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COUNTY ATTORNEY
MIAMI-DADE COUNTY, FLORIDA
SUITE 2810, 111 NORTHWEST FIRST STREET
MIAMI, FLORIDA 33128-1993
TELEPHONE: 305.375.5151
FAX: 305.375.5634
March 20,2015
VIA OVERNIGHT DELIVERY
United States Department of the Interior
Bureau of Indian Affairs
Eastern Regional Office
Attn: Johnna Blackhair, Acting Regional Director
545 Marriott Drive, Suite 700
Nashville, TN 37214
Re:
Miami-Dade County's Comments Concerning Fee-to-Trust Application to Acquire
the Golf Course in Kendale Lakes by Miccosukee Tribe of Indians of Florida, Inc.
(the "Tribe") on Remand from the Interior Board of Indian Appeals
Dear Director Blackhair:
This comment letter is submitted on behalf of Miami-Dade County, Florida (the
"County"), at the behest of the Office of Mayor Carlos Gimenez in response to your letter dated
January 16, 2015 inviting the County to furnish comments (the "2015 Comment Request")
concerning the Fee-to-Trust application (the "Application") submitted by the Tribe in 2003 to
acquire that certain land in Kendale Lakes described as Tracts A & B, Kendale Lakes North
Section I, Plat Book 93, Page 1 (the "Property").'. Thank you for granting the County's request
to extend the time within which to furnish comments to and including March 23, 2015. 2
The County respectfully requests that the Application be denied for the numerous reasons
set forth below, including, without limitation, that the proposed trust acquisition will result in
incurable jurisdictional conflicts that endanger the health, welfare and safety of the public,
including the residents of the Kendale Lakes community.3
For your reference, a copy of your 2015 Comment Request is enclosed in the Appendix submitted
contemporaneously herewith ("Appx.") at Tab 1.
2
By letter dated March 6, 2015, the Bureau, through Acting Regional Director Scott C. McNeely, granted
the County's request, made by letter dated February 5, 2015, to extend its comment period to and including March
23, 2015. See Appx. at Tab 2
3
In addition to furnishing its comments concerning the Application, the County also requests 30 days of
additional time to furnish further comments to supplement the comments furnished herein, if necessary, after receipt
of documents requested from the BIA through the Freedom of Information Act. The reason for the requested
extension is set forth under heading "I" below.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Johnna Blackhair, Acting Director
March 20,2015
TABLE OF CONTENTS
PAGE
I.
Request for Extension to Supplement the Comments Furnished Herein
II. Background of Appeal and Remand of Application after the
Board vacated the BIA's 2012 Decision
4
5
1. Tribe Submitted its Application in 2003
5
2. The County Appealed the BIA's 2012 Decision
5
3. Tribe Resubmitted its Application in 2014
6
4. Description of the Property Sought to be Acquired
7
III. The BIA Lacks Statutory Authority to Accept the Property into Trust
as Required by 25 C.F.R. § 151.10(a)
7
IV. The BIA's Decision on Remand must Adequately Consider the Criteria
Set Forth in 25 C.F.R. § 151.11 Governing "Off-Reservation" Acquisitions
9
1. The Tribe's purported Purpose and Use does not Withstand
Scrutiny under 25 C.F.R. § 151.10(b) and (c)
10
2. The County would suffer substantial negative impacts From
the Trust Acquisition and Subsequent Removal of the Land From the
Tax Rolls Under 25 C.F.R. § 151.10(e).
14
3. The Proposed Trust Acquisition will cause Significant Jurisdictional Problems
and Land Use Conflicts Under 25 C.F.R. § 151.10(f)
15
A. The Proposed Trust Acquisition Poses Immense Jurisdictional Conflicts
in the Delivery of Police Protection and Emergency Services
Under 25 C.F.C. § 151.10(f)
16
B. The Proposed Acquisition would cause Numerous Jurisdictional
and Land Use Conflicts with Zoning and Comprehensive Planning
Under 25 C.F.R. § 151.10(f)
20
(i) Drinking Water Supply
20
(ii) Protection Against Pollution from Hazardous Materials
21
(iii) Storm Water Drainage System
22
(iv) Comprehensive Development Master Plan
24
(v) CDMP Protects Endangered Species
24
(vi) Provision of Water and Sewer Services
25
(vii) Zoning Regulations
25
(viii) The 99-Year Use Restriction Covenant
25
C. The Potential for Gaming and the Resulting Jurisdictional Conflicts
Should be analyzed Under 25 C.F.R. § 151.10(f)
26
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 2
Johnna Biackhair, Acting Director
March 20, 2015
V. The Regional Director Failed to Comply With 25 C.F.R. § 151.10(h)
VII.
27
1. The Regional Director Failed To Comply With Part 516 of
the Interior Department Manual
27
2. The Regional Director Failed to Comply With Part 602 of
the Interior Department Manual
30
Defective Notice of Application on Remand
30
1. Local Residents Object to the Application
30
2. Lack of Notice to Local Authorities on Remand
31
CONCLUSION
32
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 3
Johnna Blackhair, Acting Director
March 20, 2015
I.
Request for Extension of Time to Supplement the Comments Furnished Herein
The County requests 30 days of additional time to furnish further comments to
supplement the comments furnished herein, if necessary, after the County receives the
documents it has requested from the Bureau of Indian Affairs ("BIA") under the Freedom of
Information Act ("FOIA").
The reason for the requested extension is that on January 22, 2015, the County requested
from the BIA a copy of the Application and any supporting documents under FOIA, pursuant to
the instructions provided in your 2015 Comment Request (the "County's FOIA Request"), but
the County has yet to receive a full and complete response to its request.4
Nearly two months after making its FOIA Request, the County received a response by
letter dated March 17, 2015. But the response is incomplete.5 Instead of receiving a complete
copy of the Application and its supporting documents, the County received a copy of a letter
from the Tribe dated March 12, 2014 (the "Tribe's 2014 Request") requesting that the Bureau
"continue the fee to trust application process."6 The Tribe's 2014 Request attaches a letter dated
February 5, 2003 from the Tribe, which itself references the Application, stating that the
Application is enclosed. Because the letter refers to the Application, it is unclear whether the
letter itself is the Application or whether a different document exists that constitutes the
Application. For purposes of the County's comments herein, the County will assume the letter
dated February 5, 2003 is itself the Application. Upon that assumption, it appears that the Tribe
has not amended or otherwise modified or supplemented the Application that it originally filed
more than 12 years ago.
According to the Application, the Tribe contemporaneously furnished seven other
documents to support its Application. Not a single one of the seven referenced documents was
produced in the BIA's FOIA Response.
By separate communication, the County is pursuing a further request for the seven
documents, as well as for other documents that were furnished in support of the Application all
of which the County originally requested—but has not received. The County, therefore,
respectfully requests an extension of time to supplement the comments it furnishes herein, if
necessary, after it obtains and examines the requested documents. The requested documents are
part of the record supporting the Application, which, presumably, the BIA will review as part of
its analysis of the Application on remand, as explained below.
4
See County's FOIA Request at Appx. Tab 3.
See copy of the entire set of documents received in response to the County's FOIA Request, totaling a mere
15 pages, (the "BIA's FOIA Response") at Appx. Tab 4.
6
See Tribe's 2014 Request at page 12 of BIA's FOIA Response at Appx. Tab 4.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 4
Johnna Blackhair, Acting Director
March 20, 2015
Background of Appeal and Remand of Application after the Board vacated the
BIA's 2012 Decision
1. Tribe Submitted its Application in 2003
On February 5, 2003, the Tribe submitted its Application, pursuant to section 465 of title
25 of the United States Code, 25 U.S.C. § 465, et seq., known as the Indian Reorganization Act
(the "IRA" or "Act"), seeking to place the Property into trust for its benefit.
The Property at issue is predominantly a golf course and country club (the "Golf
Course") that occupy 229 acres of land inside of a subdivision of the County known as Kendale
Lakes. The Property is located over 25 miles away from the Miccosukee Reserved Area (the
"MRA") and eight miles away from the Miccosukee Resort and Gaming Casino (the "Casino").
The Tribe has owned and operated the Golf Course in fee status since it purchased the Property
in 2001.
By letter dated August 8, 2003, the then-Eastern Regional Director, Franklin Keel, sought
comments on the Application (the "2003 Comment Request") from the Governor of Florida,
Mayor of the City of Miami, and the Board of County Commissioners of Miami-Dade County.'
The then-County Manager, George Burgess, objected to the Application by letter dated October
8, 2003 (the "County's 2003 Comment Letter"), raising numerous concerns regarding the impact
of the proposed trust acquisition's potential land use conflicts, jurisdictional problems, and
environmental concerns, among others.8 The State Attorney, Katherine Fernandez Rundle, also
objected by letter dated October 15, 2003 (the "State Attorney's 2003 Comment Letter").9
Thereafter, the Chairman of the Tribe, Billy Cypress, responded to the comments and objections
by letter dated October 29, 2003 (the "Tribe's 2003 Response").1°
No further contact was made with the County or the State Attorney regarding the
Application until almost a decade later, when on July 27, 2012, then-Acting Eastern Regional
Director, Randall Trickey, issued his Notice of Decision (the "2012 Decision") accepting the
Property into trust.11
2. The County Appealed the BIA's 2012 Decision
On August 23, 2012, the County commenced an appeal with the Interior Board of Indian
Appeals (the "Board") seeking to vacate the 2012 Decision on numerous grounds. The County
and the Tribe submitted opposing briefs, and on April 13, 2013, Dir. Trickey requested the Board
order a limited remand of two sections of the 2012 Decision, without vacating it. Specifically,
Dir. Trickey sought voluntary remand to "allow him to address compliance with the National
Environmental Policy Act ("NEPA") by `conduct[ing] additional detailed NEPA review' and to
address BIA's statutory authority to accept the land in trust within the framework set forth in
7
8
9
10
I
See BIA's 2003 Comment Request at Appx. Tab 5.
See County's 2003 Comment Letter at Appx. Tab 6.
See State Attorney's 2003 Comment Letter at Appx. Tab 7.
See Tribe's 2003 Response at Appx. Tab 8.
See 2012 Decision at Appx. Tab 9.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 5
Johnna Blackhair, Acting Director
March 20, 2015
Carcieri v. Salazar, 555 U.S.C. 379 (2009)." See Board's Order of July 10, 2013, vacating and
remanding 2012 Decision at 57 IBIA 192 (the "Remand Order").12
The County objected to a limited remand, and instead asked the Board to vacate the entire
2012 Decision. The Board agreed with the County and vacated the entire 2012 Decision, with
instructions to the BIA, acting through a regional director on remand ("Regional Director"), to
issue a new decision that "address[es] the arguments raised by the County on appeal."I3 57 IBIA
193. The Board noted in particular that the Regional Director's new decision address giving
"greater weight" to the County's concerns, based on the off-reservation character of the proposed
trust acquisition in accordance with 25 C.F.R. § 151.11(b). See 57 IBIA 193, n.2. While the
Board stated that it expressed no "views on the merits of the County's arguments," it did, in fact,
find it appropriate to vacate the 2012 Decision in order to enable the Regional Director to
reconsider exercising the BIA's discretion to place this Property into trust under the
circumstances, without constraining the BIA "from changing any and all portions of the decision,
including the final conclusion." See 57 IBIA 193.
The reason the Board vacated the 2012 Decision is because as stated by the Board,
"remand necessarily requires the Regional Director to reconsider the Decision in the context of,
and pursuant to, the 'additional detailed NEPA review," that the Regional Director admitted was
necessary. The Regional Director's Request for Remand stated, "the Regional Director has
determined that additional explanation and supplementation is necessary," and that further
agency evaluation is "expected to involve additional administrative record materials." Request
for Remand at 2. Importantly, the Board instructed the Regional Director that if he supplements
the record on remand, "he must give interested parties an opportunity to comment on the
supplemental materials." Remand Order at 57 IBIA 193, n.1 (emphasis added).
3. Tribe Resubmitted its Application in 2014
On March 14, 2014, the Tribe wrote to the BIA requesting the Application process
resume and the Regional Director issue a new decision on its 2003 Application.14 Over one year
has elapsed since the Tribe's request. If the BIA has conducted additional detailed NEPA review
involving supplemental materials that were not part of the administrative record on appeal, the
County has not been given an opportunity to comment on such supplemental materials.
Therefore, the County requests the Regional Director state affirmatively that supplemental
materials have or have not been considered. If supplemental materials have been considered, the
County requests such materials be furnished promptly with an opportunity for the County to
comment.
12
See Remand Order at Appx. Tab 10.
The issues raised by the County on appeal are asserted in its Opening Brief enclosed at Appx. Tab 11, and
Appendix of Supporting Documents ("Brief Appx.") enclosed at Appx. Tab 12.
14
See Tribe's 2003 Response at Appx. Tab 8.
13
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 6
Johnna Blackhair, Acting Director
March 20, 2015
4. Description of the Property Sought to be Acquired
The Golf Course sits in the heart of Kendale Lakes, a densely populated, urban
subdivision of unincorporated Miami-Dade County established in 1972.15 The Property is
surrounded by tree-lined streets and middleclass homes built in the early 1970s. Many homes
abut the Property, thus, using the Golf Course as their backyards. The Golf Course was
originally offered as an amenity to local homeowners, and still remains an attractive feature of
the neighborhood. The Golf Course features a Country Club that houses banquet facilities and
an outdoor Olympic-size swimming pool.
The Golf Course is designed in the shape of a horseshoe with single-family homes and
multifamily apartment buildings built in the interior pocket of the horseshoe, as well as around
its exterior rims. The total area of Kendale Lakes is approximately 8.6 square miles, and the
Golf Course occupies approximately one square mile of it. 16 With a population of nearly 60,000
and over 19,000 households, Kendale Lakes suffers from high volume traffic. The major arteries
bounding the Property are: to the north and south, S.W. 56th Street and S.W. 72nd Street,
respectively; and to the west and east, S.W. 147th Avenue and S.W. 137th Avenue, respectively.
In addition, the Golf Course is adjacent to the Miller Square Shopping Center, a 450,000 square
foot shopping mall.
The Miccosukee Reserved Area, where a majority of Tribe members live, is located over
25 miles away from the Property. Given the congestion and heavy traffic patterns of the area,
travel to the MRA can take anywhere between 40 minutes to an hour. The Property is also
located eight miles from the Tribe's Casino, which itself is located on Krome Avenue (a.k.a.
S.W. 177th Avenue) north of the Tamiami Trail (a.k.a. U.S. 41).
As set forth below, the Property has been dedicated to the local residents pursuant to a
99-year use-restriction covenant. Its canals and lakes have been dedicated in perpetuity to the
residents of the County at large.17
III.
The BIA Lacks Statutory Authority to Accept the Property into Trust as Required
by 25 C.F.R. 151.10(a)
The BIA lacks statutory authority to accept the Property into Trust because the Tribe does
not meet the definition of the term "Indian tribe" set forth in section 19 of the IRA for trust
acquisition purposes.
The BIA's fee-to-trust land acquisition regulations require the BIA to identify the
existence of statutory authority for a trust acquisition, including any limitations contained in such
authority. 18 The Tribe's Application relies upon Section 5 of the IRA of 1934, codified as 25
15
16
17
18
See Map of Golf Course at Brief Appx. Tab "A" enclosed at Appx. Tab 12.
See Map of Kendale Lakes at Brief Appx. Tab "B" enclosed at Appx. Tab 12,
See Plat of Kendale Lakes North Section 1 ("Plat 93-1") at Brief Appx. Tab "C" enclosed at Appx. Tab 12.
See 25 C.F.R. § 151.10(a).
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 7
Johnna Blackhair, Acting Director
March 20, 2015
U.S.C. § 465. Under that section, the Secretary may accept land into trust only "for the purpose
of providing land for Indians." 19
The IRA states that the "term Indian as used in this act shall include members of any
recognized Indian tribe now under federal jurisdiction. . ."2° The United States Supreme Court
held, based on the definition of "Indian" in Section 19 of the Act, 25 U.S.C. § 479, that the
Secretary's authority to take land into trust under § 465 is limited only to tribes that were "under
Federal jurisdiction" at the time the Act was enacted in June 1934. See Carcieri v. Salazar, 555
U.S.C. 379, 395-96 (2009) In Carcieri, the tribe for which the Secretary sought to acquire land in
trust was the Narragansett Indian Tribe of Rhode Island. The federal government did not
formally recognize the tribe until 1983, and neither party in the case contended the tribe was
otherwise "under Federal jurisdiction" in 1934.
Thus, in the wake of Carcieri, the BIA, in reviewing a proposed fee-to-trust land
acquisition, must analyze and determine whether the tribe in question was "under Federal
jurisdiction" in 1934.21 Moreover, because the Carcieri decision represents the authoritative
interpretation of the IRA, the BIA must, even when reviewing a matter that arose under the IRA
prior to February 24, 2009 (the date Carcieri was decided), still use the Carcieri Court's IRA
analysis as the paradigm for its inquiry. 22
The Tribe was not federally recognized as a tribe of "Indians" until January 11, 1962.23
Therefore, the Remand Order directs the BIA to analyze whether the Tribe was under federal
jurisdiction in 1934. See 57 IBIA 193. The analysis necessarily requires the BIA to consider
materials on the record that support a conclusion that the Tribe meets the definition of "Indian"
and "tribe" for purposes of acquiring land under Section 5 of the IRA and Carcieri. See 25
U.S.C. § 479. The administrative record on appeal, however, contained no such materials. The
Application, for example, merely states that the Tribe "has reviewed the applicable parts of 25
U.S.C. and finds no limitation contained in that authority." See Application p. 2. Accordingly,
the BIA must obtain supplemental materials to support its Carcieri analysis.
One source of supplemental material is suggested in the Fee-to-Trust Handbook.24 It
states that the Regional Director should consult with the Office of the Solicitor with sufficient
lead-time so that it can prepare an analysis under Carcieri (a "Carcieri Opinion").25 Over two
years have transpired since the Board remanded the Application to the BIA, leaving sufficient
time to obtain a Carcieri Opinion or to undertake such analysis without the Solicitor's assistance.
19
25 U.S.C. § 465 (emphasis added).
25 U.S.C. § 479.
21
See New York v. Salazar, 2012 WL 4364452, at *14 (N.D.N.Y. Sep. 24, 2012); Cal. Coastal Comm'n v.
Pac. Reg'l Dir., Bureau of Indian Affairs, 51 IBIA 141, 141 (2010).
22
See Salazar, 2012 WL 4364452, at *14, n. 26.
23
See John C. Carver to Reginald C. Miller, 11 January 1962, file 4374-1962-Micc.-054-3, Bureau of Indian
Affairs, Central Files, National Archives; Record Group 75, National Archives; Washington National Records
Center, Suitland MD.
24
See Handbook on Acquisition of Title to Land Held in Fee or Restricted Fee (Fee-to-Trust Handbook),
issued by the Department of Interior, Bureau of Indian Affairs; Rel. #13-90, vet. III (rev. 4), issued 6/16/14 at Appx.
Tab 13.
25
See Fee-to-Trust Handbook p. 15.
20
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 8
Johnna Blackhair, Acting Director
March 20, 2015
If the BIA has obtained a Carcieri Opinion or relied on other supplemental materials in its
Carcieri analysis, the County requests it be furnished with such materials and given an
opportunity to review and comment on them.
Based on the administrative record on appeal, no evidence supports a conclusion that the
Tribe was "under Federal jurisdiction" in 1934, as the Tribe did not become officially recognized
by the Federal government until January 11, 1962 and nothing in Tribe's history suggests that it
was otherwise "under Federal jurisdiction" in 1934.26 Accordingly, based on the record and
without resort to supplemental materials, the Tribe was not under federal jurisdiction in 1934 and
is not eligible to have land taken into trust under Section 5 of the IRA.
IV.
The BIA's Decision on Remand must Adequately Consider the Criteria Set Forth in
25 C.F.R. § 151.11 Governing "Off-Reservation" Acquisitions
The Property sought to be acquired is outside and non-contiguous to the Tribe's
reservation. Therefore, the Regional Director must give greater weight to the local government's
jurisdictional concerns in accordance with the standards set forth in 25 C.F.R. § 151.11
("Section 151.11"). Section 151.11 imposes additional considerations, over and above those
evaluated for "on-reservation" requests under 25 C.F.R. § 151.10. Thus, in order to comport
with the law, the Regional Director must give greater weight to the County's and State's
concerns regarding jurisdictional conflicts.
Section 151.11 requires the Regional Director to consider seven of the criteria set forth in
25 C.F.R. §151.10, which governs "on reservation" acquisitions, but to evaluate them applying a
standard that is more deferential to the County's concerns set forth herein, including
jurisdictional problems and potential conflicts of land use, as well as potential impacts on
regulatory jurisdiction.27 Specifically, 25 C.F.R. § 151.11(b) mandates:
[A]s the distance between the tribe's reservation and the land to be
acquired increases, the Secretary shall give greater scrutiny to the
tribe's justification of the anticipated benefits from the acquisition.
The Secretary shall give greater weight to the concerns raised
pursuant to paragraph (d) of this section. 28
26
See generally Harry A. Kersey, Jr., An Assumption of Sovereignty 175-89 (1996).
27
See Jefferson County, Oregon, Board of Commissioners v. Northwest Regional Director, BIA, 47 IBIA
187, 188 (2008) (vacating decision and remanding to resolve contiguity dispute or apply the "greater scrutiny"
standard of § 151.11 for non-contiguous land acquisitions).
28
See 25 C.F.R. § 151.11(d), which states:
Contact with state and local governments pursuant to § 151.10 (e) and (t) shall
be completed as follows: Upon receipt of a tribe's written request to have lands
taken in trust, the Secretary shall notify the state and local governments having
regulatory jurisdiction over the land to be acquired. The notice shall inform the
state and local governments that each will be given 30 days in which to provide
written comment as to the acquisition's potential impacts on regulatory
jurisdiction, real property taxes and special assessments.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 9
Johnna Blackhair, Acting Director
March 20, 2015
Given the great distance between the Property and the MRA-25 miles of congested
urban traffic—plus the character of the residential subdivision where the Property is located and
the proximity of the Property to the homes in the neighborhood, the County's concerns should be
carefully evaluated and weighted in favor of denying the Application. The Board has recognized
that the comments of state and local governments must be given increasing "weight" and
"scrutiny" as the distance between a tribe's reservation and the subject land increases.29 The
United States Court of Appeals for the First Circuit described this rule in Carcieri v.
Kempthorne, stating:
Generally, the farther from a reservation the land is, the greater the
scrutiny the Secretary gives to the justification of anticipated
benefits from the acquisition. 30
This means that the asserted benefit of the acquisition, namely, the elimination of
property taxes and exemption from complying with state and local laws,31 cannot outweigh the
County's concerns regarding the "acquisition's potential impacts on regulatory jurisdiction, real
property taxes, and special assessments."32
1. The Tribe's purported Purpose and Use does not Withstand Scrutiny under 25
C.F.R. § 151.10(b) and (c)
The Tribe does not adequately justify the need and purpose for the Property to be placed
into trust. Under 25 C.F.R. § 151.10(b), a tribe must set forth its specific need for land to be
placed into trust status, and the Secretary must consider "the need of ... the tribe for additional
land." Given the distance of the Property from the MRA, the Regional Director on remand
should apply stricter scrutiny to the Tribe's justification of the anticipated benefits of the
acquisition.33
A tribe can establish a need for additional land by showing that it has minimal or no land
in trust,34 that the land acquisition would "greatly enhance the Tribe's economic base and its
ability to be self-sufficient,"35 or "trust acquisition will help ensure the survival of the Tribe."36
29
Jefferson County v. Northwest Regional Director, 47 IBIA at 189-90 (vacating regional director's decision
to take land into trust and stating: "[w]e think section 151.11(b) must be read to add something to the criteria in
section 151.10).
30
Carcieri v. Kempthorne, 497 F.3d 15, 24 (1st Cir. 2007), cert. granted in part, 128 S.Ct. 1443, 170 Led. 2d
274 (Feb. 25, 2008).
31
See Village of Hobart, Wisconsin v. Acting Midwest Regional Director, BIA, 57 IBIA 4, 15 (2013).
32
See County of San Diego, California, et at. v. Pacific Regional Director, BIA, 58 IBIA 11, 13 (2013).
33
Section 151.11(b) mandates:
FA]s the distance between the tribe's reservation and the land to be acquired
increases, the Secretary shall give greater scrutiny to the tribe's justification of
the anticipated benefits from the acquisition.
34
See Keetoowah Band of Cherokee Indians v. Director, Eastern Oklahoma Region, BIA (Decision
6 /24/2009, p. 5).
35
South Dakota v. Dept. of Interior, 423 F.3d 790, 801 (8th Cir. 2005).
36
South Dakota v. Dept. of Interior, 401 F.Supp. 2d 1000, 1008 (D.S.D. 2005).
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 10
Johnna Blackhair, Acting Director
March 20, 2015
In addition to showing a need, the tribe must also describe the purposes for which it will
use the land,37 which the Regional Director must consider pursuant to 25 C.F.R. § 151.10(c).
The Regional Director may accept land into trust under 25 C.F.R. § 151.3(a) if it is "necessary to
facilitate tribal self-determination, economic development, or Indian housing."38 However,
where there is "no justification for placing the land in trust status and removing the property
from the state and local tax rolls," the Regional Director should deny the application.39
Consequently, the Tribe's Application must adequately justify both the need and purpose for
land to be placed into trust. 40
First, the Tribe did not adequately set forth a need for additional land under 25 C.F.R.
§ 151.10(b). The Application cites three reasons for its need to acquire the Property. The first
cited "need" is to increase the Tribe's land base. Unlike other cases in which a need was found,
the Application does not assert that the Tribe currently has minimal or no other land in trust.4'
The Application, instead, states the Tribe has trust lands in Dade and Broward counties,
including its Casino on Krome Avenue and its MRA on Tamiami Trail "with government
offices, schools, health facilities and housing."42 In fact, the Tribe currently has in trust over
80,580 acres of land, and only 650 members. That works out to over 124 acres of land for each
Tribal member.
Moreover, the Tribe's statement of need does not assert that the land acquisition is
necessary for purposes of the Tribe's continued existence.43 Instead, the Application repeats the
Tribe's "desire to acquire land to increase its land base and provide economic self-sufficiency
through diversity in its development."44 The Tribe, however, does not explain why these goals
cannot be met on non-trust land. This is not surprising because the Tribe has no need for
additional trust land. A tribe must show that it has a demonstrable need for the property, such as
that "existing land is already developed."45 Here, with over 80,000 acres of mostly undeveloped
land, the Tribe is hard-pressed to argue they have a need to increase their land base.
The Application also cites two other bases for need: to provide an additional source of
revenue to the Tribe and to diversify the economic development ventures of the Tribe. The Tribe
does not explain why it needs to remove the Golf Course from complying with state and local
laws in order to accomplish these revenue generating and diversification goals. Moreover,
neither need could be met by taking this Golf Course into trust. First, the Tribe has owned the
Property in fee since 2001. According to the Tribe's Business Plan, which forms part of the
37
38
39
40
41
25 C.F.R. § 151.10(c).
25 C.F.R. § 151.3(a).
See McAlpine v. U.S., 112 F.3d 1429, 1436-37 (10th Cir. 1997).
See id.
See Keetoowah Band of Cherokee Indians, p. 10; South Dakota, 423 F.3d at 801.
42
See Application at p. 2.
See South Dakota, 401 F.Supp. 2d at 1008.
44
See Application at p. 2
45
See Avoyells Parish, Louisiana, Policy Jury v. Eastern Area Director, BIA, 34 1BIA 149,
153 (1999).
43
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 11
Johnna Blackhair, Acting Director
March 20,2015
administrative record, the Property is not, and has never been, profitable.46 It, therefore, cannot
be considered a source of revenue generation for the Tribe.
In fact, the Golf Course appears to be a drain on the Tribe's assets, as the Golf Course has
apparently been insolvent, with its debts exceeding its revenues in the amount of over half-amillion annually.47 The unaudited Cash Flow Statement prepared by the Tribe in its Business
Plan is defective as it contains misleading gross-profit projections for all years from 2010
through 2014.48 Specifically, it states that, using 2010 as a base year, the Golf Course's gross
profits for 2010 were projected at $2,288,044. This figure is mathematically wrong. The figure
was arrived at by adding total revenue of $1,842,395 to the cost of sales of $445,649. Clearly
this is misleading, as the correct calculation calls for deducting, and not adding, the cost of sales
to gross revenue. Thus, the correct gross profits for 2010 should have been stated at $1,396,746.
The difference between the stated profit amounts is almost $900,000.00. This mistake
underscores the defective nature and unreliability of the Cash Flow Statement.49 After 13 years
of unprofitability and faulty accounting, the Tribe's stated "need" does not withstand scrutiny as
an additional source of revenue.50
Similarly, the Tribe's third stated "need"—economic diversity—does not withstand
scrutiny. The Tribe has owned this Golf Course for over ten years. The Tribe's economic
enterprise already has, therefore, been diverse for over a decade. No data in the Application or
the administrative record supports that the Tribe needs to place the Golf Course into trust to
promote economic diversity or development needs. The Application admits that Tribal members
are not engaged in subsistence living, but it omits that the Tribe generates substantial wealth
from its large-scale casino operations in the County. It is a wealthy tribe that distributes hundreds
of thousands of dollars to its members each year. According to published reports, each Tribal
member receives at least $120,000 annually from the Tribe.51 The Tribe can easily afford to pay
the taxes on the Property. The record simply contains no evidence to support a conclusion that
there is a need to remove this Property from the tax rolls.
As to the purpose for which the land will be used, the Application states that the Tribe
has no plans to change the existing use as a golf course because it intends to use it to entice visits
to its Casino. This prong of the analysis, 25 C.F.R. § 151.10(c), is of critical concern to the
residents of Kendale Lakes and the County. The concern arises from the fact that the Property is
46
47
48
See Business Plan at Brief Appx. Tab "D" enclosed at Appx. Tab 12.
See id.
See id.
49
IBIA vacated the southwest regional director's decision to place land into trust because the decision was
based on a mistaken assumption regarding the collection of taxes on the property. The faulty premise, the IBIA
held, may have led to a faulty decision, and therefore, vacated it. See Rio Arriba, New Mexico, Board of County
Commissioners v. Acting Southwest Regional Director, Bureau of Indian Affairs, 36 IBIA 14, 21 (2001).
50
Section 151.11(b) requires the Regional Director to apply a stricter scrutiny to the Tribe's justification of
the anticipated benefits from the acquisition.
51
See Jay Weaver, Tribal Chairman's Binge Spending Led to Bad Blood, The Miami Herald, July 7, 2012 at
Brief Appx. Tab "E" enclosed at Appx. Tab 12.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 12
Johnna Blackhair, Acting Director
March 20, 2015
encumbered by a 99-year restrictive covenant that is written into the original plat that established
the community of Kendale Lakes.52 The Plat specifically mandates:
Tract "B", as shown on the attached plat, shall not be permitted for
any use other than a golf course, or a country club or operations
incidental thereto. These restrictions shall continue for ninety-nine
(99) years. . . .
The Tribe's 2003 Response to the County's 2003 Comment Letter implies, if not outright
states, that the Tribe is not bound by the restrictive covenant.53 The Tribe's position assures a
jurisdictional conflict that likely will only be resolved after years of costly litigation with the
community's local residents. As set forth in Section IV.3.B.(viii), infra, discussing the
jurisdictional quagmire that ensues from placing this land into trust, the law requires the Tribe to
honor restrictive covenants.54 Yet based on the Tribe's 2003 Response, it is clear that the Tribe
disagrees, thus causing a substantial jurisdictional conflict. Given the restrictive Covenant,
coupled with the Tribe's 2003 Response, the concern that the Property may change use involves
material property interests of local governments and affected local residents. These concerns
must be given greater weight.
Lastly, the Application states that the Tribe requires placing this Golf Course into trust to
advance the Tribe's goal of economic self-sufficiency. The Tribe has achieved self-sufficiency.
It has a full-fledged government and business enterprise that acts in the interest of its members,
and particularly, the small number of members who live within the reservation's boundaries. It
has vast financial resources,55 and a well-developed governmental and economic infrastructure.
Indeed, the Tribe admits it does not need the BIA to administer services to the Tribe. This is
because the Tribe has contracted with the BIA to have the Tribe's staff administer the BIA's
responsibilities. See Application at 3. The Tribe is economically self-sufficient and does not need
the Property placed into trust based on this purported need.
The Tribe's stated purpose and use are clearly aspirations and not "needs." Nothing in the
record demonstrates a need for additional trust land.
52
See Plat 93-1 at Brief Appx. Tab "C" enclosed at Appx. Tab 12.
See Tribe's 2003 Response p.3, at Appx. Tab. 8.
54
The Tribe stated in its 2003 Response that it would accede to the policy exceptions carved out in the
Preliminary Title Opinion; however, no cooperation agreement was reached with the Tribe, and no guarantee of
enforceability of the covenants, conditions and restrictions exists. While case law favors enforceability of restrictive
covenants, it is not clear either way. See People ex rel. Dept. of Public Works v. 25.09 Acres of Lands, 329 F.Supp.
230, 233 (S.D. Cal. 1971) (acknowledging that "a restrictive covenant is generally deemed a property right under
federal law;" thus, in eminent domain context is a compensable interest); Friends of East Willits Valley v. County of
Mendocino, 101 Cal. App. 4 th 191, 123 Cal. Rptr. 2d 708 (Cal. Ct. App. 2002) ("We hold that federal law does not
void prior restrictions on land agreed to before the land passed into trust.").
55
See Jay Weaver, Tribal Chairman's Binge Spending Led to Bad Blood, The Miami Herald, July 7, 2012 at
Appendix "E."
53
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 13
Johnna Blackhair, Acting Director
March 20,2015
2. The County would suffer substantial negative impacts From the Trust Acquisition
and Subsequent Removal of the Land From the Tax Rolls Under 25 C.F.R.
§ 151.10(e).
Under 25 C.F.R. § 151.10(e), the Regional Director must consider "the impact on the
State and its political subdivisions resulting from the removal of the land from the tax rolls."
The County provides a multitude of governmental services to the Golf Course and
Country Club. Those services include fire suppression and emergency rescue and response;
County Sheriff and local police patrol and protection services; environmental protection, public
works, code enforcement; building plans review and inspections; water and sewer; solid waste
removal; planning and zoning; emergency management; transportation; public education; and
business regulation, among other services.
The County is required to fund provision of community services using only property tax
revenue. The annual amount of property taxes currently levied on the Property is $65,711 56 and
no special assessment is currently assessed against the Property.
The loss of tax revenue caused by the removal of almost 230 acres of land from the tax
rolls would likely cause an unjust increase in the tax burden of County residents. The County
would be required to absorb the cost of providing governmental services to the Property and
surrounding area, such as repairing the roads that provide ingress and egress to the Property;
trash collection and disposal; and emergency services, such as fire suppression and rescue, to
name a few.
The County's Fire Prevention Division provides fire avoidance services aimed at
reducing the incidence of injury, death, and property loss attributed to fire. Responsibilities
include fire inspections, life safety building plans review, systems engineering review, fire
investigations, Code Enforcement, and Public Education within the County's jurisdiction. Any
jurisdictional changes at this location would remove Miami-Dade Fire Prevention's authority as
a regulatory agency mandated by the State of Florida to enforce the Florida Fire Prevention Code
ensuring that these vital life safety features are implemented and enforced within Miami-Dade
County.
Given its state-mandated responsibilities, the Fire Prevention Division would be forced to
continue delivering emergency services to the Property, but without ability to recoup costs. In the
past five years, the County's Fire Prevention Division has responded to emergency service calls
from the Golf Course on 25 separate occasions.57 Nearly half of them were life threatening
emergency rescue calls. The costs incurred in responding to such calls, including first responder
salaries, equipment purchases, maintenance, and associated costs would be shouldered by the
local residents instead of the party benefitting from the services—the Tribe. Local residents
would doubtlessly see an increase in fees to compensate for the lost property tax revenue. Thus,
56
The Property is identified in the County's records by two distinct tax folio numbers: 30-4927-002-1090 and
30-4927-002-1100. See Notices of 2014 Real Estate Property Taxes for each tax folio number at Appx. Tab 14.
57
See Miami-Dade Fire Rescue Division Incident Summary Report at Appx. Tab 15,
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 14
Johnna Blackhair, Acting Director
March 20, 2015
the cost and burdens for the current services, as well as future services, will unjustly fall on other
property owners within the County, despite the Tribe's clear ability to pay.
Section 151.10(e) does not spell out the standards for assessing the loss of tax revenue to
local governmental bodies, but the Secretary has in the past considered the presence of voluntary
payments made by a tribe, as well as service or cooperation agreements reached with local
governments.58 Where a tribe has negotiated "future intergovernmental service agreements"
with local municipalities for the costs of services, the tribe's payments under such agreement
would reduce the impact from the loss of tax revenue.59 Here, not only would the County not
receive payments from the Tribe, but the Tribe has acknowledged in its 2003 Response that it
would require the services of the County,6° though it would not pay for them through taxation.
There is no service agreement with the Tribe, and no cooperation agreement pursuant to which
the Tribe agrees to pay for services provided by the County. Importantly, in the ten-plus years
that this Application has been pending, the Tribe has never approached the County with any such
proposal.
The Application states that the Tribe currently provides law enforcement to the Golf
Course through its security division, implying that the County's law enforcement costs would
decrease, and consequently, offset tax revenue loss caused by the trust acquisition. As addressed
in Section IV.3.A., infra, discussing Section 151.10(f), the implications of granting exclusive
jurisdiction to the Tribe's law enforcement agency in this densely-populated urban neighborhood
will likely increase the County's law enforcement costs, and in fact, result in costly duplication
of services and significant jurisdictional conflicts.
3. The Proposed Trust Acquisition will cause Significant Jurisdictional Problems
and Land Use Conflicts Under 25 C.F.R. § 151.10(f).
Given the distance of the Property to the Tribe's reservation, Section 151.11(b) requires
the Regional Director to give greater weight to the County's jurisdictional concerns. The
Regional Director is required by 25 C.F.R. 151.10(f) to consider "fflurisdictional problems and
potential conflicts of land use which may arise." Where a tribe unilaterally attempts to revive its
sovereign control "[p]arcel-by-parcel," the effect is to 'seriously burde[n] the administration of
state and local governments.'"61 Because of the potential for significant consequences, the BIA
"is required to consider jurisdictional issues identified in response to the Notice of Application
and other relevant comments received."62 In addition to analyzing potential conflicts, the BIA
must also discuss negotiations and agreements between the state and/or local governments
relative to services.63 Although the BIA is not required to consider "every speculative use," it
must nevertheless "give reasonable and prudent review of all credible information received or
58
59
See Shakopee Mdewakanton Sioux Community Decision, dated June 7, 2007.
See id. (finding that intergovernmental agreements produced a "mitigating effect" on the loss of tax
revenues).
60
61
62
63
See Tribe's 2003 Response p. 4, at Appx. Tab. 8.
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 200 (2005).
BIA Fee-to-Trust Handbook, p. 26 at Appx. Tab 13.
See County of San Diego, California, et al. v. Pacific Regional Director, BIA, 58 IBIA 11, 13-15 (2013).
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 15
Johnna Blackhair, Acting Director
March 20, 2015
obtained independently,"64 and consider how the acquisition would affect existing land use
ordinances. Thus, prior to acquiring land into trust status, the BIA must conduct an adequate
review and analysis of the potential for jurisdictional or land use conflicts.65
The County and the State (together, the "Local Authorities") raise serious jurisdictional
conflicts, specifically: law enforcement jurisdiction; maintenance of water drainage canal
system running through the Golf Course; impact of inconsistency with the design of neighboring
homes on Comprehensive Development Master Plan; continuity of easements on the Golf
Course; maintenance and protection of County water well; impact on residents who enjoy 99year covenant restricting use of the land to a golf course; agricultural waste disposal permits;
maintenance of connection sewer system, and more.
A. The Proposed Trust Acquisition Poses Immense Jurisdictional Conflicts in the
Delivery of Police Protection and Emergency Services Under 25 C.F.R.
§ 151.10(f)
The Fee-to-Trust Handbook specifically requires that the BIA "consider jurisdictional
issues identified in response to the Notice of Application," to "give reasonable and prudent
review of all credible information received or obtained independently."66
The Application states the Tribe provides its own law enforcement through its security
division from the Casino, five miles away, and will continue to do so. However, the Miami-Dade
Police Department (the "Miami-Dade PD") reports that it has responded to over 7,200 calls to
the Golf Course in the past three years, nearly 800 of which involved crimes—and over half of
those classified as violent.67 The suggestion that the Tribe provides its own law enforcement is
overstated. Clearly, the Miami-Dade PD provides valuable emergency police services at the Golf
Course; services that would not longer be available if the Property is placed in trust, which
places public safety in jeopardy. 68
The Miami-Dade PD has had a number of clashes with the Tribe's police department (the
"Tribal PD") over conflicting positions on the scope of the jurisdiction granted to the Tribal PD
versus that reserved to the Miami-Dade PD. In her 2003 Comment Letter, the State Attorney
explained the state of affairs between these factions.69 Granting trust status would complicate
the exercise of state criminal jurisdiction over crimes committed on the Property. The State of
64
See id.
See id. (rejecting tribe's argument that BIA is not required to "actually address" its consideration of
comments from interested parties concerning the factors set forth in 25 C.F.R. §§ 151.10 and 151.11).
66
See id.
67
See Miami-Dade PD Incident Report Summary at Appx. Tab 16.
68
In 2003, the County Manager, as head of the Miami-Dade PD at the time, expressed his position that once
the Property was placed into trust, the Miami-Dade PD "would no longer routinely patrol the area." See State
Attorney 2003 Comment Letter, at Appx. Tab 7, and County 2003 Comment Letter at Appx. Tab 6.
69
See State Attorney Comment Letter at Appx. Tab 7.
65
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 16
Johnna Blackhair, Acting Director
March 20, 2015
Florida presently has criminal jurisdiction over Indian lands located within the State of Florida.70
The only exception would be lands or crimes excepted by a specific Act of Congress. 71
The first jurisdictional concern is that Miami-Dade PD would cease regular patrolling of
the Property if it is placed into trust. The Tribe posits that lands taken into trust after the
enactment of the Indian Civil Rights Act in 1968 were not affected by legislation enacted
pursuant to Public Law 280, like section 285.16, Florida Statutes. 72 Thus, the Tribe asserts that
"State assumption of jurisdiction does not apply" because "ALL of [their] reservations were
acquired after 1968." The State Attorney makes clear that her office espouses an opposing view
on jurisdiction. The jurisdictional conflicts for law enforcement are crystal clear in light of the
State Attorney's unambiguous statement that the office's concerns are:
prompted by the Tribe's continued refusal to meet with the State
Attorney's Office to discuss a cooperation agreement for the
prosecution of criminal cases; the demonstrated lack of
cooperation by the Tribe in the prosecution of tribe members; and
the statement by representatives for the Tribe suggesting that the
State's existing jurisdiction is limited in any area other than the
Miccosukee Reserved Area.73
The Tribe's position on jurisdiction has caused numerous clashes with the Local
Authorities. Most notably, the Tribe impeded, rather than assisted, law enforcement in matters
related to the prosecution of Tribal members. The most compelling example was the case cited
in the State Attorney's 2003 Comment Letter regarding the prosecution of Tribal member, Kirk
Douglas Billie ("Billie"). Billie stole another Tribe member's vehicle on the MRA and drove the
vehicle into the County in order to destroy it by dumping it into a canal. Tragically, the vehicle
contained Billie's two young children who drowned. Billie was charged and convicted with
second-degree murder. As recounted by the State Attorney, the prosecution was a 'procedural
nightmare' because the crime began in federal jurisdiction on the Tribe's reserved area, but
culminated with the lethal act committed in state jurisdiction. The Tribe would not cooperate
with the production of witnesses and refused all requests to assist the State in the tria1. 74
Similarly, in a more recent example, Tribal PD was accused of mishandling its first
response to a car crash where one person was killed. The Florida Highway Patrol alleges they
were turned away by the Tribal PD only to later learn that the Tribe had no jurisdiction over the
matter.75 Numerous examples of jurisdictional clashes abound as a result of the opposing views
of jurisdiction held by the State and the Tribe.76 Placing this Property into trust would invite
70
See Section 285.16 Florida Statutes.
See Nevada v. Hicks, 121 S.Ct. 2304 (2001).
72
See Tribe's 2003 Response at Appx. Tab. 8.
73
See State Attorney's 2003 Comment Letter p.1 at Appx. Tab 7.
74
The murder conviction was ultimately affirmed on appeal in 2007.
75
See Jon Tayler, Miccosukee Tribe Again Avoids Lawsuit over Fatal 2009 Car Crash, Miami New Times,
July 10, 2012 at Brief Appx. Tab "F" enclosed at Appx. Tab 12.
76
See Gus Garcia Roberts, Miccosukee Tribe Keeps Quiet About Series of Traffic Deaths, Broward New
Times, May 14, 2009 at Brief Appx. Tab "G" enclosed at Appx. Tab 12.
71
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 17
Johnna Blackhair, Acting Director
March 20, 2015
these clashes into the Kendale Lakes neighborhood, placing an undue burden on its residents.
The Property is located in a densely populated neighborhood where clashes among law
enforcement could jeopardize the safety of those living on and near the Golf Course.
Moreover, the Tribe's ability to provide timely emergency services to the Property is
doubtful, given the great distance between the MRA and the Property (over 25 miles away) or
the Casino and the Property (over 9 miles away in a high traffic area). In 2008, the IBIA vacated
the regional director's decision in Jefferson County v. Southwest Regional Director for similar
law enforcement reasons.77 In that case, the IBIA found the regional director failed to respond to
the law enforcement jurisdiction concerns raised by Jefferson County. The county argued that
the great distance between the reservation and the trust-land made it impossible for the tribe to
provide effective emergency services. The IBIA stated:
The Regional Director acknowledged the County's argument that
the 'tribe would have difficulty providing services,' but did not
respond to that concern, explain why it was not warranted, or
otherwise address it.78
Because of this lack of response or explanation, the IBIA found the regional director
failed to meet the higher standard of scrutiny for jurisdictional concerns. The IBIA stated:
We agree with the County that the Decision does not reflect any
consideration of the Tribe's ability to provide services such as
police or fire protection to the Eyerly property, or whether the
County must nonetheless maintain such service obligations as a
matter of public health and safety for lands owned in trust for the
Tribe for which it receives no tax revenues.79
The County's concerns must be given greater weight, as required by section 151.11(b).
Here, given the Tribe's historical clashes with the Miami-Dade PD, it is unreasonable to
conclude that the admitted jurisdictional conflicts could be resolved or mitigated through
cooperative agreements with the local authorities. This is because for the ten-plus years that this
Application has been pending, the Tribe has never proposed a formal cooperation agreement
between the Tribe and the County or the State Attorney to address jurisdictional issues related to
law enforcement of the Property.8° The State Attorney's 2003 Comment Letter and the Tribe's
2003 Response demonstrate that the factions had little prospect of reaching agreement.
Specifically, each party attached letters that were exchanged between the State Attorney and the
Tribe over several months in 2003. In her letters, the State Attorney repeatedly requested a
meeting with the Tribe to explore a cooperation agreement regarding coordination of law
enforcement and other matters. The Tribe, on the other hand, in its letters responding to the State
Attorney's repeated requests, refused to meet, and instead, placed obstacles in the way of such a
77
Jefferson County, Oregon, Board of Commissioners v. Northwest Regional Director, BIA, 47 IBIA 187,
200-01 (2008)
78
Id. at 200.
79
Id. at 200-01.
80
Decision p. 6.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
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Johnna Blackhair, Acting Director
March 20, 2015
meeting.8I The tone of the letters from the Tribe's attorneys illustrates the contentious
relationship between the parties. Tellingly, the letters are dated over a decade ago, and yet to
date, no cooperation agreement has ever been reached.
The serious jurisdictional concerns raised by the Local Authorities are exacerbated
because of the Property's location in a densely-populated urban area surrounded by adjacent
homes. The homes that are adjacent to the Property, and actually abut the Golf Course, would
encounter first-hand the impact of these problems. Questions will arise, such as: Who to call in
an emergency? Who should have jurisdiction if a burglar is seen in a home, who then runs into
the backyard and onto the Golf Course? Should the Miami-Dade PD respond if the Tribal PD
has been called, or vice versa? What happens if both respond and are on site? Which
government has the authority to prosecute or take a person into custody? Which government has
the authority to investigate or duty to preserve evidence? What about an incident on the Golf
Course involving persons who are not Tribal members? If the trust acquisition goes forward, the
checkerboarding and jurisdictional conflicts will only get worse. 2 Police officers must
determine jurisdiction for every call based on where the call is coming from at or near the
perimeter of the Golf Course.
These are very real conflicts that will have a negative impact on all of the families who
live on or near the Golf Course. Even with a "no change in use" purportedly anticipated by the
Tribe, the change in law enforcement will have a grave impact on the community.
Moreover, existing cooperation agreements have proven to be ineffective for protecting
public safety in concurrent enforcement jurisdictions. The Miami-Dade PD and Tribal PD have
concurrent jurisdiction agreements in place to patrol the area surrounding the Tribe's
reservation-25 miles away from the Property. The agreements have caused confusion and
disruption in responding to emergency calls, which jeopardizes public safety.83
In 1978, the Tribe had jurisdiction only over the lands in the MRA. Those lands are
located in remote areas of the Everglades. The Tribe had no jurisdiction over adjacent lands,
where many of its members lived. At the time, the County provided police services to the
Tribe's dependent settlements and enterprises outside of the MRA, but because of the remote
location of those areas, the Miami-Dade PD did not routinely patrol them. The Tribe, thus,
requested the County grant them concurrent jurisdiction to patrol those remote areas with their
own Tribal PD. The County agreed, and the parties entered into the first concurrent jurisdiction
agreement in 1978. Thereafter, the County agreed to extend the Tribe's concurrent jurisdiction
area to lands in the western part of the County, but no further east than the Tribe's Casino on
Krome Avenue. The last of these extensions was granted almost 15 years ago in 1999. A look at
the County map shows that concurrent jurisdiction ends before the area becomes populationdense, and is restricted to lands within the Everglades." Concurrent jurisdiction in a populated
area was never contemplated by these agreements. None of the concurrent jurisdiction
81
82
83
84
See Exhibits to Tribe's 2003 Response at Appx. Tab 8.
See Map of Golf Course at Brief Appx. Tab "A" enclosed at Appx. Tab 12.
See Concurrent Jurisdiction Agreements at Brief Appx. Tab "H" enclosed at Appx. Tab 12.
See Map of Western Miami-Dade County at Brief Appx. Tab "I" enclosed at Appx. Tab 12.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 19
Johnna Blackhair, Acting Director
March 20, 2015
agreements permit the Tribe to have jurisdiction outside of the Everglades or the Miami-Dade
PD to have jurisdiction on the MRA.
In sum, the law enforcement jurisdictional issues are substantial and have not been
resolved. Placing additional non-contiguous land into trust will continuously increase the
conflicts between the competing police forces, and ultimately threaten the health and safety of
the general public.
B. The Proposed Acquisition would cause Numerous Jurisdictional and Land Use
Conflicts with Zoning and Comprehensive Planning Under 25 C.F.R. § 151.10(0.
Accepting the Property into trust will result in a patchwork of jurisdiction, disrupting the
Kendale Lakes community and interfering with the ability of the County and other local
governments to protect and preserve the health and safety of the public. The Regional Director
is required to give greater weight to the numerous jurisdictional conflicts asserted by the County
below regarding threats to the County's drinking water supply, zoning regulations, water flow
rights and drainage easements on the Property, as well as enforcement of a 99-year restrictive
covenant limiting use of the Property to a golf course, among others.
i.
Drinking Water Supply
The Property is located within the West Wellfield Interim Protection Area as well as
within the Alexander Orr/Southwest Wellfield Protection Area Complex. The Division of
Environmental Resources Management ("DERM") reports that these wellfield protection areas
supply the drinking water to residents in central and southern areas of the County.
In 1981 Miami-Dade County adopted the Potable Water Supply Well Protection
Ordinance that established Miami-Dade County wellfield protection areas and regulations within
the wellfield protection areas. The Safe Drinking Water Act (amended 1986 and 1996) mandated
states to implement wellfield protection programs to protect drinking water wells and drinking
water recharge areas. In 1998 the EPA approved Florida's Wellhead Protection Program, which
authorized local governments to implement their own wellfield protection programs. Section 2443 of the Code of Miami-Dade County (the "Code") authorizes the DERM to review all building
permits, certificates of use and occupancy, platting actions and zoning actions for any land use
located within a wellfield protection area. The Director shall issue written approval if the
proposed land use is consistent with the provisions of the Code. Furthermore, no person shall
construct, utilize, operate or occupy any land use within a wellfield protection area without the
prior written approval of the Director of DERM.
The Property is located approximately 1.4 miles (at its closest point) from a production
well within the Southwest Wellfield and approximately 2.6 miles from a production well within
the West Wellfield Interim protection area. The West Wellfield represents one of the County's
most pristine wellfield protection areas and is a source of drinking water for millions of residents
in southern Miami-Dade County. Land uses within this area are subject to stringent land use
controls to protect the underlying drinking water resources. The Southwest Wellfield is one of
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 20
Johnna Blackhair, Acting Director
March 20, 2015
Miami-Dade County's most productive wellfields, accounting for 29% of the county's annual
average pumpage (based on 2013 data).
The existing Golf Course handles, uses and stores hazardous materials and generates and
disposes hazardous waste. DERM operating permits have documented that this facility stores up
to 2,700 gallons of hazardous materials, including 2,000 gallons of fuel and an assortment of
agrochemicals including pesticides and fertilizers. Pesticides applied to the ground or chemicals
such as solvents or fuel discharged onto the ground can percolate, through the soils, into the
groundwater. Once in the groundwater the contaminants dissolve and are transported within the
groundwater column. By definition a Wellhead Protection Area is the surface and subsurface
area surrounding a public water supply well, through which contaminants are reasonably likely
to move toward and reach the well. The groundwater within the wellfield protection area is under
the influence of the draw down from the production well. The rate at which the contaminant
moves once in the groundwater is influenced by its physical and chemical properties as well as
by the characteristics of the aquifer itself. Loss of regulatory jurisdiction over the Property could
result in land uses and activities that inherently increase the potential for catastrophic
consequences to the area's drinking water resources.
Given that the Property is located within an estimated 8,000 feet of a water supply
production well, it is critical for the County to maintain the ability to implement land use control
and monitor land use activities at the Property, including regular inspections and groundwater
monitoring. This will ensure the ability to detect any threats of contamination to the water
supply, take appropriate regulatory action if a threat is detected and ensure the timely
implementation of corrective actions to minimize and mitigate the threat.
ii.
Protection Against Pollution from Hazardous Materials
Pursuant to Section 24-18 of the Code of Miami-Dade County, facilities that are
expected to be a source of pollution are required to obtain and maintain DERM operating
permits. DERM regularly inspects this facility to confirm compliance with permit conditions,
limitations and restrictions. Pursuant to Section 24-29 of the Code, violation of operating permit
conditions or any provisions of Chapter 24 of the Code may result in enforcement.
The Property currently has the following DERM operating permits:
UT-3423: A current and valid storage tank registration placard is determined to
satisfy the requirement of obtaining an operating permit as set forth in Section 2418(12) of the Code of. This site has a current placard for two 1,000 gallon
aboveground tanks for diesel and unleaded gasoline. DERM inspected the site on
January 31, 2014 and found no violations related to the regulated storage tanks.
GPO 5874: Grease Discharge Operating Permit. This operating permit satisfies
the requirement set forth in Section 24-18(18) of the Code. Last few inspections
showed no permit violations and resulted in satisfactory results.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 21
Johnna Blackhair, Acting Director
March 20, 2015
AW 222: Agricultural Waste Operating Permit. This operating permit satisfies the
requirement set forth in Section 24-18(4) of the Code. The last three inspections
were unsatisfactory for housekeeping non-compliance problems. The summary of
violations from 2009 to the present is listed below:
2013 - Waste disposal receipts not available for mechanical repair
shop wastes. Waste disposal receipt not available for sludge from
water recycling system used to clean equipment. Eventually
receipts were submitted and issue closed.
2010 — Improper storage container used for storage of dirty rags.
Containers with hazardous materials not stored in proper secondary
containers. Violations were corrected during inspection and issue
closed.
2009 — Waste disposal receipts not available for parts washer.
Follow-up inspection verified missing receipts.
Transfer of the Property into trust would preclude DERM from inspecting, verifying
compliance to ensure that the hazardous materials and hazardous waste do not contaminate the
County's drinking water supply and requiring remediation if a violation was documented.
iii. Storm Water Drainage System
The proposed trust acquisition raises jurisdictional conflicts regarding the impact on the
water flow rights and maintenance easements that run through the Property.
The Property contains numerous lakes and canals that, together with the SW 64 Street
and SW 60 Street Canals, form a complex infrastructure that provides storm water drainage for
the entire Property and surrounding areas, including major arterial roadways and neighboring
residential and commercial properties.85 The County owns flow right covenants, reservations,
easements and right-of-ways for public drainage purposes.86 The Kendale Lakes North Section 1
Plat (93-1), imposes the following restrictions on the Property:
The canal as shown on the attached Plat is hereby dedicated to the
perpetual use of the public for drainage and other proper purposes.
The drainage easements as shown on the attached plat are hereby
dedicated to the perpetual use of the pubic for the installation and
maintenance of drainage facilities.
85
This interconnectivity is shown on the Miami-Dade County Water Control Plan as recorded in Plat Book
126 Page 39.
86
Flow rights are recorded in Plat Book 93 Page 1, Plat Book 95 Page 59, Plat Book 94 Page 82 and Plat
Book 94 Page 79.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 22
Johnna Blackhair, Acting Director
March 20, 2015
The canal maintenance easement and maintenance access
easements as shown on the attached plat are hereby dedicated to
the perpetual use of the public for these stated purposes.
The use of individual wells will not be permitted in this
subdivision except for air conditioners, swimming pools or
irrigation.
The use of individual sewage disposal systems will not be allowed
in this subdivision.
All bodies of water designated on the attached plat as lakes are
hereby dedicated to the joint and several use of property owners
abutting said lakes, reserving a public right in said lakes as storage
basins for storm water discharge.
There shall be no use made of said lakes which would interfere
with storm water discharge into said lakes from drainage
easements shown on the attached plat. Drainage flow rights across
and through certain lakes in the form of 50 foot driveway
connection from Kendale Lakes Drive (S.W. 68th Street) to tracts
Q&R, as shown on the attached plat, will not be permitted except
at those certain areas designated as utility and common access
easements.
The County's water flow rights ensure connectivity across and through the existing
system of lakes within the Golf Course to provide drainage of public infrastructure (roads) and
were originally approved under the development plats. These flow rights are critical to the proper
functioning of the community and provide an essential source of protection against flooding.87
Any alteration to the drainage system (such as filling in a lake or increasing the amount of
impervious area of the Property, for example) without consultation, agreement, and an
understanding of the area's intertwined drainage system could result in catastrophic flooding of
this entire densely-populated residential development. In addition, any interruption of the SW
64th Street Canal or SW 60th Street Extension Canal, which flow through the Property, would
affect the storm water drainage systems west of the Property that rely on these canals to convey
water.
In flood-prone south Florida, this critical storm water drainage system cannot be
threatened. To do so jeopardizes the lives and property of the residents of the Kendale Lakes
community. Unless the Tribe enters into a cooperation agreement with the County and local
governments regarding the maintenance and preservation of these water flow rights and
easements, accepting the Property into trust places the health and safety of the public at risk.
87
The County collects Storm Water Utility Fees to fund the cost of maintaining the SW 60 Street and SW 64
Street Extension Canals that traverse the Property. The Property is billed $5,500 annually in Storm Water Utility
Fees based on the Property's 176,642 square feet of impervious area (or 114.11 Equivalent Residential Units).
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 23
Johnna Blackhair, Acting Director
March 20, 2015
iv.
Comprehensive Development Master Plan
In accordance with State law, the County enacted a comprehensive development master
plan ("CDMP") for the purpose of setting goals, policies and objectives for the orderly
development of the County to best promote public health, safety, morals, order, convenience,
prosperity and the general welfare.88 A comprehensive plan tends to create predictability and
reliability with regard to land use plans, and in effect maintains and preserves property values.
Removing the Property from the County's jurisdiction will undermine the County's ability to
protect the general welfare of the public, and other property owners within the County will likely
face reduced property values. Here, given that the Property sits inside of the Kendale Lakes
subdivision and is contoured in the shape of a horseshoe, hundreds of homes abut the Golf
Course with many families living inside the pocket of the horseshoe. Inconsistent jurisdictions
and planning decisions in this compact, densely-populated, urban-area will negatively impact the
ability of local governments to provide cohesive and consistent governance.
v.
CDMP Protects Endangered Species
The federally endangered West Indian manatee (Trichechus manatus) is known to
frequent the canals and lakes both in and adjacent to the golf course. These water bodies provide
travel pathways for manatees that move throughout county canals. In addition, secluded lakes
and canals such as those at this location are important refuge for manatees where sensitive
behaviors (mating, birthing and nursing) are likely to occur.
Miami-Dade County affords protection to habitat for state and federal threatened and
endangered species through provisions of the CDMP, which requires that nesting, roosting, and
feeding habitats for state and federal threatened or endangered species shall be protected from
either degradation or destruction. Objective CON-9 of the Conservation Element of the CDMP
mandates the conservation of freshwater fish, wildlife and plants, as well as the preservation of
habitat critical to endangered, threatened or rare species. Policy CON-9B in the Conservation
Element of the CDMP states "All nesting, roosting and feeding habitats used by federal or State
designated endangered or threatened species, shall be protected and buffered from surrounding
development or activities...". In addition, Policy CON-9F requires that the County's planning
for the future development of open space "...include the protection, conservation and/or
restoration of wildlife habitats." This level of protection is greater than that afforded at the either
state or federal level. Additional provisions in the CDMP require Miami-Dade County to
maintain consistent and coordinated planning and management of major natural resources within
areas with multi-government jurisdictional responsibilities. Similarly, Objective Con-8 of the
CDMP and Section 24-49 of the Code of Miami Dade County requires the preservation of tree
resources, specifically through the preservation of specimen trees whenever reasonably possible.
Placement of the Property into trust creates jurisdictional conflicts that would prevent the County
from fulfilling its obligation to its citizens to protect and preserve the habitat of endangered and
threatened species and natural resources.
88
Fla. Stat. § 163.3161.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 24
Johnna Blackhair, Acting Director
March 20, 2015
vi.
Provision of Water and Sewer Services
Similarly, another jurisdictional conflict arises from the provision of water and sewer
services by the County to the Property. The Property's location inside of the subdivision of
Kendale Lakes makes it subject to the platting restrictions. These restrictions forbid individual
water wells and individual sewage disposal systems.89 Currently, the Property is connected to the
Miami-Dade Water and Sewer Department (MDWASD) gravity sewer system. Pursuant to
Section 24-42 of the Code and the requirements of the USEPA/FDEP Consent Decree (Case: NO,
1:12-cv-24400-FAM, effective December 6, 2013) DERM is required to determine sanitary
sewer capacity for all development within the County. Transfer of this Property to trust
jeopardizes the County's ability to determine sanitary sewer capacity and potentially impact the
MDWASD system without utility approval. In addition, in the scenario that connection to the
public sanitary sewer system is bypassed and an on-site sewer treatment system is utilized, the
current land uses would not comply with the Section 24-43.1 of Code, which forbids the use of
septic tanks on the Property. Non-compliance with these regulations jeopardizes the environment
and the health and safety of the residents who share the Golf Course.
vii.
Zoning Regulations
The acquisition of the Property disrupts current and future cohesive zoning regulation by
the County. The County has enacted a zoning code for the purpose of promoting the health,
safety, morals and general welfare of the public. Courts have recognized the problems that can
result from this type of checkerboard ownership of land because it prevents a community from
cohesively regulating activities, such as effective zoning.90 Some specific problems that result
are complications in leasing both trust and non-trust properties, disputes over access and rightsof-way, disruption of large scale planning, regulation of natural resources, and application of
different jurisdictional codes and regulations to different land owners. The Property is not
adjacent to a reservation; instead it is contiguous to the homes of residents of the Kendale Lakes
community. Despite the proximity of these parcels, they will be governed by different
regulations, different land use planning, different jurisdictions, and will have different tax status.
The regulatory and jurisdictional chaos that will result is entirely predictable and preventable.
viii.
The 99-Year Use Restriction Covenant
Another jurisdictional conflict stems from the impact of the trust acquisition on the right
of the Kendale Lakes community to enforce a 99-year restrictive use covenant (the "Golf
Covenant") placed on the Property. The Plat shows that the Golf Covenant requires the land be
used as a golf course for 99 years from the date of inception of this subdivision in 1972. 91
Specifically,
89
See Plat 93-1 restrictions, quoted at IV.3.B.(viii) supra.
See generally City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 200 (2005) ("checkerboard of state
and tribal jurisdiction . . . would 'seriously burde[n] the administration of state and local governments' and would
adversely affect landowners neighboring the tribal patches." (citing Hagen v. Utah, 510 U.S. 399, 421(1994)).
91
See Plat 93-1 at Brief Appx. Tab "C" enclosed at Appx. Tab 12.
90
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 25
Johnna Blackhair, Acting Director
March 20, 2015
Tract "B", as shown on the attached plat, shall not be permitted for
any use other than a golf course, or a country club or operations
incidental thereto. These restrictions shall continue for ninety-nine
(99) years or until released or revised by the Board of County
Commissioners of Dade County, Florida, with the consent of
seventy-five percent (75%) of the owners of property in this
subdivision and the owners of property within 150 feet of the
exterior boundaries of this subdivision.
Nearly sixty years remain before the Golf Covenant expires. A change in use is,
therefore, prohibited unless the County Commissioners consent and 75% of residents and other
neighbors approve the change in use. This Golf Covenant has been relied upon by the owners of
homes abutting the Golf Course and in the vicinity. They have a vested property interest in the
Golf Covenant, and a constitutional right to just compensation upon a governmental taking of
such interest. Yet, it is clear from the Tribe's 2003 Response that it does not intend to be bound
by Golf Covenant.92 The Tribe indicates that it is not required to keep the same use on the
Property. By contrast, it is the County's position that the Golf Covenant is not rendered
unenforceable by the placement of the Property into trust.93 These opposing views on the
enforceability of the restrictive Golf Covenant may lead to years of costly litigation with affected
residents in the event the Tribe attempts to change the Property's use before the Golf Covenant
expires in the year 2071.
In sum, the forgoing jurisdictional conflicts and land use conflicts are unique to the
Property because of the Property's location within a mixed use residential neighborhood in a
densely-populated urban community, its proximity to the County's drinking water table and the
critical system of lakes and canals that provide storm water drainage to a substantial area of
western Miami-Dade County. Given that the Tribe has known of the forgoing impacts for over a
decade since the Application has been pending, and yet has not approached the County with a
proposed agreement to ameliorate them, the County urges the BIA to deny the proposed trust
acquisition and prevent the jurisdictional chaos it poses.
C. The Potential for Gaming and the Resulting Jurisdictional Conflicts Should be
analyzed Under 25 C.F.R. § 151.10(0
Although the Tribe disclaims any intention to engage in gaming on the Property, the
Regional Director consider the potential for gaming, including the significant jurisdictional
conflicts. It is undeniable that placing the land into trust is the first step in obtaining the right to
conduct gaming on the Property. The Tribe's potential ability to conduct gaming in this
subdivision presents serious concerns to the County in terms of traffic, potential air pollution,
92
See Tribe's 2003 Response p. 3 at Appx. Tab 8.
See Friends of East Willits Valley v. County of Mendocino, 101 Cal. App. 4th 191, 123 Cal. Rptr. 2d 708
(Cal. Ct. App. 2002) ("We hold that federal law does not void prior restrictions on land agreed to before the land
passed into trust.").
93
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 26
Johnna Blackhair, Acting Director
March 20,2015
land use, conflicts and safety and law enforcement issues.94 Because of this potential, the County
urges the BIA to analyze the corresponding jurisdictional concerns outlined above in the context
of gaming.
The Tribe should not be permitted to end-run procedures designed to protect local
communities from the impacts of gaming by being equivocal in regard to whether it intends to
conduct gaming on the land, and thereby avoid analysis of potential substantial community
impacts. This end-run approach was rejected in Village of Ruidoso.95 In that case, the tribe
disclaimed any intention to game on the proposed trust land, but the decision found that the
gaming checklist was a relevant concern and should have been further evaluated. One of the
factors influencing the decision in Ruidoso was that the tribe had an existing gaming facility and
the relationship of that facility to the proposed trust acquisition was not explained in the BIA's
decision. Here, the Tribe claims they have no current plans to change the use of the Property;
however, such a statement acknowledges that it may only be a matter of time before the Tribe
attempts to obtain authority to conduct gaming.
V.
The Regional Director Failed to Comply With 25 C.F.R. 151.10(h).
1. The Regional Director Failed To Comply With Part 516 of the Interior
Department Manual.
Federal statutes and regulations governing fee-to-trust acquisitions require an analysis
under the National Environmental Policy Act (NEPA) of 1969, as amended.96 Congress passed
the NEPA to promote the preservation of environmental resources, and encourage the Federal
Government to work "in cooperation" with state and local governments.97 In passing the NEPA,
Congress mandated that all federal agencies follow certain procedures when dealing with
environmental concerns.98 For instance, when determining whether to grant a request for
acquisition of land into trust status, Congress mandated that the Regional Director examine the
"extent to which the applicant has provided information that allows the Secretary to comply with
516 DM 6, appendix 4,99 NEPA Revised Implementing Procedures, and 602 DM 2, Land
Acquisitions: Hazardous Substances Determinations."100 In addition to complying with these
congressional mandates, the Department established its own policy "No consult, coordinate, and
cooperate" with state and local governments, and to "rive consideration to those activities that
succeed in best addressing State and local concerns." 10
94
See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2212 (2012)
(stating, "The Secretary thus takes title to properties with an eye toward how tribes will use it," thereby authorizing
neighbors to raise gaming concerns in objecting to acquisition under 25 U.S.C. § 465).
95
Village of Ruidoso, New Mexico v. Albuquerque Area Director, 32 IBIA 130, 139 (1998).
96
42 U.S.C. § 4321, et seq.; 25 C.F.R. § 151.10(11).
97
42 U.S.C. § 4331(a).
98
See 42 U.S.C. § 4332.
99
516 DM 6 states that bureau requirements for the Bureau of Indian Affairs are located in Chapter 10, which
was formerly Appendix 4.
ioo
25 C.F.R. § 151.10(h).
lot
516 DM 1.2(E).
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 27
Johnna Blackhair, Acting Director
March 20, 2015
The Council on Environmental Quality, created under the NEPA, has established binding
regulations for the purpose of implementing the NEPA.1°2 Under 40 C.F.R. § 1501.03, federal
agencies are required to perform an "environmental assessment" ("EA") in accordance with
regulations of the particular agency. An EA may, in turn, require the preparation of an
"environmental impact statement" ("EIS").1°3 The purpose of an EIS, in part, is to "provide full
and fair discussion of significant environmental impacts and shall inform decision makers and
the public of the reasonable alternatives which would avoid or minimize adverse impacts or
enhance the quality of the human environment."104 In addition, the Department must compile
the required information in good faith to ensure a "reasoned decision after balancing the
risks." 05 To that end, the EIS "must consider all significant environmental consequences that
can reasonably be expected to flow from the decision," and laln EIS cannot safely ignore clear
environmental consequences of the decision ... on the ground that another statement will be
forthcoming later."106
An agency is generally not required to prepare an EA or EIS if the action falls under a
"categorical exclusion."107 However, there are numerous exceptions to the categorical
exclusions, and the Secretary must implement a "checklist" to evaluate each exception.1°8 In
addition, for actions that normally fall under a categorical exclusion, one must nevertheless
ensure that the action has been "subjected to sufficient environmental review," and, if an
exception applies, "further analysis and environmental documents must be prepared."1°9 NEPA
requires "that an agency affirmatively develop a reviewable administrative record supportive of a
decision not to file an impact statement."110
While a short statement of no significant impact may comply with NEPA, it must
nevertheless be "grounded on supporting evidence." To that end, NEPA "commands 'full
good faith consideration of the environment,' not formalistic paper shuffling between agency
desks."112 Further, an agency decision must 'articulate a satisfactory explanation' for its
action," rather than stating a mere conclusion.113 According to the "Exception Checklist for BIA
Categorical Exclusions," if any exception on the list applies, the agency must prepare an EA.
Thus, an agency cannot rely on a categorical exclusion if an exception applies, and, even if the
102
40 C.F.R. § 1500.3.
40 C.F.R. § 1501.4.
104
40 C.F.R. § 1502.1.
105
Suffolk County v. Secretary of Interior, 562 F.2d 1368, 1375 (5th Cir. 1977) (citations omitted).
106
Id. at 1377.
107
40 C.F.R. § 1508.4.
108
516 DM 10.5; 516 DM 2, Appendix 2.
109
40 C.F.R. § 1508.4; 516 DM 2.3(A)(3).
110
Nucleus of Chicago Homeowners Ass 'n v. Lynn, 524 F.2d 225, 231 (7th Cir. 1975) (citing First National
Bank of Chicago v. Richardson, 484 F.2d 1369, 1381 (7th Cir. 1973); Scherr v. Volpe, 466 F.2d 1027, 1032 (7th
Cir. 1972)).
111
Id. (citing Hanly v. Mitchell, 460 F.2d 640, 646 (2'd Cir. 1972), cert. denied, 409 U.S. 990).
112
Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 492 F.2d 1123, 1129 (5th Cir.
1974) (citing Calvert Cliffs' Coordinating Comm. v. Atomic Energy Commission, 449 F.2d 1109, 1113 n. 5 (D.C.
Cir. 1971)).
113
Butte County, Cal. v. Hogen, 610 F.3d 190, *3 (D.C. Cir. 2010) (citing Taurus Records, Inc. v. DEA, 259
F.3d 731, 737 (D.C. Cir. 2001)).
103
* OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 28
Johnna Blackhair, Acting Director
March 20, 2015
agency finds that no exceptions apply, it must still engage in sufficient meaningful review and
provide an explanation to support its conclusion.
In light of the significant environmental concerns described above, Section 151.10(h) of
the Code of Federal Regulations requires that the Regional Director consider "[t]he extent to
which the applicant has provided information that allows the Secretary to comply" with the
provisions of the NEPA. Here, it is unclear what information, if any, the Tribe submitted to the
Regional Director in order to permit a meaningful review of potential environmental concerns.
Moreover, only a Phase 1 Environmental Site Assessment ("Phase 1 ESA") appears on the
record. The County's concerns regarding its drinking water supply, water flow rights and storm
drainage, asserted originally in 2003, were not addressed or even considered in that report.
Notably, in 2008, the Secretary conducted a review of the Regional Director's
preliminary decision analysis and found it to be deficient. 114 Specifically, the Secretary
indicated that the County raised numerous public health and safety concerns, and therefore,
recommended the Regional Director conduct an EA. The purpose for the EA was to "determine
whether or not the change in jurisdiction contemplated by the proposed action will result in a
significant impact on public health and safety."115 The Secretary advised the Regional Director
to "work with the [Tribe] to resolve these issues." The Secretary then directed the Regional
Director to provide a new consultation with the local governments pursuant to 25 C.F.R. §
151.11(b) once the concerns of the local governments were addressed with the Tribe.
The Regional Director, however, did not conduct an EA. Neither did he prepare an EIS.
Instead, the record reveals that only a Phase 1 ESA was performed. The purpose of the Phase 1
ESA is to determine the presence of hazardous materials on the Property to evaluate landowner
liability under environmental regulations, like CERCLA. 116 The Phase 1 ESA is not designed to
evaluate the concerns raised by the County or by NEPA. Even at the direction of the Secretary,
the Regional Director failed to conduct an EIS or an EA. Moreover, the issues were never
addressed with the County. In fact, the County and other local governments were never given an
opportunity for follow up commentary throughout the entire decade that it took this decision to
make its way through the BLk. This is true even though the Secretary directed the Regional
Director to conduct a new consultation with local governments in 2008. 117
Pursuant to 516 DM 1.2(E), the Department of the Interior established its own policy
"[t]o consult, coordinate, and cooperate with other Federal agencies and, particularly, State,
local, Alaska Native Corporations, and Indian tribal governments in the development and
implementation of the Department's plans and programs affecting environmental quality and, in
turn, to give consideration to those activities that succeed in best addressing State and local
concerns." Where an agency fails to follow its own regulations, its actions are reviewable under
the APA.118 Here, for over a decade since the Tribe submitted its Application, the Regional
114
See Memorandum, from Secretary to Regional Director dated April 16, 2008.
See id.
116
See Phase 1 ESA p.3 at Appx. Tab 17.
117
See id.
118
Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 642 (10111 Cir. 1990) (citing Service v. Dulles, 354
U.S. 363 (1957)).
115
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 29
Johnna Blackhair, Acting Director
March 20, 2015
Director has not consulted or coordinated with the County on any environmental-related
concerns, or interviewed local government officials as part of the Phase I ESA. By failing to
conduct an EA or prepare an EIS, the Regional Director violated the agency policy to "give
important weight to environmental factors ... in order to achieve a proper balance between the
development and utilization of natural, cultural, and human resources and the protection and
enhancement of environmental quality."119
2. The Regional Director Failed to Comply With Part 602 of The Interior
Department Manual
In addition, the Phase I ESA contains significant limitations such that it cannot be relied
on in place of a more extensive EA. For example, the Phase 1 ESA indicates under "limitations
and exceptions of assessment" that independent verification of the validity of this information
was beyond the proposed scope. I2° The report also indicates that it was completed by the BIA
and the Tribe, and performed for the explicit use of the Secretary and the user.12I Furthermore,
under the section entitled "Interviews," the report states, "GES conducted interviews with local
government officials."122 However, the report indicates no names of any such officials. By
contrast, the report also states that it interviewed "key individuals in an attempt to obtain . . .
special information regarding possible environmental conditions at the Property."I23 In that
section, the names of those interviewed are prominently displayed. It is clear that GES only
interviewed representatives of the Tribe. The absence of any names of government officials
purportedly interviewed leads to the conclusion that GES never interviewed any local
government officials. Consequently, the Phase I ESA reports were not prepared in a neutral and
impartial manner; as such the reports constitute mere "formalistic paper shuffling. /5124
Courts have cautioned that le]nvironmental impact statements are not confidential or
internal documents for agency eyes alone," and the requirements of NEPA were "intended not
only to insure that the appropriate responsible official considered the environmental effects of
the project, but also provide Congress ... with a sound basis for evaluating the environmental
aspects of the particular project or program."125 Moreover, NEPA requires the agency "to take a
'hard look' at environmental consequences," which includes a requirement to "objectively
evaluate[]" environmental projects:2 Because the Tribe participated in the Phase I ESA
preparation and the report specifically indicates that it lacks independent verification, the
Regional Director failed to fulfill the requirements of 25 C.F.R. § 151.10(h), relevant case law,
as well as the Department policies requiring consultation with local government officials. The
Phase I ESA prepared by the Tribe in conjunction with the BIA is unreliable and does not
address significant environmental hazards and concerns.
119
120
121
122
123
See 516 DM 1.2(D).
Phase 1 ESA p. 7 at Appx. Tab 17.
Id. p. 8.
Id. p. 27.
Id. p. 27.
124
See Environmental Defense Fund, Inc., 492 F.2d at 1129.
ld. at 1140 (citing Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973)).
126
City of Lincoln City, 229 F.Supp.2d at 1126 (citing Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 348, 109 S.Ct. 1835 (1989)).
125
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 30
Johnna Blackhair, Acting Director
March 20, 2015
Given all of these concerns, on remand, the Regional Director should be required to
prepare a new Phase I ESA, an EA and/or an EIS to comply with NEPA' s requirements.
VI.
Defective Notice of Application on Remand
1. Local Residents Object to the Application
Local residents of Kendale Lakes and surrounding areas object to the Property's
placement into trust. The BIA failed to notify local residents regarding the Tribe's Application a
decade ago in 2003. As a result, neighbors of the Property were never given the opportunity to
evaluate the Application and voice their concerns. Fast forward to 2013, upon learning of the
County's appeal, the residents organized to protest the Regional Director's Decision.127 The
group gathered over 110 pages of petitions containing signatures of over 1260 homeowners and
residents of the area to protest placing the Property into trust.128 Residents are concerned over a
potential change in use occurring after the Property has been placed into trust. As the United
States Supreme Court recognized in Match-E-Be-Nash v. Patchak, "neighbors to the 'use' [like
these Kendale Lakes residents] are reasonable—indeed, predictable challengers of the
Secretary's decision: Their interests, whether economic, environmental, or aesthetic, come
within § 465's regulatory ambit."129 Accordingly, the concerns of local residents must be heard.
As stated by the community organizers, they coordinated the petition drive because: "We wanted
our community voice added to the county's action because, to our knowledge, affected residents
never had the chance to speak in behalf of their concerns."130
2. Lack of Notice to Local Authorities on Remand
The BIA failed to give notice of the Application on remand to local authorities and
interested parties in the community. The BIA's Fee-to-Trust Handbook requires the BIA to
inform state and local governments having regulatory jurisdiction over the Property, as well as
any person who has requested notice, that they have 30 days to submit comments on the
Application. The BIA failed to comply with this regulation on remand. Based on the documents
the County recently received in the BIA's FOIA Response, the BIA sent notice of the
Application on remand only to the County Mayor and Florida Gov. Rick Scott. The BIA sent
notice to no other interested party or local authority, despite participation by the State Attorney's
office, who submitted comments in 2003; Florida House Representative for District 119, Janette
M. Nunez; local community leaders and Kendale Lakes homeowners, who have vested property
interests in the Golf Covenant and who participated in the administrative appeal in 2012. These
parties are entitled to raise concerns in objecting to the acquisition under 25 U.S.C. § 465.131
127
See Homeowners' Resolution at Brief Appx. Tab "J" enclosed at Appx. Tab 12.
See Homeowner Petitions at Brief Appx. Tab "K" enclosed at Appx. Tab 12.
129
See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2212 (2012)
(stating, "The Secretary thus takes title to properties with an eye toward how tribes will use it," thereby authorizing
neighbors to raise gaming concerns in objecting to acquisition under 25 U.S.C. § 465).
130
See Richard Yager, Kendale Lakes residents protest designation of Miccosukee Land, Kendall Gazette,
January 22, 2013 at Brief Appx. Tab "L" enclosed at Appx. Tab 12.
131
See Match-E-Be-Nash-She-Wish Band, 132 S.Ct. at 2199.
128
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
Page 31
Johnna BlacIdaair, Acting Director
March 20, 2015
CONCLUSION
The County submits its comments herein, and at the same time, makes a second request
for an extension of time, so that it may supplement the forgoing comments, if necessary, after
receiving the documents requested in its FOIA Request.
Miami-Dade County requests that the BIA deny the Tribe's Application to acquire the
Property in trust under Section 5 of the IRA. The proposed acquisition will create a myriad of
jurisdictional regulatory and land use conflicts that threaten to jeopardize the health, welfare and
safety of the public. Taken together, these factors outweigh any benefit to the Tribe anticipated
from the acquisition, and therefore, support denying the Application under the criteria set forth in
25 C.F.R. 151.10 and 11.
Thank you for the opportunity to comment on this Application. If you have any questions
concerning the County's comments, please contact the undersigned.
Sincerely,
• Ileana Cruz
Assistant County Attorney
Miami-Dade County
IC:ej
Enclosures
cc:
Miami-Dade County Deputy Mayor, Jack Osterholt,
Dir. Regulatory and Economic Resources
Randall Trickey, BIA Eastern Regional Realty Officer
OFFICE OF COUNTY ATTORNEY, MIAM1-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
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