St. Croix Chippewa v. Babbitt, Bruce C. , 214 F.3d 941 ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1137
Sokaogon Chippewa Community, Mole Lake Band
of Lake Superior Chippewa; Lac Courte Oreilles
Band of Lake Superior Chippewa Indians
of Wisconsin, et al.,
Plaintiffs-Appellees,
v.
Bruce E. Babbitt, Secretary, United States
Department of the Interior, Michael J. Anderson,
Deputy Assistant Secretary, United States
Department of the Interior, et al.,
Defendants-Appellees,
Appeal of St. Croix Chippewa Indians of Wisconsin,
Proposed Intervenor-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 95-C-0659-C--Barbara B. Crabb, Judge.
Argued April 11, 2000--Decided June 6, 2000
Before Manion, Diane P. Wood, and Evans, Circuit
Judges.
Diane P. Wood, Circuit Judge. The lucky winners
at blackjack, baccarat, twenty-one, and the slot
machines are not the only ones who see the
prospect of great wealth flowing from casinos.
Even more so (and even more reliably), wealth
comes to those who own and operate gambling
establishments. Casino gambling has become a
major enterprise for many Native American groups,
as Congress has paved the way for their entry
into that business. This case pits one group of
Indian tribes who hope to open a new gambling
facility against another tribe that currently
runs another gambling facility nearby. The narrow
question before us is whether the district court
erred when it refused to permit the St. Croix
Chippewa Indians of Wisconsin ("the St. Croix")
to intervene, either of right or by permission,
in litigation between the Sokaogon Chippewa
Community Mole Lake Band of Lake Superior
Chippewa ("the Sokaogon"), the Lac Courte
Oreilles Band of Lake Superior Chippewa Indians
("the LCO"), and the Red Cliff Band of Lake
Superior Chippewa Indians ("the Red Cliff"), and
the U.S. Department of the Interior. We conclude
that it did not and we therefore affirm the
district court’s decision.
I
The story began with the 1994 decision of the
Sokaogon, the Red Cliff, and the LCO to form a
partnership under the name "Four Feathers," for
the purpose of acquiring a struggling greyhound
racing track outside of Hudson, Wisconsin, and
converting the track into a casino gaming
facility. (The fourth "feather" was Fred
Havenick, a private businessman with a financial
interest in the greyhound track.) Hoping to take
the property in trust, the Four Feathers
partnership submitted a joint application to the
Department of Interior under the Indian Gaming
Regulatory Act ("IGRA"), 25 U.S.C. sec.sec. 2701
et seq. The St. Croix, which has its reservation
in northwest Wisconsin, opposed and continues to
oppose the proposed casino gaming facility. It
predicts that the Four Feathers casino will have
a detrimental impact on the gaming revenues it
derives from the two casino gaming facilities it
currently operates (one in Turtle Lake and the
other in Danbury, Wisconsin), and that the loss
of revenue will in turn harm the quality of life
on its reservation.
Under Section 5 of the Indian Reorganization
Act of 1934, 25 U.S.C. sec. 465, the Secretary of
the Interior has broad authority to acquire
property in trust for Indian tribes./1 Using a
type of double-negative, IGRA restricts this
broad grant of authority by prohibiting the
acquisition of trust land for gaming purposes,
but then sec. 2719(b) (1)(A) of the Act
establishes an exception to the exception. In
order to be able to acquire land in trust for
gaming purposes, tribes must show that "[1] a
gaming establishment on newly acquired lands
would be in the best interest of the Indian tribe
and its members, and [2] [it] would not be
detrimental to the surrounding community." 25
U.S.C. sec. 2719(b)(1)(A). To determine whether
applicant tribes have satisfied this test, the
IGRA requires the Secretary to consult with "the
Indian tribe and appropriate State, and local
officials, including officials of other nearby
Indian tribes." Id. Even if the Secretary decides
to grant the application, there is still one more
step in the process. The Governor of the state in
which the proposed gaming activity will be
conducted must also concur in the Secretary’s
determination, id., and only then can the
facility open.
On March 4, 1994, Four Feathers filed an
application with the Department of the Interior’s
Minneapolis Area Office asking the Department to
take into trust the Hudson greyhound racing
track, so that Four Feathers could convert it
into a casino gaming facility. Under Department
of Interior internal procedures, the Department’s
Area Office is responsible for making the initial
determination of whether an applicant tribe has
met the requirements of sec. 2719(b). See
Checklist for Acquisitions for Gaming Purposes.
The Minneapolis Area Office accordingly consulted
with municipalities, citizens, and others in the
communities surrounding the site of the proposed
casino gaming facility. The St. Croix urged the
Area Office to recommend denial of the
application because of the negative effect the
proposed casino would have on the revenues of the
St. Croix’s existing casinos. In a report dated
November 14, 1994, the Minneapolis Office advised
the Bureau of Indian Affairs ("BIA") that in its
view the applicant tribes (that is, the Four
Feathers) had satisfied the requirements of IGRA
sec. 2719 and that their application should be
approved.
At that point, at least in hindsight, things
took a significant detour. Instead of ruling on
the basis of the record that had been compiled,
BIA officials agreed in early 1995 to meet with
federal elected officials from Minnesota and
officials from several Indian tribes, including
the St. Croix. These officials expressed their
concern about the impact of the proposed new
casino on revenues earned by existing Indian
casinos operating in the Hudson, Wisconsin area.
As a result of the meeting, BIA agreed to extend
the comment period for the Four Feathers
application until April 30, 1995. The St. Croix
and several others interested in the proposed
casino project submitted comments by the new
deadline.
On July 14, 1995, Interior denied the Four
Feathers application. The letter informing Four
Feathers of the decision indicated that it had
failed to demonstrate that the new casino would
not have a detrimental impact on the surrounding
community. Outraged by Interior’s apparent
about-face in response to ex parte political
pressure, Four Feathers filed this suit under the
Administrative Procedure Act, 5 U.S.C. sec.sec.
701 et seq., on September 15, 1995. Four
Feathers’s complaint alleged that Interior’s
denial of its application was arbitrary and
capricious and violated applicable law,
regulations, and internal policies and
procedures, and it asked that the decision be
vacated and the application remanded to Interior
for reconsideration. In time, these allegations
of impropriety created a political firestorm that
included Congressional hearings and the
appointment of an Independent Counsel to
investigate alleged misdeeds of White House and
Department of the Interior officials. Once the
Independent Counsel was appointed, the district
court stayed the proceedings until the completion
of the investigation.
There matters stood in the litigation until
March 12, 1999, when the Department filed with
the court a letter it had received from the
Independent Counsel’s Office stating that the
Office supported mediation or settlement talks to
resolve the civil suit. The parties took up the
suggestion, and in early 1999, they selected a
mediator. At that point, the existence of the
settlement discussions became a matter of record;
thereafter, newspaper articles about the progress
of the case appeared on occasion. Just before the
negotiations drew to a close, the St. Croix filed
on November 26, 1999, an emergency motion to
intervene in the action as a party defendant.
Five days later, with the motion still pending,
the parties filed with the district court an
executed settlement agreement with a stipulation
and proposed order of dismissal.
In the proposed Settlement Agreement, Interior
agrees to withdraw its July 14, 1995, decision
and to pick up where it had left off with its
administrative review of the application. The
Settlement Agreement sets out certain procedures
that are to be followed during the renewed
administrative review, including the following:
The determination on the issue of detriment to
the surrounding community under 25 U.S.C. sec.
2719(b) will be based upon facts set forth in the
administrative record as it existed on July 14,
1995, as supplemented only by: (1) any additional
information submitted as a part of consultations
between the plaintiff Tribes and Interior as
provided for herein; and (2) the supplemental
documentation submitted in accordance with the
provisions of paragraph 10 of this Settlement
Agreement.
* * *
The mere fact of competition by the proposed
casino with casinos of other Tribes shall not be
determinative in Interior’s decisionmaking.
The district court denied the motion on
December 6, and, in the same order, terminated
the litigation by executing a Stipulation of
Dismissal. The court then denied St. Croix’s
motion for reconsideration on January 3, 2000.
II
Although in a broader sense this has the look
and feel of an interlocutory appeal, it is not
from the point of view of the putative
intervenor, the St. Croix. As to it, the district
court’s ruling rejecting its effort to intervene
was a final judgment, and its appeal is properly
before us under 28 U.S.C. sec. 1291. See Nissei
Sangyo America, Ltd. v. United States, 31 F.3d
435, 438 (7th Cir. 1994). Because Interior is now
reconsidering the Four Feathers application, some
might wonder why the St. Croix suit is not moot.
The reason it is not, in our opinion, is because
Interior is reconsidering the application under
the procedures it agreed to follow in the
Settlement Agreement. It is precisely that
agreement and those procedures that are the
target of the St. Croix attack; had Interior
begun a fresh proceeding with respect to this
license, the St. Croix would have been satisfied
and the case would have ended. We must therefore
consider the merits of the two theories under
which the St. Croix sought to become part of the
Four Feathers litigation.
A. Intervention as of right
The St. Croix first claim that it was entitled
to intervene of right, under Fed. R. Civ. P.
24(a). Insofar as this assertion rests on the
nature of the interest the tribe asserts in the
litigation, our review is de novo. People Who
Care v. Rockford Bd. of Educ., 68 F.3d 172, 175
(7th Cir. 1995). Even applications under Rule
24(a) must, however, be timely, and we review a
district court’s decision that a motion to
intervene was untimely only for abuse of
discretion. Id.
Apart from the timeliness requirement, to which
we turn later, Rule 24 establishes three
requirements for someone seeking to intervene of
right: (1) the applicant must claim an interest
relating to the property or transaction which is
the subject of the action, (2) the applicant must
be so situated that the disposition of the action
may as a practical matter impair or impede the
applicant’s ability to protect that interest, and
(3) existing parties must not be adequate
representatives of the applicant’s interest. See
Fed. R. Civ. P. 24(a); 7C Wright, Miller & Kane,
sec. 1908 (2d ed. 1986). In addition, at some
fundamental level the proposed intervenor must
have a stake in the litigation. Some disagreement
remains among the circuits about how Article III
standing rules intersect with the requirements
for Rule 24 intervention. Compare, e.g., Ruiz v.
Estelle, 161 F.3d 814, 830 (5th Cir. 1998)
(holding Article III standing not required for
intervention), cert. denied 526 U.S. 1158 (1999),
with Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th
Cir. 1996) (holding Article III standing required
for intervention); see also Rio Grande Pipeline
Co. v. FERC, 178 F.3d 533, 538 (D.C. Cir. 1999)
(describing circuit split and citing cases). This
remains a question that the Supreme Court has not
resolved. See Diamond v. Charles, 476 U.S. 54,
68-69 (1986); see generally 7C Wright, Miller &
Kane, sec. 1908 (1999 supp.). From a pragmatic
standpoint, this court has observed that "[a]ny
interest of such magnitude [as to support Rule
24(a) intervention of right] is sufficient to
satisfy the Article III standing requirement as
well." Transamerica Ins. Co. v. South, 125 F.3d
392, 396 n.4 (7th Cir. 1997). But see United
States v. 36.96 Acres of Land, 754 F.2d 855, 859
(7th Cir. 1985) (stating, before the Supreme
Court tightened up the requirements for Article
III standing in Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992), that intervention as of
right requires an interest greater than that
required for Article III standing). Because it is
enough here to decide whether the St. Croix has
satisfied the requirements of the rule, we do not
explore further what the outer boundaries of
standing to intervene might be.
Intervention of right will not be allowed
unless all requirements of the Rule are met. Wade
v. Goldschmidt, 673 F.2d 182, 185 n.4 (7th Cir.
1982). In the lay sense of the term there can be
little doubt that the St. Croix tribe is
"interested" in the outcome of the Department’s
consideration of the Four Feathers application.
Approval of the application will introduce a
competitor in the greater Twin Cities casino
gambling market, potentially leading to a
decrease in the profits of the St. Croix’s
casinos. Denial of the application will leave the
St. Croix’s casinos free of competition (at least
until another competitor decides to enter the
market). But not all interests give rise to a
right to sue, and the question here is whether
the St. Croix has a legally protectible interest
in fending off this unwelcome competition. If it
does have such an interest, then for purposes of
the second criterion we can assume that its
interest will be impeded as a practical matter.
Furthermore, we can assume here that none of the
present parties to the litigation is an adequate
representative for the St. Croix’s interest (even
though the government points out that in a
broader sense it represents the long-term
interests of all Native American groups). The
petition to intervene of right thus turns on the
first of these criteria: whether the St. Croix
has successfully alleged an interest in the
transaction that is the subject of the pending
lawsuit.
The "subject of the pending lawsuit," however,
is not the merit of the Four Feathers
application. From its inception, this lawsuit has
focused instead on the procedures the Department
used in making its 1995 determination. Like most
APA cases, it involves a claim that the
Department did not follow the prescribed
decisionmaking procedures in arriving at its
final decision. Indeed, in areas like this one,
where the agency is granted broad discretionary
authority, see 25 U.S.C. sec. 465 (authorizing
Secretary to acquire lands "in his discretion");
25 C.F.R. sec. 151.3(a) (providing Secretary
"may" acquire land), practically the only
cognizable complaint can be one directed to the
question whether the agency followed the
procedural constraints on the exercise of that
discretion, as prescribed by statute and
regulation. However hard it may be for the St.
Croix to show that it has an interest in the
ultimate outcome of the application process, here
it faces the even tougher job of showing that it
has a right to complain about the procedures the
agency is using.
The Four Feathers complaint asked for two
alternative remedies: either the grant of its
application or the vacation of the 1995 denial
and remand to the Department for further
consideration. The district court correctly
recognized that it could not compel the Secretary
to grant or deny the application, given the
discretionary nature of the decision. The most
the court could do was (in keeping with Four
Feathers’s second request for relief) to evaluate
the legality of the decisionmaking procedures
used and, if they deviated from those prescribed
by statute, declare the decision arbitrary and
capricious and send the issue back to the
Secretary for reconsideration under the
appropriate procedures.
The St. Croix is asserting only an indirect
interest in the outcome of this suit. If the
procedures Interior followed in 1995 were proper,
or if a different set of procedures had resulted
from the settlement, then perhaps it might be
able to defeat or to delay significantly the Four
Feathers casino. At the end of the day, however,
it recognizes that its interest in the new casino
lies behind all the procedural maneuvering. With
that in mind, it argues that three different
interests support its right to intervene.
First, the St. Croix contends that if the Four
Feathers application is granted, its own casino
operations will become less profitable. That
interest, however, does not resemble any that the
law normally protects. It is reminiscent instead
of the unsuccessful claim Pueblo Bowl-O-Mat made
in an antitrust challenge to Brunswick
Corporation’s acquisition of a competing bowling
alley. See Brunswick Corp. v. Pueblo Bowl-O-Mat,
Inc., 429 U.S. 477 (1977). Pueblo reasoned that
it was injured because the existence of
competition would lead to lower prices. The Court
did not take issue with that basic economic
proposition, but it did dismiss Pueblo’s claim on
the ground that it had failed to allege the kind
of injury for which the antitrust laws provide
redress. Id. at 487-89. Although the IGRA
requires the Secretary to consider the economic
impact of proposed gaming facilities on the
surrounding communities, it is hard to find
anything in that provision that suggests an
affirmative right for nearby tribes to be free
from economic competition.
We need not resolve the question whether this
interest is protectible, however, because there
is a deeper flaw with the St. Croix’s argument.
As the Secretary points out in his brief, any
detrimental impact from the proposed Four
Feathers casino on the St. Croix reservation’s
economy is pure speculation at this point. The
renewed administrative process required by the
Settlement Agreement has barely had time to
begin, and it is anyone’s guess what the
Secretary’s final decision will be. Moreover,
even if the Secretary approves the application,
the casino cannot be built until the Governor of
Wisconsin independently gives his approval. See
25 U.S.C. sec. 2719(b) (1)(A). Four Feathers must
then succeed in financing and building the casino
as well as gaining proper permits and licenses.
Finally, the Four Feathers casino must be
competitive. The St. Croix asks us to assume that
if and when the Four Feathers casino is built it
will necessarily destroy the St. Croix’s gaming
business. But as all businesspeople are acutely
aware, in a competitive market, success is never
sure. Maybe the Four Feathers casino will
dominate, or maybe it will be a flop. Perhaps
people will like the geographical advantage of
the Four Feathers casino, which would be an easy
drive from the Twin Cities, but for some a more
bucolic getaway may be preferable. It is far too
early to tell. Even if the St. Croix had some
interest in the location of its competitors
(rather like the interests asserted in various
automobile dealer location statutes, see, e.g.,
Conn. Gen. Stat. sec. 42-133dd; 10 Me. Rev. Stat.
Ann. sec. 1174-A), any effect on that interest
from the Four Feathers project is too speculative
to support intervention in this suit.
Second, the St. Croix asserts a generalized
interest in the legality of the procedures used
by the Department to conduct its review. That is,
the St. Croix contends that the review procedures
laid out in the Settlement Agreement are
unlawful, because they do not require the
Department to perform the environmental
assessments required under the National
Environmental Policy Act ("NEPA"), 42 U.S.C. sec.
4321 et seq. In asserting this interest, the
tribe claims the common interest of all citizens
in ensuring that their government agencies follow
the law. As countless cases have held, however,
such a generalized interest is insufficient to
support standing, let alone intervention. If it
did, the federal courts would be required to
allow anyone with an interest--however broad or
universal--to intervene in any lawsuit in which
the government is a party. To claim such an
interest, the St. Croix must demonstrate (or at
least claim) that it specifically would be
adversely affected in some way, shape, or form,
by the Department’s alleged failure to follow
applicable environmental statutes. This is not an
impossible task. For example, if the failure to
go through environmental procedures would have a
detrimental impact on the St. Croix’s water
supply, the tribe would have a sufficiently
specific interest for it to be cognizable. See
Hill v. Boy, 144 F.3d 1446, 1449-50 (11th Cir.
1998); Dubois v. United States Department of
Agriculture, 102 F.3d 1273, 1282-83 (1st Cir.
1996). But the St. Croix has alleged no such
particularized interest. More importantly, the
St. Croix does not argue that the Department’s
decision-making process in 1995 ignored
applicable environmental regulations or failed to
take the proposed casino’s environmental impact
into account. Instead, the tribe challenges only
the legality of the procedures adopted by the
parties in the Settlement Agreement, ignoring the
fact that the Agreement specifically preserves
its right to participate in the new NEPA process,
at which point the tribe will be able to call to
the Department’s attention any current
environmental issues or eventually to challenge
any failure to follow the statute.
Last, the St. Croix alleges that the Settlement
Agreement violates the consultation procedures
laid out in the IGRA. The St. Croix contends
that, by agreeing to turn the clock back to 1995
and base the decision to grant or deny the
application entirely on the record as it existed
at that time, the Settlement Agreement violates
the tribe’s right to provide comments on the
casino project. The interest the St. Croix
asserts is not encompassed in this lawsuit,
however, because it does not contend that it was
unlawfully blocked from providing comments in
1995. Rather, its complaint is purely forward-
looking.
The St. Croix wants to intervene because it
does not like the Settlement Agreement. The tribe
believes that the terms of the Settlement
Agreement violate statutes and regulations and
unlawfully cut it out of the reconsideration of
the Four Feathers application. The St. Croix,
however, cannot use alleged legal problems with
the Settlement Agreement to bootstrap itself into
this litigation. That the St. Croix waited until
settlement was imminent strongly suggests that
the tribe was not interested in intervening in
the litigation but in blocking a settlement
between the parties--or, at a minimum, this
settlement. If the St. Croix wanted to
participate in the litigation, it should have
moved to intervene when the suit was filed, or
shortly thereafter. Likewise, if the St. Croix
was concerned about settlement negotiations not
taking its interests into account, it should have
moved to intervene at such a time when it would
have been able to participate in them. As it now
stands, intervention by the St. Croix serves no
conceivable purpose other than to block a
settlement agreement that it does not like.
The St. Croix’s final argument is that if we do
not allow it to intervene in this litigation, it
will be forever barred from challenging the
Settlement Agreement. The St. Croix contends that
the district court’s approval of the Settlement
Agreement is equivalent to a judicial
determination that the terms of the Settlement
Agreement are lawful-- that they comply with all
applicable statutes and regulations. The district
court’s approval of the Settlement Agreement,
however, is only binding between the parties to
it. If either party does not live up to its end
of the bargain, the other can ask the court to
enforce the Agreement’s terms. Others--like the
St. Croix--who are not parties to the Settlement
Agreement are not bound by its terms and are free
to challenge any administrative decisions that
emerge from the process. In essence, the St.
Croix believes that the Department and Four
Feathers have managed to resolve their dispute by
contracting around the rights and interests of
the St. Croix. This may or may not be true. If
the Settlement Agreement is unlawful, as the St.
Croix claims it is, it can bring a suit under the
APA challenging as arbitrary and capricious the
Secretary’s ultimate decision (assuming, of
course, it is then able to demonstrate the
necessary adverse interest).
B. Permissive intervention
Permissive intervention is allowed under Rule
24(b), once again upon timely application, "when
an applicant’s claim or defense and the main
action have a question of law or fact in common."
Permissive intervention under Rule 24(b) is
wholly discretionary and will be reversed only
for abuse of discretion. Keith v. Daley, 764 F.2d
1265, 1272 (7th Cir. 1985). The district court
denied St. Croix’s motion to intervene under Rule
24(b) for a reason that applied with equal force
to the motion under Rule 24(a); in each instance,
the court found the motion untimely.
"The purpose of the [timeliness] requirement is
to prevent a tardy intervenor from derailing a
lawsuit within sight of the terminal. As soon as
a prospective intervenor knows or has reason to
know that his interests might be adversely
affected by the outcome of the litigation he must
move promptly to intervene." United States v.
South Bend Community Sch. Corp., 710 F.2d 394,
396 (7th Cir. 1983), quoted in United States v.
City of Chicago, 870 F.2d 1256, 1263 (7th Cir.
1989). We consider the following factors to
determine whether a motion is timely: (1) the
length of time the intervenor knew or should have
known of his interest in the case; (2) the
prejudice caused to the original parties by the
delay; (3) the prejudice to the intervenor if the
motion is denied; (4) any other unusual
circumstances. Ragsdale v. Turnock, 941 F.2d 501,
504 (7th Cir. 1991), citing South v. Rowe, 759
F.2d 610, 612 (7th Cir. 1985).
In the district court and here on appeal, the
St. Croix argues that its motion was timely--
despite being filed five years after the initial
complaint--because it could not have expected the
outcome of the Settlement Agreement: first, that
the denial of the application would be vacated,
and second, that any settlement agreement would
be unlawful. That is, the St. Croix asserts that
it did not know its interests could be impaired
by the litigation until after it received the
Settlement Agreement.
The district court was well within the bounds
of reason to find these arguments unpersuasive.
From the moment Four Feathers filed its initial
complaint, the St. Croix knew that there were
only two possible outcomes of the litigation (and
any settlement talks): either Four Feathers would
cease trying to convince Interior to reconsider
its decision or Interior would agree to
reconsider its decision. The district court did
no more than rely on the obvious when it found
that the St. Croix had ample notice (five years)
that settlement was possible and ample
opportunity to request permission to intervene
before a settlement was reached. The St. Croix’s
case is therefore nothing like the one faced by
this court in City of Chicago, supra, where the
white female police officers who wanted to
intervene could not have anticipated that the new
procedures would discriminate against them. See
870 F.2d at 1263. The St. Croix has known all
along that its interests are directly pitted
against those of Four Feathers. If the St. Croix
wanted a voice in the litigation, it should have
asked the district court to allow it to intervene
much sooner. Had the St. Croix been a party all
along, of course, it would have had a seat at the
settlement table.
Relatedly, the district court found that
Interior and Four Feathers would be prejudiced by
St. Croix’s late motion to intervene, because the
parties had spent substantial time (nearly six
months), effort, and money in settlement
negotiations. To allow a tardy intervenor to
block the settlement agreement after all that
effort would result in the parties’ combined
efforts being wasted completely. The St. Croix
does not contest that the parties’ interests
would not be prejudiced by intervention at this
late date. Instead, the St. Croix focuses
exclusively on how the denial of its motion to
intervene would prejudice its own interests. This
is not, however, a one-sided equation, and the
district court would have been wrong to treat it
as such. Instead, the court correctly weighed the
interests on both sides and reasonably concluded
that the equities favored the settling parties.
On this point as well, the fact that the St.
Croix will have an opportunity to challenge any
eventual decision after it is made also weighs
against a finding of prejudice.
C. Sanctions
Finally, Four Feathers has moved that sanctions
be imposed against the St. Croix for its costs
and attorneys fees incurred in conjunction with
responding to the St. Croix’s motion for a stay
pending appeal. Although we have ruled against
the St. Croix in this opinion, this is not an
automatic warrant for sanctions. (It does mean,
however, that costs on appeal will be taxed
against the St. Croix. See Fed. R. App. P.
39(a)(2).) We decline to find that the appeal was
frivolous or in bad faith, see Jansen v. Aaron
Process Equip. Co., Inc., 207 F.3d 1001, 1005
(7th Cir. 2000); Perry v. Pogemiller, 16 F.3d
138, 139-40 (7th Cir. 1994), and we therefore
deny the motion for sanctions.
The judgment of the district court is AFFIRMED.
/1 Section 465 provides:
The Secretary of the Interior is hereby
authorized, in his discretion, to acquire,
through purchase, relinquishment, gift, exchange,
or assignment, any interest in lands, water
rights, or surface rights to lands, within or
without existing reservations, including trust or
otherwise restricted allotments, whether the
allottee be living or deceased, for the purpose
of providing land for Indians.
25 U.S.C. sec. 465.
The implementing regulations provide that the
Secretary may acquire land for a tribe in trust
status:
(1) when the property is located within the
exterior boundaries of the tribe’s reservation or
adjacent thereto, or within a tribal
consolidation area; or, (2) when the tribe
already owns an interest in the land or, (3) when
the Secretary determines that the acquisition of
the land is necessary to facilitate tribal
self-determination, economic development, or
Indian housing.
25 C.F.R. sec. 151.3(a), authorized by 25 U.S.C.
sec. 465.