CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File

8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File

1/15

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON :11 Dupont Circle, N.W. :

Washington, D.C. 20036 :

:

Plaintiff, :

:

v. : No. 1:05cv00806 (RMC)

:

NATIONAL INDIAN GAMING COMMISSION :

1441 L Street, N.W. :


:Defendant. :

_________________________________________ :

PLAINTIFFS SUPPLEMENTAL OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), in opposing

the defendant National Indian Gaming Commissions (NIGC) motion for summary judgment,

identified a multitude of areas in which the NIGC failed to provide information necessary to

determine whether the agency conducted a proper search for responsive documents and whether

its claimed exemptions were well-founded. In response, the NIGC challenges the legal and

factual arguments that CREW raised but, with one narrow exception, fails to fill in any of the

blanks in its patently insufficient declarations. In addition, the NIGC now identifies two

additional documents that it discovered as a result of a limited additional search it performed in

three selective offices. CREW hereby responds to this new evidence.

1. The NIGC Has Still Not Demonstrated That It Performed An

Adequate Search Designed To Uncover All Responsive Documents.

In its reply, the NIGC relies on rhetoric and legal citations, untethered to the record

Case 1:05-cv-00806-RMC Document 10 Filed 11/09/2005 PageCase 1:05-cv-00806-RMC Document 11 Filed 11/10/2005 Page


2/15

1 Defendants Reply in Support of Summary Judgment (Ds Reply), pp. 2-3 (emphasis

added).

2 Landmark Legal Foundation v. EPA, 272 F.Supp.2d 59, 66 (D.D.C. 2003) (citation

omitted.

2

before the Court, to substitute for specific facts that would establish the adequacy of the NIGCs

search. But merely reciting the mantra that its declarations are relatively detailed and non-

conclusory,1 will not suffice; the agency must come forward with specific facts that identify the

specific files that were searched, the specific search terms that were used, and the rationale

behind any selective search that the agency conducted. See Plaintiffs Opposition to Defendants

Motion for Summary Judgment (Ps Opp.), pp. 8-10. This the NIGC has yet to do.

To be sure, the NIGC has filled in at least one tiny detail, namely that in its original

search it directed offices to use the names provided in the Sloan letter. Supplemental

Declaration of Regina Ann McCoy (Supp. McCoy Decl.), 6. This bare minimum, however, still

does not afford the Court a sufficient record from which to conclude that the agency conducted a

search reasonably calculated to uncover all responsive documents, the burden it carries under the

Freedom of Information Act (FOIA). See Oglesby v. Dept of the Army, 920 F.2d 57, 68, 287

U.S.App.D.C. 126, 137 (D.C. Cir. 1990). And the NIGC has yet to explain what specific files

were actually searched initially. Instead, it asks the Court to rely solely on the fact that the

agency directed its employees to search all files they consider likely to contain relevant

material. Id. This is clearly an inadequate substitute for the detailed, nonconclusory

declarations that the agency must submit and that must identify what files were searched, what

search terms were used, id., and by whom they were searched.2

That the NIGC has yet to conduct an adequate search is also evidenced by the two



3/15

3 Ds Reply at 5.

3

additional documents it uncovered as a result of an additional search it performed recently. After

a targeted search of the electronic files of three offices those of the Acting General Counsel,

the Director of Congressional and Public Affairs, and the Commissioners the NIGC uncovered

two inter-agency emails. The first is described as a newspaper clipping regarding Abramoff

and a Coushatta tribe, from which internal discussions regarding the newspaper clipping were

redacted. Supp. McCoy Decl., 11. The second one-page document is described only as an

inter-agency email regarding investigations by agencies involved in the federal Indian Gaming

Working Group task force. Id. at 12.

First, the NIGC has failed to explain why it limited its additional search to the files of

only three groups of individuals and why it did not include, for example, other individuals within

those offices or the offices of the Enforcement Division and the field offices. Nor has the NIGC

explained why it limited its additional search to only electronic files. And ,just as significantly,

the NIGC has not explained for what those three offices specifically were asked to search. Thus,

the NIGCs supplemental search has raised more questions than it has answered. But it certainly

has not confirmed that all leads have been pursued, as the NIGC claims.3 Indeed, if this very

narrow and limited supplemental search produced additional responsive documents, it is likely

that a more expanded search would yield yet more documents.

The NIGC also claims that the paucity of documents it has uncovered to date [s]hould

be expected given the NIGCs purportedly limited role in Indian gaming. Ds Reply, p. 6.

According to the NIGC, it takes enforcement action only where tribes do not use their gaming

revenues in conformity with the statutorily prescribed purposes in the Indian Gaming Regulatory



4/15

4

Act (IGRA). Those purposes include tribal gaming revenues used as donations to charitable

organizations. Id.

The problem with this argument, however, is that the underlying focus of the multiple

investigations currently underway and the hearings conducted by the Senate is precisely within

IGRAs scope, namely the substantial contributions that tribes made to Jack Abramoff and

Michael Scanlon from gaming revenues, including donations to several 501(c)(3) organizations.

In fact, the newly discovered email attached as Exhibit A to Ms. McCoys Supplemental

Declaration discusses the millions of dollars spent on the lobbying practices of Abramoff and

Scanlon by tribes such as the Coushatta Tribe of Louisiana, dollars spent without informing

tribe members. Supp. McCoy Decl., Exhibit A. The Indian gaming scandal has been described

as a national disgrace precisely because it appears that greedy lobbyists bilked millions and

millions of casino-generated dollars out of Indian tribes, a matter squarely within the NIGCs

jurisdiction. Accordingly, one of two conclusions can be drawn, neither of which casts the

NIGC in a favorable light. Either the NIGC has failed utterly to carry out its statutory mandate

under IGRA, explaining why it has so few documents responsive to CREWsFOIA request, or

the NIGC has failed to comply with its statutory mandate under the FOIA.

The inadequacy of the NIGCs two searched is reinforced by documents the Committee

on Senate Indian Affairs recently released as part of continuing oversight hearings it has been

conducted on lobbying practices involving Indian tribes. An email from Jack Abramoff

documents that he and Scanlon certainly had the NIGC in their sights, specifically on the issue of

the Alabama Coushattas and the Tiguas, two clients who hired Abramoff to help them reopen

gaming casinos. See Email from Jack Abramoff to Michael Scanlon, November 12, 2001



5/15

4 This email is available from the Senate Committee at http://indian.senate.gov/at page

138.

5

(attached as Exhibit 1).4 Yet to date the NIGC has located only one document, found as part of

a supplemental search, that deals at all with the Coushattas, casting further doubt on the

adequacy of its searches.

2. The NIGC Has Not Demonstrated That The Two Newly

Discovered Documents Are Exempt From Disclosure.

The NIGCs attempt to justify why the two newly discovered documents are exempt,

either in whole or part, from disclosure under the FOIA suffers from the same defects as the

agencys attempt to justify its earlier withholdings. For example, the NIGC redacted from the

first document an email containing a newspaper clipping internal discussions regarding the

newspaper clipping which it claims constitute deliberate process of the NIGC and are

therefore within Exemption 5. But, as with its earlier Exemption 5 claims, the NIGC has failed

to establish what deliberative process is involved, and the role played by the documents in issue

in the course of that process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868,

199 U.S.App.D.C. 272, 286 (D.C. Cir. 1980). Exemption 5 is not available as a blanket of

secrecy over all internal agency discussions. Instead, its purpose is to protect injury to the

quality of agency decisions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Thus,

a necessary predicate to the invocation of Exemption 5 is that there be an actual agency decision-

making process underway, not merely internal ruminations. This the NIGC has failed to

establish.

The NIGCs efforts to place the second newly discovered document beyond the reach of

the FOIA are equally unavailing. The self-described inter-agency email regarding



6/15

6

investigations is being withheld in full pursuant to Exemption 7(A) due to the pending law

enforcement investigations. Supp. McCoy Decl., 12. As CREW has already explained,

however, in the absence of a clear record as to precisely which investigation or investigations the

documents relate, and which specific federal law or laws are the predicate for the investigation,

the NIGC has not met its burden of proving the records were compiled for law enforcement

purposes. See Ps Opp., pp. 13-15. Nor has the NIGC identified what particular kind of record

the second document is, beyond an email regarding investigation. Supp. McCoy Decl., 12.

This is simply insufficient to carry the NIGCs burden of demonstrating interference with law

enforcement proceedings. See Ps Opp., pp. 16-20.

CONCLUSION

For the foregoing reasons, and those set forth in Plaintiffs Opposition to Defendants

Motion for Summary Judgment, Defendants motion should be denied.

Respectfully submitted,

___/s/_______________________

Anne L. Weismann

(D.C. Bar No. 298190)

Melanie Sloan

(D.C. Bar No. 434584)

Citizens for Responsibility and

Ethics in Washington

11 Dupont Circle, N.W.

Washington, D.C. 20036

Phone: (202) 588-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: November 9, 2005



7/15

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

CITIZENS FOR RESPONSIBILITY AND :

ETHICS IN WASHINGTON :11 Dupont Circle, N.W. :


:

Plaintiff, :

:

v. : No. 1:05cv00806 (RMC)

:

NATIONAL INDIAN GAMING COMMISSION :

1441 L Street, N.W. :


:Defendant. :

_________________________________________ :

PLAINTIFFS SUPPLEMENTAL OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), in opposing

the defendant National Indian Gaming Commissions (NIGC) motion for summary judgment,

identified a multitude of areas in which the NIGC failed to provide information necessary to

determine whether the agency conducted a proper search for responsive documents and whether

its claimed exemptions were well-founded. In response, the NIGC challenges the legal and

factual arguments that CREW raised but, with one narrow exception, fails to fill in any of the

blanks in its patently insufficient declarations. In addition, the NIGC now identifies two

additional documents that it discovered as a result of a limited additional search it performed in

three selective offices. CREW hereby responds to this new evidence.

1. The NIGC Has Still Not Demonstrated That It Performed An

Adequate Search Designed To Uncover All Responsive Documents.

In its reply, the NIGC relies on rhetoric and legal citations, untethered to the record


8/15

1 Defendants Reply in Support of Summary Judgment (Ds Reply), pp. 2-3 (emphasis

added).

2 Landmark Legal Foundation v. EPA, 272 F.Supp.2d 59, 66 (D.D.C. 2003) (citation

omitted.

2

before the Court, to substitute for specific facts that would establish the adequacy of the NIGCs

search. But merely reciting the mantra that its declarations are relatively detailed and non-

conclusory,1 will not suffice; the agency must come forward with specific facts that identify the

specific files that were searched, the specific search terms that were used, and the rationale

behind any selective search that the agency conducted. See Plaintiffs Opposition to Defendants

Motion for Summary Judgment (Ps Opp.), pp. 8-10. This the NIGC has yet to do.

To be sure, the NIGC has filled in at least one tiny detail, namely that in its original

search it directed offices to use the names provided in the Sloan letter. Supplemental

Declaration of Regina Ann McCoy (Supp. McCoy Decl.), 6. This bare minimum, however, still

does not afford the Court a sufficient record from which to conclude that the agency conducted a

search reasonably calculated to uncover all responsive documents, the burden it carries under the

Freedom of Information Act (FOIA). See Oglesby v. Dept of the Army, 920 F.2d 57, 68, 287

U.S.App.D.C. 126, 137 (D.C. Cir. 1990). And the NIGC has yet to explain what specific files

were actually searched initially. Instead, it asks the Court to rely solely on the fact that the

agency directed its employees to search all files they consider likely to contain relevant

material. Id. This is clearly an inadequate substitute for the detailed, nonconclusory

declarations that the agency must submit and that must identify what files were searched, what

search terms were used, id., and by whom they were searched.2

That the NIGC has yet to conduct an adequate search is also evidenced by the two


9/15

3 Ds Reply at 5.

3

additional documents it uncovered as a result of an additional search it performed recently. After

a targeted search of the electronic files of three offices those of the Acting General Counsel,

the Director of Congressional and Public Affairs, and the Commissioners the NIGC uncovered

two inter-agency emails. The first is described as a newspaper clipping regarding Abramoff

and a Coushatta tribe, from which internal discussions regarding the newspaper clipping were

redacted. Supp. McCoy Decl., 11. The second one-page document is described only as an

inter-agency email regarding investigations by agencies involved in the federal Indian Gaming

Working Group task force. Id. at 12.

First, the NIGC has failed to explain why it limited its additional search to the files of

only three groups of individuals and why it did not include, for example, other individuals within

those offices or the offices of the Enforcement Division and the field offices. Nor has the NIGC

explained why it limited its additional search to only electronic files. And ,just as significantly,

the NIGC has not explained for what those three offices specifically were asked to search. Thus,

the NIGCs supplemental search has raised more questions than it has answered. But it certainly

has not confirmed that all leads have been pursued, as the NIGC claims.3 Indeed, if this very

narrow and limited supplemental search produced additional responsive documents, it is likely

that a more expanded search would yield yet more documents.

The NIGC also claims that the paucity of documents it has uncovered to date [s]hould

be expected given the NIGCs purportedly limited role in Indian gaming. Ds Reply, p. 6.

According to the NIGC, it takes enforcement action only where tribes do not use their gaming

revenues in conformity with the statutorily prescribed purposes in the Indian Gaming Regulatory


10/15

4

Act (IGRA). Those purposes include tribal gaming revenues used as donations to charitable

organizations. Id.

The problem with this argument, however, is that the underlying focus of the multiple

investigations currently underway and the hearings conducted by the Senate is precisely within

IGRAs scope, namely the substantial contributions that tribes made to Jack Abramoff and

Michael Scanlon from gaming revenues, including donations to several 501(c)(3) organizations.

In fact, the newly discovered email attached as Exhibit A to Ms. McCoys Supplemental

Declaration discusses the millions of dollars spent on the lobbying practices of Abramoff and

Scanlon by tribes such as the Coushatta Tribe of Louisiana, dollars spent without informing

tribe members. Supp. McCoy Decl., Exhibit A. The Indian gaming scandal has been described

as a national disgrace precisely because it appears that greedy lobbyists bilked millions and

millions of casino-generated dollars out of Indian tribes, a matter squarely within the NIGCs

jurisdiction. Accordingly, one of two conclusions can be drawn, neither of which casts the

NIGC in a favorable light. Either the NIGC has failed utterly to carry out its statutory mandate

under IGRA, explaining why it has so few documents responsive to CREWsFOIA request, or

the NIGC has failed to comply with its statutory mandate under the FOIA.

The inadequacy of the NIGCs two searched is reinforced by documents the Committee

on Senate Indian Affairs recently released as part of continuing oversight hearings it has been

conducted on lobbying practices involving Indian tribes. An email from Jack Abramoff

documents that he and Scanlon certainly had the NIGC in their sights, specifically on the issue of

the Alabama Coushattas and the Tiguas, two clients who hired Abramoff to help them reopen

gaming casinos. See Email from Jack Abramoff to Michael Scanlon, November 12, 2001


11/15

4 This email is available from the Senate Committee at http://indian.senate.gov/at page

138.

5

(attached as Exhibit 1).4 Yet to date the NIGC has located only one document, found as part of

a supplemental search, that deals at all with the Coushattas, casting further doubt on the

adequacy of its searches.

2. The NIGC Has Not Demonstrated That The Two Newly

Discovered Documents Are Exempt From Disclosure.

The NIGCs attempt to justify why the two newly discovered documents are exempt,

either in whole or part, from disclosure under the FOIA suffers from the same defects as the

agencys attempt to justify its earlier withholdings. For example, the NIGC redacted from the

first document an email containing a newspaper clipping internal discussions regarding the

newspaper clipping which it claims constitute deliberate process of the NIGC and are

therefore within Exemption 5. But, as with its earlier Exemption 5 claims, the NIGC has failed

to establish what deliberative process is involved, and the role played by the documents in issue

in the course of that process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868,

199 U.S.App.D.C. 272, 286 (D.C. Cir. 1980). Exemption 5 is not available as a blanket of

secrecy over all internal agency discussions. Instead, its purpose is to protect injury to the

quality of agency decisions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Thus,

a necessary predicate to the invocation of Exemption 5 is that there be an actual agency decision-

making process underway, not merely internal ruminations. This the NIGC has failed to

establish.

The NIGCs efforts to place the second newly discovered document beyond the reach of

the FOIA are equally unavailing. The self-described inter-agency email regarding


12/15

6

investigations is being withheld in full pursuant to Exemption 7(A) due to the pending law

enforcement investigations. Supp. McCoy Decl., 12. As CREW has already explained,

however, in the absence of a clear record as to precisely which investigation or investigations the

documents relate, and which specific federal law or laws are the predicate for the investigation,

the NIGC has not met its burden of proving the records were compiled for law enforcement

purposes. See Ps Opp., pp. 13-15. Nor has the NIGC identified what particular kind of record

the second document is, beyond an email regarding investigation. Supp. McCoy Decl., 12.

This is simply insufficient to carry the NIGCs burden of demonstrating interference with law

enforcement proceedings. See Ps Opp., pp. 16-20.

CONCLUSION

For the foregoing reasons, and those set forth in Plaintiffs Opposition to Defendants

Motion for Summary Judgment, Defendants motion should be denied.

Respectfully submitted,

___/s/_______________________

Anne L. Weismann

(D.C. Bar No. 298190)

Melanie Sloan

(D.C. Bar No. 434584)

Citizens for Responsibility and

Ethics in Washington

11 Dupont Circle, N.W.

Washington, D.C. 20036

Phone: (202) 588-5565

Fax: (202) 588-5020

Attorneys for Plaintiff

Dated: November 9, 2005


13/15



14/15



15/15


CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File

Documents

Transcript of CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File