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City, tribe now await federal judge's decision

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Posted: Wednesday, February 23, 2011 11:00 pm | Updated: 10:22 am, Fri Mar 4, 2011.

In a federal building last Thursday, there was standing room only for a hearing in federal district Judge David Campbell's sixth-floor courtroom. The court case challenges the U.S. Department of Interior's decision to grant the Tohono O'odham request to create a reservation near 95th and Northern avenues.

Attorneys for each side, City of Glendale and Gila River Indian Community v. DOI, was given 40 minutes to present their case with a five-minute rebuttal.

James Tuite, attorney representing GRIC, spoke for about 20 minutes, while Audrey Moog, representing the City of Glendale, took the rest of the allotted time.

Kristofer Swanson took the lead for the DOI with Seth Waxman, chief counsel for the Nation, giving comments at the end of their 40-minute allotment.

What most of the arguments on both sides focused on were corporate limits, city limits, or city boundaries, and an interpretation of the Gila Bend Reservation Lands Replacement Act of 1986, which gave the Nation the authority to purchase land outside its borders (in Pima, Pinal or Maricopa counties only) for economic development.

Moog made the argument that Parcel 2 of the Tohono O'odham's land at 95th and Northern avenues, which was given approval for reservation status by the Department of Interior in July 2010, is actually enclosed by the City of Glendale, and is within the land-use planning area of Glendale.

Moog said the Nation purchased the land under another name in 2003. Meanwhile, Moog said, the City of Glendale spent "millions of dollars" on roadways, traffic lights, a new fire station and other improvements in the area. She said a city has to consider "zillions of issues" for its planning area.

She said the statute regarding the Nation's authority to purchase the land is ambiguous. She said DOI made a decision that the statute regarding the Nation's authority to purchase the land had "plain meaning."

Campbell said, "I apply Chevron deference and if the agency has made a decision, I conclude it is made plain."

Moog said, "And if you make Chevron deference, it may mean the agency's plain meaning is not plain."

Let's stop right here. Explain "Chevron deference."

* Deference to Administrative Interpretations (US Chevron deference)

- If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This Chevron deference rule was formulated in the United States by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Moog argued for the sovereignty of states, saying the Nation wants sovereign control and wants to take it from the state.

"That's intolerable," Moog said.

She said Indian commerce law has to stop (where state sovereignty is). She said the essence is control over territory.

Campbell grilled both sides on the corporate city limits/boundaries issue. He asked Swanson if Swaziland was within South Africa, and Swanson replied that although it was bordered on all sides by South Africa, it was not part of the jurisdiction/territory of South Africa.

Campbell said even if Swanson's interpretation is accepted, is Parcel 2 within the corporate limits of the City of Glendale?

Swanson said he agreed Parcel 2 was within the City of Glendale, but not within its corporate limits.

Swanson went on to cite procedural policy when asked whether gaming was considered in DOI Secretary Larry Echohawk's decision. He said land use was not considered and it does not exist in regulations of the National Gaming Regulatory Act.

"It also doesn't exist in policy documents," Swanson said, adding that the memo was signed by the Solicitor General, not Echohawk.

"Will the DOI ever make a decision about Parcel 2?" Campbell asked.

Swanson said the tribe has to have an ordinance. Before a gaming operation, 120 days notice has to be given to the DOI for a license and a managing contract must be in place. Swanson said the state is also involved.

Campbell asked if the Nation gives 120-day notice and manages itself and the DOI does not respond, can it go ahead and operate gaming? He also asked if people "on this side" would have input.

Campbell also asked if perhaps revenues would go down at other casinos if this one opened. Swanson said that may or may not be.

When Waxman made his presentation, he made it clear that the gaming compacts with the state require a statement from the state that a casino is under compliance. He also made the case for the county island where Parcel 2 is located is not within the corporate limits of the City of Glendale. He referred to South Tucson, which is completely surrounded by the City of Tucson.

Waxman said the Gila Bend Act permits the Tohono O'odham people the right to purchase a precise amount of land which will have particular legal status. Only that land can be taken into trust; the land has no reserve water rights; and the U.S. is obligated to provide water under Central Arizona Project. Under the act, the Nation can purchase up to 9,880 acres to replace what was lost when the Painted Rock Dam was built on the Gila River.

Under the stipulations outlined in Proposition 202, which was approved by Arizona voters, the Tohono O'odham Nation is allowed to build another casino.

Campbell said he would have a decision shortly, within a few weeks.

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