GM 19-001

Comanche v. Zinke 10th Circuit Decision Denying Preliminary Injunction

In an unpublished decision issued December 14, 2018, the Tenth Circuit Court of Appeals affirmed the denial of a preliminary injunction requested by the Comanche Nation of Oklahoma (“Comanche Nation”) to prevent the opening of a Chickasaw Nation (“Chickasaw Nation”) casino. The Court stated that, “Comanche Nation is unlikely to succeed on the merits of its challenge to a decision by the Secretary of the Interior (“the Secretary”) to take land into trust for the benefit of Chickasaw Nation and approve the land for gaming.”

On November 13, 2017, the U.S. District Court for the Western District of Oklahoma denied the Comanche Nation’s request for a preliminary injunction to prevent the opening of a Chickasaw Nation casino on land recently taken into trust. The Comanche Nation had challenged the Secretary’s decision to take the land into trust as unauthorized by law or otherwise arbitrary and capricious. The court held that the Comanche Nation did not make the necessary showing of a likelihood of success on the merits.

The Comanche Nation had challenged the trust determination on several grounds, including the following:

1. The Comanche Nation argued that Secretary’s regulations were inconsistent with Congressional intent and arbitrarily departed from prior regulations or practice. The Tenth Circuit agreed with the District Court’s conclusion that the Comanche Nation’s claims were barred by the statute of limitations for challenging enacted regulations.

2. The Tenth Circuit found that the Secretary’s regulations and interpretations were reasonable and, therefore, entitled to deference.

3. The Tenth Circuit rejected the Comanche Nation’s contention that site of the Chickasaw Nation’s casino may be ineligible for gaming if the Chickasaw Nation’s reservation was never actually disestablished. This aspect of the Comanche Nation’s argument relied on Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted 138 S. Ct. 2026 (2018). However, the Tenth Circuit emphasized that, “Our Murphy panel concluded the Creek Reservation remains extant, but it did not address the status of the Chickasaw Reservation at all.” The Court further noted that if the Chickasaw Nation’s reservation had not been disestablished, then the casino site would remain within the bounds of that reservation, in which case, the Secretary could conduct an “on-reservation” acquisition under 25 C.F.R. §§ 151.3(a)(1) and 151.2(f).

4. Lastly, the Tenth Circuit rejected the Comanche Nation’s arguments under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. Comanche Nation argued that the Secretary failed to consider the economic effects the new Chickasaw Nation casino would have on the Comanche Nation’s existing casino. The Court cited prior case law holding that “socioeconomic impacts, standing alone, do not constitute significant environmental impacts cognizable under NEPA.”

Please let us know if we may provide additional information about Comanche v. Zinke.