized in 1933 confirmed that lone
Indians were not a recognized tribe or
under federal jurisdiction in 1934. The weakness of Defendants'
legal position is confirmed by
PLAINTIFFS' MEMORANDUMOF POINTS AND AUTHORITIES IN
OPPOSITIONTODEFENDANTS' MOTIONS FORSUMMARYJUDGMENT (Case No.
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1 STATEMENT OF THE CASE9
This lawsuit was filed onJune 29, 2012, thirty days afterthe ROD
was published. (ECF
No. I). And Plaintiffs filed their First Amended Complaint
forDeclaratory and Injunctive Relief
onOctober 1,2012 (ECF No. 10). Plaintiffs named several federal
officials and employees with
the Department of Interior(DOI), the Bureau of Indian Affairs
(BIA), the Officeof Indian
7 Gaming (OIG) and the National Indian Gaming Commission (NIGC)
who were involved in
8 preparing or approving theROD. The action against the Federal
Defendants was brought
9 pursuant to the Administrative Procedures Act (APA) and sought
Declaratory and Injunctive
relief. The Federal Defendants filed theirAnswer on December 10,
2012. (ECFNo. 14.)11
The lone Band filed a motion to intervene as defendant on June
6, 2013 (ECFNo. 35.)12
And the Intervenor lone Band finally filed
itsAnsweronNovember26, 2013. (ECFNo. 57.)
.. Thus the lone Bandwaived its sovereign immunity claimand
becamea Defendant. Although the
15 APA does not apply to the lone Band, the Plaintiffs'
Declaratory and Injunctive relief claims do
16 apply against the lone Band.
1' The Plaintiffs' Amended Complaint includes five causes
ofaction:18
1. First Claim for Relief- The Federal Defendants lack the
authority to take land into trust19
for the lone Band because it was not a "recognized tribe now
under federal jurisdiction"20
in 1934 when the IRA was enacted. Carcieri v. Salazar, 555 U.S.
379 (2009).
29 2. Second Claim for Relief - The Federal Defendants failed
tocomply with their own
23 regulations when they reviewed and approved the ROD and their
approval of the ROD
24 wasarbitrary, capricious and an abuse of discretion. 25
C.F.R. 151.10 & 151.11.
3. Third Claim for Relief- The Federal Defendants don't have the
authority take privately
owned lands into trust for the lone Band free of State and local
regulation. To do so,
would violate the principles of federalism. See Hawaii v. OHA,
129 S.Ct 1436 (2009).
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748
TLN CMK)
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4. Fourth Claim for Relief - TheFederal Defendants incorrectly
decided that, assuming the
lands are properly taken into trust, thesubject property would
qualify as "restored land
for a restored tribe" under IGRA. 25 U.S.C. 2719.
5. Fifth Claim for Relief-The Federal Defendants failed to
comply with NEPA when they
reviewed and approved the fee-to-trust transfer and the casino
project. 42 U.S.C. 4321
7 et seq. seq.; 40 C.F.R. 1500 et seq. seq.
8 Plaintiffs have consistently notified the Defendants and the
Court that they intended to
9 bring adispositive motion on the first claim for relief that
could alleviate the need to adjudicate
the remaining claims (See ECF No. 58.) Plaintiffs' first attempt
to resolve this case with a
dispositive motion on their first claim for relief was a motion
for judgment on the pleadings filed12
on February 13, 2014. (ECF Nos. 60, 61 and 62.) Defendants filed
oppositions challenging the13
.. procedure used by the Plaintiffs not the merits of the
motion. (ECF Nos. 64 and 65.) On August
15 11, 2014 the Court denied Plaintiffs' motion for Judgment on
the pleadings (ECFNo. 71)
16 The Court agreed with the Defendants' procedural contentions
and directed the Plaintiffs
1 file amotion for summary judgment instead ofamotion for
judgment on the pleadings on their18 first claim for relief.
(ECFNo. 71.) Specifically, Plaintiffs weredirected to file their
motion for19
summary judgmentwithin 60 daysof the issuance of theCourt's
Order (filedOctober 14,2014)20
The Defendants had 60 days to file a "combined opposition and
cross motion for summary
22 judgment" (filed December 15,2014). Plaintiffs then had 60
days to file their reply and
23 opposition to the cross motions (due February 17,20151.
Defendants will have 30days to file
24 their replies (dueMarch 22, 2015). And the hearing is set
forMarch 27. 2015.
25 This briefing schedule would have worked but-for the fact
that in addition to filing an
opposition and cross-motion on the first claim for relief on
December 15, 2015, Defendants filed27
new motions for summary judgment on the second, third, fourth
and fifth claims on December 15,28
PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (CaseNo. 2:12-cv-01748
TLNCMK)
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2014. The Defendants out-of- sequence motions for summary
judgment on issues separate from
related to the first claim for relief, disrupted the entire
briefingschedule. Plaintiffs do not have
sufficient time to file cross-motions on the second, third,
fourth and fifth cross-motions for
summary and related replies before the March 27, 2015 hearing.
So Plaintiffs can only oppose the
Defendants motion without filing cross-motions for
summaryjudgment on the second, third,
7 fourth and fifth claims for relief. Plaintiffs reserve the
right to do soat a later date.
8 Plaintiffs brought a motion for summary judgment on their
first claim for relief, only,
9 because, if decided in plaintiffs' favor, it is would resolve
the remainder of the case. Specifically,
if Plaintiffs' motion is successful, then the propertycannot be
taken into trust and there should be11
no need for the parties to litigate, or for the Court to decide,
the remaining four causes of action.12
Defendants, in hopes of derailing Plaintiffs' effort to have
their first claim decided first,13
. . have filed a motion for summary judgment on the remaining
four claims with its cross-motion on
15 the first claim. Thus, despite the litigation andjudicial
inefficiency of Defendants' approach.
16 Plaintiffs file this opposition to the Defendants' motion on
the remaining claims. But Plaintiffs
'' continue to request that Defendants' motion becontinued and
these issues be decided if necessary18 after Plaintiffs motion on
the first claim for relief (the Carcieri claim) is finally
resolved.19
STATEMENT OF FACTS20
This casewas triggered by the Record of Decision (ROD) of the
Bureau of Indian Affairs
22 (BIA) dated May 24, 2012 and published May 30, 2012 (77 Fed.
Reg. 31871-31872, May 30,
23 2012; AR010049 et seq. seq.). The ROD purports to place
228.04 acres of privately owned land
24 into trust for the lone Band for gaming purposes. The land is
located in the City of Plymouth,
AmadorCounty. The property is not, and neverwas, owned by the
lone Band. Instead, it is
owned by private non-Indian investors who hope to reap
theeconomic benefits of building and27
operating an Indian casino in conjunction with the lone Band as
a front group28
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748
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According to the ROD, the lone Band submitted its trust
application to the BIA in
November 2005. The stated purpose of the proposed trust
acquisition was to construct a 120,000
square foot casino, a 250 room hotel, a 30,000 square foot
convention facility and related
structures in the middleof the small rural town of Plymouth in
AmadorCounty. A major casino
would overwhelm the little town of Plymouth with traffic and
create adverse environmental
7 impacts including irreversible impacts to the air and water
quality in Plymouth. It would also
8 forever change to rural and quiet life-style of the community.
Thus this lawsuit was initiated
9 The supposed undisputed facts that Defendants claim support
their motions for summary
judgment are not referenced with the motions. Specifically,
Defendants failed to comply with the11
summary judgment procedures and did not file a Statement
ofUndisputed Facts (SUF) in support12
of their motions. (Fed. R. Civ. Proc. 56 and L.R. 260.) The
Federal Defendants claim that it is13
. not usually necessary to file an SUF in an APA case. That
could be true in some circumstances,
15 but they did not ask the Court for a waiver. Nor they ask the
Plaintiffs for a stipulationwaiving
16 the requirement. The Intervenor-Defendant acknowledged that a
SUF is usually required in non-
'' APAcases but reserved the right to do so latter. Local Rule
260 does not allow the SUF to be
filed at a later date. Their motion should be denied without
prejudice to being refiled with a SUF,
The Defendants have failed to identify which documents in the AR
support their motions
for summary judgment. Instead, they claim their motions are
supported by the entire AR. But the
Plaintiffs and the Court should not be required to scour the
20,000 page AR to determine which
23 evidence contradicts phantom documents not referenced by the
Defendants. Keenan v. Allan, 91
24 F.3d 1275,1279 (9th Cir. 1996). The Court is entitled to
limit its review to the documents
25 submitted for the purposes ofsummary judgment and those parts
ofthe record specifically96 identified in the motion for summary
judgment. Carmen v. San Francisco Unified Sch. Dist., 23727
F.3d 1026, 1030 (9th Cir. 2001). Defendants; motion should be
denied without prejudice because28
PLAINTIFFS' MEMORANDUM OF POINTSAND AUTHORITIESIN OPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (CaseNo. 2:12-cv-01748
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they failed to submit a Statement of Undisputed Facts with their
motion. And basedon the
documents referenced in their motions, summary judgment should
begranted in Plaintiffs' favor.
Despite this deficiency inDefendants' motion, Plaintiffs are
filing concurrent with this
opposition, a separate Statement of Undisputed Facts
inopposition to Defendants' motion. All the
Undisputed Facts listed in the Plaintiffs Statement of
Undisputed Facts are supported bytheAR.
7 And, notonly do the undisputed facts reveal that Defendants'
motions should bedenied, they
8 demonstrate that judgment should be entered in Plaintiffs
favor. Fed. R. Civ. Proc. 56(f).
ADMINISTRATIVE RECORD
The 2013 Administrative Record (AR) created and filed with the
Court by the Federal
Defendants is a classic "post-hoc rationalization"and
justification of a previous decision already
made by Mr. Laverdure. It was not in existence when Mr.
Laverdure signed the ROD in May
2012. And there are no references to the "AR" by Mr. Laverdure
in the ROD.
15 This is not to say that there was not a "record" at the time
Mr. Laverdure made his
6 decision. The record at that time consisted of all the
Department of Interior (DOI) files and
17 documents regarding the lone Indians. It at least included
copies ofall the recently discovered18 DOI files and documents
located in the UC Davis Special Collections Library. It also
included19
the entire court file in the lone Band v. Burriscase. The DOI
was the prevailing party in that case20
and it is referenced in the ROD. It is part of the
administrative record in existence when the ROD21
ryr. was signed by Mr. Laverdure
23 The first part of the AR was prepared in 2013 about a year
after Mr. Laverdure issued the
24 ROD and six month after he left the DOI.. It consists of over
20,000 pages of random
25 documents. Many ofthe documents are redacted or incomplete.
Many ofthe documents are self-26 serving "drafts" orare irrelevant
and should not be in the AR. The documents often reference
other documents which are not attached or included in the AR.
Some of the documents are
8
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OPPOSITIONTODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT(Case No.
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covered by a protective order in this case even though they were
circulated toother third parties
prior to this case. And there are major gaps in the AR; for
example, there are virtually no
documents in theAR from 1927 to 1972. This is especially odd
given the critical decade of the
1930swhen the IRAwas enacted and implemented.
Wenowknow, from the UC Davis Special Collections Files, that
there was a great deal of
7 correspondence in the 1930's and later in the DOI's files that
reveal that federal government
8 decided that it could not buy land or provide any federal
assistance to the lone Indians because
9 they were "non-ward" and "non-tribal" homeless California
Indians that were not under federal
jurisdiction in 1934. (See Kallenbach DeclarationECFNo. ) It is
now apparent that pertinent
federal documents from the 1930sdiscussing the
non-applicabilityof the IRA to the lone Indians
were deleted form the record and/or AR before it was filed with
the Court.
Courts consistently reject attempts by agencies to limit
judicial review to only that portion
15 of the record submitted bythe agency, to theexclusion of
otherdocuments thatwere clearly
16 considered. An agency is not allowed to withhold from the
administrative record documents or
' 7 "evidence unfavorable to its case." Walter O. Boswell Mem
7Hosp. v. Heckler 749 F.2d 788, 792
(D.C. Cir. 1984). The whole administrative record"is not
necessarily those documents that the
agency has compiled and submitted as 'the' administrative
record." Thompson v. US Dept. Of
Labor, 885 F.2d 551, 555-556 (9th Cir. 1989). All documents
considered by anagency, either
directly or indirectly, are part of the record available for the
Court's review and regardless of
23 whether they are designated in 'the administrative record'
proffered by the agency. Id.
24 ARGUMENT
25 1. The Record ofDecision signed by Mr. Laverdure is void and
should be vacated; Mr.26 Laverdure was not appointed by the
President or confirmed by the Senate and,
therefore, hewas not authorized to take land into trust for the
lone Indians.
The Appointments Clause ofArticle II ofthe United States
Constitution reads as follows:9
PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No.2:12-cv-01748
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"[The President] shall nominate, and by andwith the Advice
andConsentof the Senate,shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supremeCourt, and all other
Officers of the United States, whoseAppointmentsare not
hereinotherwise provided for, and which shall beestablished by Law:
buttheCongress may byLawvest the Appointment of such inferior
Officers, as they think proper, in the Presidentalone, in the
Courts of Law, or in the Heads of Departments."
U. S. Const., Art. II, 2, cl. 2.
"The Constitution, for purposes ofappointment... divides all its
officers into two
classes." United States v. Germaine, 99U. S. 508, 509(1879). As
stated by the Supreme Court in:
"Principal officers are selected by the President with the
advice and consent of the Senate.
Inferior officers Congress may allow to be appointed by the
President alone, by the heads of
departments, or by the Judiciary." Buckleyv. Vallejo, 424 U.S.
1, 132 (1972). Principal Officers
is an appointee who exercises "significant authority pursuant to
the laws of the United States" or
"perform[s] a significant governmental duty exercised pursuant
to a public law."
The Secretary of Interiorand the Assistant Secretary of Interior
for Indian Affairs are
"principal officers" of the United States which require a
Presidential appointment and a Senatorial
confirmation. When decidingwhetheror not to take land into
trust, andout of Statejurisdiction,
they are obviously exercising "significant authority pursuant to
the laws of the United States"
including the Indian Reorganization Act of 1934 and the Indian
Gaming Regulatory Act" of 1989.
In fact, in ourFederal system, it hard to imagine amore
important authority or power granted to
the Secretary of Interior and Assistant Secretary of Interior
for Indian Affairs. ChiefJustice
Roberts during the Supreme Court hearing in Carcieri emphasized
the magnitude of this
important obligation
"[W]e are talking about an extraordinary assertion of power. The
Secretary gets to takeland and give itwhole different
jurisdictional status apart from State law and all - -wouldn't you
normally regard these types ofdefinitions in restrictive way to
limit thatpower instead ofsaying whenever he wants to recognize it,
then he gets the authority tosay this is no longer under Rhode
Island jurisdiction; it is now under my jurisdiction?"(SC Tr. at
36.)
10PLAINTIFFS' MEMORANDUM OFPOINTS ANDAUTHORITIES INOPPOSITION
TO
DEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748
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This "extraordinary assertion of power" can onlybeexercised by
the Secretary of Interior
or the Assistant Secretary of Interior for Indian
Affairsorotherprimary officer appointed by the
President and confirmed by the Senate. Interim acting Assistant
Secretary Laverdure was not
appointed by the President and was not confirmed by the Senate.
Therefore he lacked the
authority to transfer the Parcels into trust, and remove them
from State and local jurisdiction, for
the benefit of lone Indians. Furthermore, it did not take long
for Mr. Laverdure to abuse the
authority he thought he was given. Mr. Laverdure's attempt to
take the Parcels into trust for the
lone Indians reverse and was directly contraryto the position of
the last appointed and confirmed
Assistant Secretary of Interior for Indian Affairs.
While Larry Echohawk was Assistant Secretary of Interior for
Indian Affairs, the BIA and
DOI had declined to take the subject lands into trust because
the Solicitor's Office determined
that the lone Band was not a federally recognized or restored
tribe entitled to trust land under the
IRA or a casino under IGRA. (See AR007112). But that position
suddenly changed shortly after
Assistant Secretary Echohawk resigned in April 2012 and
appointed Defendant Donald E.
Laverdure as interim acting Assistant Secretary for Indian
Affairs. One month later Defendant
Laverdure, reversed the opinion by the Solicitor Bernhardt and
the position of by Assistant
Secretary Echohawkand issued the ROD purporting to take the
parcels into trust.
It should be noted that, beforebeing"appointed" as interim
acting Assistant Secretary,
Mr. Laverdure worked on and promoted the lone Indian application
within the Department. (See
AR 8575, 8771, 8805, 8813, 8816, 9745-9759, 9890, 9907 and
10040.) Despite Mr. Laverdure's
best efforts, he could notconvince Assistant Secretary Larry
Echohawk to change hisdecision,
supported by Solicitor Bernhardt's opinion, not to take the land
in trust for the lone Indians. But
it took less than amonth after being appointed as interim acting
Assistant Secretary, for Mr.
Laverdure to reverse Assistant Secretary Echohawk's position and
Solicitor Bernhardt's opinion
PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (Case No. 2:12-cv-01748
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and sign the ROD taking the land into trust for the lone
Indians.
Furthermore, Mr. Laverdure ignored the final judgment and judge
Karlton's decision in
lone Band v.Burris. Nor did he follow the Supreme Court's
directive in Carcieri. Instead, he did
just the opposite in apparent open defiance of the Supreme
Court's test. Contrary to Carcieri, Mr.
Laverdure claimed that the IRA phrase "recognized tribe now
under federal jurisdiction" was
ambiguous and therefore "the Secretary must interpret that
phrase in order to continue to exercise
authority delegated to him under section 5 of the IRA." This
conclusion is directly contrary to the
Supreme Court's Carcieri decision which held that the
phrase"recognized tribe now under
federal jurisdiction" was not ambiguous and the Secretary's
interpretation was not needed or
entitled to deference.
Mr. Laverdure was certainly aware of the Carcieri decision and
important limit on the
Secretary of Interior's power to take land into trust.
Forexample, on July 12, 2011, just nine
months before his "appointment," Mr. Laverdure testified before
Congress in support several
Bills to "restore" the Secretary of Interior authority to take
land into trust for Indian tribe. The
collected of proposed Bills supported by Mr. Larverdure were
known as the "Congressional
Carcieri fix." Although Congress did not pass theCarcieri fix,
when he got the opportunity, Mr.
Laverdure immediately tried to put the "fix" in the ROD for the
Indians near lone.
Defendant Laverdure's tenure as interim acting Assistant
Secretary lasted five months,
from April 2012 until September 2012, when current Assistant
Secretary of interior for Indian
Affairs, Kevin Washburn was appointed by President Obama and
confirmed by the Senate. Mr.
Laverdure left the DOIand returned to his tribe, the CrowTribe
ofMontana (Ties the Bundle
Clan), shortly after Secretary Washburn was confirmed bythe
Senate. Unfortunately, he left the
illicit ROD and this litigation as his legacy. Mr. Laverdure did
not have the authority to take land
into trust for the lone Indians. The RODthat he issued is void
and should be vacated.
12PLAINTIFFS' MEMORANDUMOF POINTS AND AUTHORITIES IN
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2. The ROD is not in compliance with the federal fee-to-trust
regulations. (2 CFR Part151.) It should be vacated and set-aside
unless until brought into compliance.
In his rush to put the Parcels in trust for the lone Indians,
Mr. Laverdure failed to fully
comply with 25CFR Part 151 when hereviewed and approved the ROD.
Forexample, the notice
of the ROD waspublished in the Federal Register onMay 30,
2012just six daysafter it was
signed by theSecretary. (77Fed.Reg. 31871-31872.). The ROD and
the notice of publication are
incomplete and premature because they failed to include the
required Title Examination for public
review and comment. (25 C.F.R. 150.11,151.12(b), 151.13 and
151.15.) The ROD should be
vacated unless and until full notice, including the title
document, is provided for public review
and scrutiny, and Title Examination is evaluated by the
Secretary of Interior.
Defendants acknowledge that, to acquire land in trust for a
tribe, the DOI and Secretary
must first comply with the regulations in 25 C.F.R. Part 151 in
addition to the mandates of the
IRA. (ROD at 3.) But despite this fact, as revealed in the ROD
and AR, the DOI and Mr.
Laverdure failed to comply with the applicable regulations,
including (UF 52-62):
Section 151.10(a) requires theSecretary to consider if there is
anystatutory authority for
the proposed acquisition and, ifso, any limitations contained in
such authority. There is
no statutory authority for the Secretary to take lands intotrust
on behalfof the lone
Indians, which was not a federally recognized tribe in 1934.
Section 151.10(b) requires the Secretary to consider if there
isa need for the acquisition
of additional lands. The ROD states that the lone Indians
currently have no reservation or
trust lands. (ROD at 59.) But the ROD does not address the fact
that the lone Indians
have occupied, and currently own several properties in Amador
County near lone which
has been sufficient to support their "needs."
Section 151.10(c) requires the Secretary to consider the purpose
for which the land will be
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used. The description in the ROD is incomplete because, although
it outlines the casino
project, if fails to reveal or study that the project also
includes the construction of 162
private residences on the Parcels. (See RODat 59-60.)
Section 151.10(e) requires the Secretary and DOI to consider the
impact on State and local
government if the land is acquired in "unrestricted fee status"
and is removed purpose
from the tax rolls. There is no evidence offered in the ROD that
the Parcels will be
acquired in "unrestricted fee status" and therefore eligible to
be exempt from State and
local tax. If not acquired in "unrestricted fee status", the
Parcels remain subject to tax.
The ROD's reliance on a "voided" Municipal Services Agreement
(ROD at 60) to support
the contention that the tribe is obligated to reimburse the
County of Amador is
inappropriate and disingenuous. There is no current requirement
for the lone Indians to
reimburse State and local government for lost tax revenue if the
FTT transfer is approved.
Also, even if taxes were reimbursed, the ROD does do not discuss
the additional costs that
will be incurred by government to providegovernmental services
to the project.
Section 151.10(f) requires the Secretary to consider
jurisdictional problems and possible
conflicts of land use. The use of the Parcels for a casino and
related projects is
inconsistentwith local land use and zoning rules. This issue is
not discussed in the ROD.
And the "voided" Municipal Services Agreementmentioned in the
RODdoes not exempt
the Parcels from State and local land use and zoning rules.
Section 151.10(g) requires the Secretary to consider whether, if
the land is taken in trust,
the BIA is equipped to discharge theadditional responsibilities
resulting from the
acquisition of the land in trust status. The ROD does not
address this issue.
Section 151.10(h) requires the Secretary toconsider whether
atribe has provided
sufficient, specific information to insure that the potential
environmental impacts of the14
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project are considered before the land is taken into trust. The
ROD does not address this
issue and it notclear if the lone Band provided the required
information.
Section 151.11 (c) requires the tribeto provide a plan to
Secretary which specifies the
anticipated economic benefits associated with the proposed use.
This issue is not
addressed in the ROD and it notclear if the lone Indians
provided the required plan.
Section 151.13 requires the tribe to furnish title evidence
meeting theStandards Forthe
Preparation ofTitle Evidence inLandAcquisitions by the
UnitedStates issued by the
United States Department of Justice. The title evidence should
list all liens, encumbrances
and title infirmities on the land to be acquired. And those
encumbrances, liens and
infirmities must be removed prior to acquisition if they make
title to the land
unmarketable. This issue is not addressed in the ROD and it not
clear if the information
was provided or if the Parcels were cleared of liens,
encumbrances or infirmities.
The Federal Defendants' failure to comply with their own
regulations when processing the
ROD is arbitrary, capricious and contrary to law. The RODdoes
not satisfy the requirements of
25 CFR Part 151. It is at best incomplete and should be
vacated.
3. Neither Mr. Laverdure, not the Department of Interior, had
the authority to takeprivately owned land into trust for the lone
Indian free from State and localregulatory jurisdiction. To do so
violates the principles of Federalism.
The State of California entered the Union on September9, 1850,on
an equal footing with
all other States. And, as is the casewith all States, public
domain lands in Californiawere to be
transferred to eitherthe State or into private ownership subject
to Statejurisdiction and
regulation. (UF 12 & 13.) In fact, California's Act
ofAdmission mandated that California shall
never interfere with the primary disposal of public domain lands
bytheUnited States. (9 Stats.
452.) In addition, in 1864, Congress limited the number of
Indian Reservations that could be
created in California from public domain lands to four
reservations. (UF 14) The remainder ofthe15
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public domain land was to be transferred to the State orsold
into private ownership, subject to
State and local regulation, for settlement and development.
The undisputed facts in this case are that the Parcels are
privately owned by third parties
who hope to partner with the lone Indians and benefit
financially from the construction and
management of a mega-casino in the town of Plymouth. The DOI's
and Mr. Laverdures's
decision to take the privately owned Parcels into trust in favor
of the lone Band, free from State
and local regulation, as though it is public domain land, is an
unconstitutional infringementon
State and local police power to regulate its citizenry for the
benefit of all. It is also a violation of
the equal footing doctrine and the principlesof federalism
outlined by the Supreme Court in
Hawaii v. Office ofHawaiian Affairs, and embodied in the
Constitution. The ROD is an
overreach of the limited authority Congress gave to the
Secretary under the IRA to restore allotted
reservation land or to create reservation from public domain
land. The DOI and Mr. Laverdure
acted outside the scope of the Secretary's authority and beyond
the Secretary's discretion that
they had the authority to take private fee lands in trust for
the lone Indians.
Defendants have no authorityto create new federal public domain
land or federal Indian
reservation land in the State ofCalifornia. California, like all
other states, retains its regulatory
jurisdiction over all lands not specifically retained or
reserved as public domain land of the
United States within its exterior boundaries including the right
to regulate and tax lands that have
been conveyed into private ownership. Defendants attempt to
create a reservation for the lone
Indians in the State ofCalifornia on privately held lands,
currently regulated by the State and
local governments, byaccepting any privately owned lands into
federal trust status pursuant to 25
U.S.C. 465 for the lone Indians is unconstitutional and is
contrary to the principles of
federalism summarized in the Supreme Court's decision in Hawaii
v. Office ofHawaiian Affairs,
129 S Ct. 1436 (2009). Furthermore atribe does not have the
authority to unilaterally create a
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reservation from fee owned lands. City ofSherrill v. Oneida
Indian Nation, 544 U. S. 197 (2005).
See alsoSumma Corporation v. California exrel. State Lands
Commission 467 U.S. 1231 (1984)
The creation of a reservation in favor of the lone Indians is
also contrary to the 1864 Act
of Congress which specifically stated that no more than four
reservations could be established
within the State ofCalifornia (13 Stat. 39). And it is contrary
to the Treaty ofGuadalupe Hidalgo
and the Act of 1851 - which confirmed private titles, separate
from public domain lands, of lands
previously conveyed into private ownership by Spain or
Mexico.
After California became a sovereign State of the United States
in 1850, on an equal
footing with all other States, it received regulatory and police
power jurisdiction over all property
within the State - including federally owned public domain. But,
until public domain land is
conveyed to the State or into private ownership, the United
States retains authority over public
domain lands. Kleppe v. New Mexico429 U.S. 873 (1976). Thus the
United States has the
authority, in some circumstances, to create an Indian
reservation from retained public domain
lands. By definition, an Indian reservation is created by the
Secretaryor an authorized federal
land officer executing an order withdrawing specific parcels
from public domain land and
reserving it for the specific purpose of the withdrawal order.
See US. v. Midwest Oil Co. 236
U.S. 459 (1915).
After public domain property isconveyed to the State or into
private ownership, the
United States no longer has authority to create an Indian
reservation over non-public domain
lands. In the case ofHawaii v. Office ofHawaiian Affairs, 129 S
Ct. 1436 (2009), a unanimous
Supreme Court held that after federal public domain lands pass
out of federal ownership toa
State, they cannot be restored to federal jurisdiction by a
federal act that purports to change the
nature of the original grant to the State. As aconsequence, once
public domain land is conveyed
by the United States to aState, or into private ownership
subject to the police and taxing power of17
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the State, itcannot be returned to public domain status as part
of a FTT transfer under the IRA.
The Supreme Court concluded that "itwould raise grave
constitutional concerns" ifCongress
sought to "cloud Hawaii's title to itssovereign lands" after it
had joined theUnion. "Wehave
emphasized thatCongress cannot, afterstatehood, reserve or
convey...lands that have already
been bestowed upon a state..."Hawaii v. Office ofHawaiian
Affairs, supra.
Likewise here, the Statehas had regulatory authority over the
Parcels since 1850. The
DOI and Mr. Laverdure do not have the authority to create a
reservation or Indian trust land free
from State regulation that has been imposed on the Parcels from
Statehood. It would raise"grave
constitutional concerns" if DOI is allowed "to cloud"
California's sovereign right to regulate and
exercise jurisdiction over land within its boundariesafter
joining the Union. The DOI "cannot,
after statehood, reserve or convey...lands that have already
been bestowed upon a state
4. The lone Indians are not a "restored tribe" and the Parcels
are not "restored lands'as these terms are used in the Indian
Gaming Regulatory Act; the lone Indians andParcels are not eligible
for gaming under IGRA.
The trust acquisition proposed by the Secretary in the ROD is
intended to facilitate the
construction of a major gambling casino, hotel and related
facilities on the Parcels. But the
Parcels are not eligible for Indian gaming. The Indian Gaming
Regulatory Act (IGRA) prohibits
Indian gaming on land acquired after 1988 unless oneof the
statute's narrow exceptions applies.
(29U.S.C. 2701-2721). Since, under the ROD, the Parcels will be
acquired in trust for the
lone Indians after 1988, gaming is prohibited on the Parcel,
unless oneof the IGRA exceptions
applies. The IGRA exceptions do not apply.
TheDOI"s determination in the ROD that the Parcel qualified as
Indian lands eligible for
gaming under the IGRA "restored lands for a restored tribe"
exception lacks substantial
justification and is inconsistent with the facts and prior
positions ofthe DOI. The lone Indians
are not a "restored tribe"and the Parcels are not"restored
lands' as these terms are used in the
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IGRA. It is also beyond the authority of the Secretary tomake
this determination. IGRA requires
theNational Indian Gaming Commission (NIGC), not the Secretary,
to make these
determinations. The DOI's determination in the ROD that the lone
Indians are a "restored tribe"
and the Parcel is "restored lands" under IGRA was an abuse of
discretion and is arbitrary,
capricious and contraryto the law. It should be vacated by this
Court.
The DOI's determination in the ROD, and the 2006 Artman opinion
it revived, that the
Parcels are restored Indian Lands for gaming purposes is
contrary to the facts and IGRA and it is
contraryto previous DOI opinions and previousDOI representations
made in other court cases.
See MuwekmaOhlone Tribe v. Salazar (USDC D.C. No. 03-1231
(RBW).
The lone Indians are not a "restored" tribe for the purpose of
IGRA. They were never
federally recognized nor terminated. Therefore they cannot be
restored to federal recognition. .
Nor are the Parcels restored lands. The lone Indians are not
landless. They have a potential
ownership interest: (1) in 40 acres near lone; (2) property in
the City of lone, (3) commercial
property in the City of Plymouth, and (4) five parcels
totaling47 acres adjacent to Plymouth.
Based on this unlawful determination the Secretary approved the
FTT transfer of the
Parcels under the IRA. And the NIGC and its officials,
apparently, pursuant to the MOA with the
DOI, improperly accepted the FTT transfer asa"restored lands"
determination for IGRA
purposes. As aresult of this unlawful determination, if the
Secretary's approval is not vacated,
and the NIGC accepts it as a restored lands determination for
IGRA purposes, the lone Indians
may beable to build aClass III casino on the Parcels which will
cause major environmental
impacts in and around the City of Plymouth and Amador County and
harm to the citizens of the
City of Plymouth and Amador County.
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PLAINTIFFS' MEMORANDUM OF POINTS ANDAUTHORITIES INOPPOSITION
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5. The Defendants failed to complywith NEPAbeforeapproving the
fee-to transfer inthe ROD and approving the construction of a major
casino on the Parcels.
The Secretary, DOI, BIA and NIGC failed to consider and/or take
a "hard look" at the
environmental and socio-economic impacts of his proposed action
as required by theNational
Environmental Policy Act. (NEPA; 42 U.S.C. 4321 et seq.) "Hard
look"means that such
actions should not cause undue damage to the human and natural
environment of the designated
and surroundingareas. The proposed action in the ROD is contrary
to law because its
implementation would cause permanent and irreparable harm to the
environment, including the
human environment as defined inNEPA; it would intrude upon the
will of the people of the
County ofAmador who voted 84.6% against permitting another
casino in the county and
community. It would create permanent and perpetual regulatory,
jurisdictional and tax revenue
problems for the State and local governments, and would
contribute to the ongoing economic
detriment of the State and local economies.
The Secretary, DOI and BIAcompletelyfailed to consider or
adequately consider manyof
these impacts. The Secretary, DOI, and BIA also failed to applya
fair and unbiased analysis of
the jurisdictional and human impacts caused by the RODas
required byNEPA. The Final
Environmental Impact Statement (FEIS) wrongfully assumed that
non-Indian interests did not
require equal consideration against the interests of the lone
Indians when considering the
environmental impacts. The Secretary, DOI and BIA ignored or
failed to fully consider or
adequately address the traffic, water quality, airquality and
other negative impacts of the
proposed casino and related facilities in the FEIS. The NIGC
completely failed to study or
consider the environmental impacts of the proposal in
anEnvironmental Assessment and EIS as
required by NEPA with respect to its restored tribe and restored
lands determinations for the lone
Indians. The approval ofthe EIS for the FTT by the DOI, BIA and
Secretary should be vacated
and the EIS should be updated and recirculated for comment and
resubmitted for approval. And20
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the NIGC should be required to comply with NEPA prior to
considering and making the restored
tribe and restored lands determinations.
The Secretary's and DOI's actions inapproving the FTT transfer
and certifying the EIS,
and the NIGC's failure to prepare an EIS for its "restored
tribe" and "restored lands"
determinations, were in violation of the National Environmental
Policy Act (NEPA) 42 U.S.C.
4321 et. seq. And it's implementing regulations, 40 C.F.R. 1500
ET. seq.
The NEPA requires that "all agencies of the Federal Government
shall... include in every
recommendation or report on...major Federal actions
significantly affecting the quality of the
human environment, a detailed statement by the responsible
official." 42 U.S.C. 4332(2) (c).
The proposed casino project approved as partof the ROD has many
inherent well
documented negative impacts that threaten this small community
with among other things:
increase in traffic congestion and safety concerns on rural
roads in the area, increase in air
pollution, increase in water pollution, overuse of limited water
resources used by all residents in
the area fordrinking waterand irrigation and potential increases
in crime. Some of these impacts
were identified in the EIS; none were adequately considered,
mitigated or resolved.
The DOI, the BIA and the Secretary were required to take a "hard
look" at the
environmental consequences of the proposed action in the ROD.
This required the Secretary to:
(1) make a good faith effort to take environmental values into
account; (2) to provide an
environmental full disclosure to the members of the public and
(3) protect the integrity of the
decision making process by insuring that problems are not
ignored.
In this case it was not possible for the BIA to take a"hard" and
fair look at the
environmental impacts because the BIA only represents the
interests of the Indian tribe as those
interests are defined bythe Tribe submitting the fee to trust
application. Furthermore, the
inability for the BIA to be impartial, when evaluating the
impacts of the FTT transfer and a21
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related casino project, is compounded by the MOU between the BIA
and the tribes to facilitate
FTT transfers. Despite these facts, under the Departmental
Manual of the BIA for the application
ofNEPA in the FTT process, theDOI allows the BIA, which
processes, administers, and
approves the tribes FTT application to actas"lead agency" for
the completion ofNEPA
documentation . This presents an inherent conflict of interest
in terms of producing a fair and
unbiased report which takes into consideration the needsof the
surrounding communities.
The regulatory and cumulative jurisdictional impacts of removing
hundreds ofacres from
the sovereign control of state and local governments have not
been adequately addressed in the
FEIS. The FEIS also fails to provide support for the ROD's
conclusion that 228.04 acres in trust
is necessary to satisfy the tribe's goal of self-determination
and other similar needs of the tribe.
And the FEIS fails to adequatelyassess the impact this
determination has on the local
communities which is required by 25 C.F.R. 151.10 (e) and the
NEPA analysis.
The FEIS fails to adequately address the concerns of the local
communities. The ROD
does not adequately address the lone Band's application in terms
of the factors deemed partof the
"justifiable expectations" of the local non-Indian residents or
state and local governments
identified in the Sherrill decision as disruptive.
The failure of the DOI and the Secretary to take a "hard" look
at, and adequately address,
the adverse environmental and socio-economic impacts ofall the
anticipated impact of the project
approved in the ROD isarbitrary, capricious, an abuse of
discretion, and otherwise not in
accordance with law. Furthermore, the Secretary's decision to
change his position by approving
an EIS, a restored lands opinion and project that he previously
rejected in 2009 is arbitrary,
capricious, an abuse of discretion, and otherwise not in
accordance with law. 5U.S.C. 706.
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6. Plaintiffs have standing to bring this lawsuit to protect
their community from theadverse impacts of the fee-to-trust
transfer and the construction of a casino.Plaintiffs have standing
to protect the principle of federalism.
The Supreme Court has held that individual or citizen groups may
challenge a law or a
governmental actions on that basis that it contravenes the
principals of federalism, Bond v,
United States,\3\ S.Ct. 2355 (2011). Plaintiffs have standing to
challenge the Secretary's
attempt to remove land from State and local jurisdiction and
give it to the lone Indians on the
basis that it violates equal protection and the principles of
federalism.
Furthermore the Federal Defendants' contention that the
Plaintiffs lack standing in this
case is completely without merit in light of the 2012 Supreme
Court decision inMatch-Be-Nash-
She-Wish Band ofPottawatomi Indians v. Patchak, 132 S.Ct. 2199
(2012) ("Patchak"). In that
case, David Patchak brought an action under the APA alleging
that the Department of Interior
lacked the authority to acquire property in trust for an Indian
tribe, known as the Match-Be-Nash-
She-Wish Band of Pottawatomi Indians, because the tribe was not
a federally recognized tribe in
1934 when the IRA was enacted. Carcieri v. Salazar, 555 U.S. 379
(2009). The tribe was
formally recognized in 1999. In 2005, in response to a
fee-to-trust application by the tribe to
acquire land for gaming purposes, the DOI announced that it
would take land into trust for the
tribe to constructa casino. Mr. Patchak initiated litigation
under the APA alleging that taking
land into trust for Indian gaming"will cause him economic,
environmental, and aesthetic harm"
as a property ownernear a casino. Patchak, supra. 132 S.Ct. at
2203 & 2210.
Plaintiffs' interest in the environmental and economic
well-being of Plymouth, Amador
County and the State ofCalifornia are identical toMr. Patchak
and among the interests tobe
considered under 25C.F.R. 151.10(0, 151.10 (h) before land is
placed into trust. See also
Preservation ofLos Olivos v. Department ofInterior, 635
F.Supp.2d 1070 (CD Cal. 20080
Community group had standing to challenge a fee-to-trust.
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PLAINTIFFS' MEMORANDUM OFPOINTS ANDAUTHORITIES INOPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT (CaseNo. 2:12-cv-01748
TLN CMK)
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Case 2:12-cv-01748-TLN-CMK Document 93 Filed 02/17/15 Page 24 of
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CONCLUSION
For the forgoing reasons, and based on thePlaintiffs' Statement
ofUndisputed Facts
submitted with this opposition, Plaintiffs request that the
Defendants' motions for summary
judgment on Plaintiffs' second, third, fourth and fifth claims
for relief be denied and that, instead,
summary judgment on those claims be entered in Plaintiffs'
favor. Fed. R. Civ. Proc. 56(0-
Dated: February 17,2016
Respectfully Submitted,
/s/Kenneth R. WilliamsKENNETH R. WILLIAMSAttorney for
PlaintiffsNo Casino in Plymouth andCitizensEqual RightsAlliance
24
PLAINTIFFS' MEMORANDUM OF POINTSAND AUTHORITIESIN OPPOSITION
TODEFENDANTS' MOTIONS FORSUMMARY JUDGMENT(Case No.
2:12-cv-01748TLNCMK)