Nos. 11-246 & 11-247

FILED

IN THE

KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ETAL.,Petitioners,

and

MATCH-E-BE-NASH-SHE-WISH BAND OFPOTTAWATOMI INDIANS,

Petitioner,V.

DAVID PATCHAK, ETAL.Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF OF WAYLAND TOWNSHIP, WAYLANDAREA CHAMBER OF COMMERCE ANDOTHER LOCAL GOVERNMENTS AND

BUSINESS ASSOCIATIONS AS AMICI CURIAESUPPORTING PETITIONERS

ROBERT A. LONG, JR.ROSS B. GOLDMANCOVINGTON & BURLING LLP1201 Pennsylvania Ave., NWWashington, DC 20004(202) 662-6000rlong@cov.com

MICHAEL D. HOMIERCounsel of Record

LAURA J. GARLINGHOUSEFOSTER, SWIFT, COLLINS& SMITH, P.C.

1700 E. Beltline Ave., NESuite 200Grand Rapids, MI 49525(616) 726-2200mhomier@fosterswift.com

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..............................................i

TABLE OF AUTHORITIES .....................................iii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OFARGUMENT ....................................................3

ARGUMENT ...............................................................7

The Court of Appeals’ Decision Threatens theCritical Economic Benefits That Flow FromDevelopment Of The Trust Lands ..............................7

The Banffs Development of the TrustLands Provides Substantial Benefits toLocal Businesses and Governments ................7

Ao Development of the Trust LandsHas Created Hundreds of NewJobs ........................................................7

Bo Development of the Trust LandsHas Generated Other SignificantEconomic Benefits .................................8

Co Development of the Trust LandsHas Increased Local GovernmentRevenues ................................................9

ii

II. The Decision of the Court of AppealsUndermines the Benefits Derived FromEconomic Development of the TrustLands ..............................................................14

CONCLUSION ..........................................................18

iii

TABLE OF AUTHORITIES

CASES PAGE

Mich. Gambling Opposition (MichGo) v. Norton,477 F. Supp. 2d I (D.D.C. 2007) ...........................5

Mich. Gambling Opposition v. Kempthorne,525 F.3d 23 (D.C. Cir. 2008) ..................................5

Regan v. New York,349 U.S. 58 (1955) ...............................................17

Republic of Austria v. Altmann,541 U.S. 677 (2004) .............................................17

STATUTES

25 U.S.C. § 467 ............................................................425 U.S.C. § 2719 ..........................................................4Mich. Comp. Laws § 41.735 ......................................16Mich. Comp. Laws § 141.107 ....................................16Mich. Comp. Laws § 333.12752 ................................15Quiet Title Act, 28 U.S.C. § 2409a .............................5

OTHER AUTHORITIES

70 Fed. Reg. 25,596 (May 13, 2005) ...........................4Janice Allen, Casino’s Success Causing Gun

Lake to Add 200 Jobs, Fox 17 TV (Mar.21, 2011) .................................................................7

Julia Bauer, Unemployment Rises Again inWest Michigan; Regional Labor Pool AlsoShrinks, Grand Rapids Press (Apr. 23,2009) .......................................................................3

iv

Bethany Biron, Granholm to Talk MichiganEconomy at State of the State Address,Mich. Daffy (Feb. 2, 2010) .....................................3

Pete Daly, Gun Lake Casino to BreakGround Sept. 17, Grand Rapids Bus. J.(Aug. 31, 2009) .......................................................9

Lisa LaPlante, No More Pay-to-Play forWayland Wildcats, Thanks to Casino, Fox17 News (Aug. 24, 2011) ......................................11

Ryan Lewis, Casino Revenue Boosts Budgetsfor Schools, Townships, The CommercialRecord (Jan. 4, 2012) ............................... 12, 13, 16

Ryan Lewis, Wayland School, Township WinBig Checks, Allegan Cnty. News (July 27,2011) ...........................................................8, 12, 13

Julie Makarewicz, WayIand Union SchoolDistrict Finds Uses for Gun Lake CasinoPayment, Grand Rapids Press (Aug. 23,2011) ...............................................................10, 11

Sheila McGrath, Casino Payments Go toLocal Governments Earlier ThanPlanned, Advance Newspapers (Dec. 29,2011) ...............................................................12, 13

Susan Saulny & Monica Davey, NewEconomic Fears Arise in Michigan, N.Y.Times (Nov. 22, 2008) ............................................3

Lindsey Smith, Gun Lake Casino’s FirstPayout to State, Local Governments TopExpectations, Mich. Radio, (June 2, 2011) ..........11

Herb Woerpel, Gun Lake Casino Disburses$7".8 Million in Slot Profits Locally,Statewide, Penasee Globe (Dec. 1, 2011) 10, 11, 12

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Herb Woerpel, Tribe Secures $165 MillionLoan for Gun Lake Casino, Penasee Globe(July 20, 2010) .......................................................8

County-Level Unemployment and MedianHousehold Income for Michigan, USDAEconomic Research Service (updated Dec.2, 2011) ..................................................................8

On Labor Day, High Unemployment inMichigan, but Hope [or Better Things,Grand Rapids Press (Sept. 4, 2011) ......................3

Press Release, Gun Lake Casino, Gun LakeTribe and Gun Lake Casino Donate PoliceK-9 to Allegan County SheriffsDepartment (Aug. 25, 2011) ...............................13

Gun Lake Casino Opening Weekend Draws aFull House, Sw. Mich.’s Second Wave(Feb. 17, 2011) .............................................8, 9, 16

Wayland Casino to Break Ground Sept. 17,Wood TV 8 (Sept. 3, 2009) ....................................9

Wayland Twp Board Talks Casino Plans,Wood TV 8 (Feb. 2, 2009) ....................................12

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INTEREST OF AMICI CURIAE

Amici curiae are local government entities andbusiness associations in southwest Michigan, aregion that includes the 147-acre tract of land,known as the "Bradley Tract," at issue in this case.1

The United States holds the Bradley Tract in trustfor Petitioner Match-E-Be-Nash-She-Wish Band ofPottawatomi Indians (the "Band"). The Band’seconomic development of the Bradley Tract providessubstantial and much-needed economic benefits toamici and the local communities they serve.

Amici Wayland Township, Allegan County,Allegan Area Educational Service Agency, WaylandUnion Schools, City of Wayland, Dorr Township,Martin Township, Hopkins Township, and YankeeSprings Township are local government entities insouthwest Michigan that are engaged in cooperativeefforts to foster economic development in an areathat includes the Bradley Tract. Several of the amicilocal government entities have entered into arevenue sharing agreement with the Band pursuantto a compact between the Band and the State ofMichigan that has been approved by the Secretary ofthe Interior on behalf of the United States. Amicus

1 Pursuant to this Court’s Rule 37.6, the amici affirm that nocounsel for a party authored this brief in whole or in part, thatno counsel or party made a monetary contribution intended tofund the preparation or submission of this brief, and that noperson other than the amici or their counsel made such amonetary contribution. The parties have consented to the filingof this brief, and letters of consent have been filed with theClerk.

2

Deputy Sheriffs Association of Michigan is anassociation of sheriffs’ deputies whose membersbenefit from economic development of the BradleyTract, which has generated revenues that are beingused to hire and retain law enforcement officers.

Amici Wayland Area Chamber of Commerce,Allegan Area Chamber of Commerce, KalamazooRegional Chamber of Commerce, Dorr BusinessAssociation, West Michigan Hispanic Chamber ofCommerce, Barry County Chamber of Commerce,Barry County Economic Development Alliance, andGun Lake Business Association are businessassociations whose members benefit from the Band’seconomic development of the trust lands. For thelocal business entities, as for the local governmententities, uncertainty over the status of the BradleyTract created by the threat of continuing litigationdeters investment and makes reliable long-termplanning impossible. The businesses represented bythe amici associations would suffer a devastatingloss of revenue and jobs if the federal government’sdecision to take the Bradley Tract into trust werereversed and, as a result, the revenues generated bythe Tribe’s economic development efforts were tocease.

Amici submit this brief to explain the natureand extent of the benefits that development of theBradley Tract has conferred on the local community,the importance of those benefits to local governmentsand businesses, and the substantial harm that wouldbe caused by a legal regime that leaves the status oftrust lands open to challenge over a long period oftime.

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INTRODUCTION ANDSUMMARY OF ARGUMENT

Michigan’s economic troubles in recent yearshave been the subject of national headlines.2 Facedwith high unemployment and a decimatedautomotive industry, Michigan has been described as"ground zero in the national economic downturn.’’~Local governments and business associations insouthwest Michigan have worked diligently toincrease economic activity and job growth, butrecovery has been slow.4

The development of the Bradley Tract hasprovided a much-needed boost to southwestMichigan’s battered economy. In February 2011, theBand completed and opened a $165 million gamingfacility, known as Gun Lake Casino, on the Tract.The facility generates critically-needed economicbenefits for local communities and businesses.

2 See, e.g., Bethany Biron, Granholm to Talk Michigan Economyat State of the State Address, Mich. Daily (Feb. 2, 2010),http://www.michigandaily.com/content/granholm-give-last-state-state; Susan Saulny & Monica Davey, New EconomicFears Arise in Michigan, N.Y. Times (Nov. 22, 2008),http://www.nytimes.com/2008/11/23/us/23michigan.html.3 Saulny & Davey, supra note 2.

4 On Labor Day, High Unemployment in Michigan, but Hope forBetter Things, Grand Rapids Press (Sept. 4, 2011),http://www.mlive.com/opinion/grand-rapids/index.sslY2011/09/on_labor_day_high_unemployment.html; Julia Bauer,Unemployment Rises Again in West Michigan; Regional LaborPool Also Shrinks, Grand Rapids Press (Apr. 23, 2009),http://www.mlive.com/business/west-michigargindex.ssf/2009/04/unemployment_rises_again_in_we.html.

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The opening of the gaming facility waspreceded by a decade-long process. In 2001, theBand submitted a fee-to-trust application to theSecretary of the Interior requesting that the BradleyTract be taken into trust under the IndianReorganization Act for future use as a gamingfacility. See 25 U.S.C. §§ 467, 2719. At the time, theBradley Tract was the site of an abandonedmanufacturing facility.

At the conclusion of an administrative reviewprocess, the Secretary issued a public notice("Notice") that the Bradley Tract would be taken intotrust for the Band. See 70 Fed. Reg. 25,596, 25,596-97 (May 13, 2005). As required by regulation, theNotice announced a 30-day waiting period beforetitle to the land would pass to the United States. Id.at 25,596. The purpose of the waiting period is "toafford interested parties the opportunity to seekjudicial review of the final administrative decisionsto take land in trust for Indian tribes and individualIndians before transfer of title to the propertyoccurs." Id. The Notice clearly stated that theBradley Tract would be "used for the purpose ofconstruction and operation of a gaming facility." Id.

During the 30-day waiting period, an anti-gambling organization named Michigan GamblingOpposition ("MichGO") filed suit in the U.S. DistrictCourt for the District of Columbia challenging theSecretary’s decision to take the Bradley Tract intotrust. No other suit challenging the Secretary’sdecision was filed within the 30-day window set forthin the Notice. Both the district court and the court ofappeals considered MichGO’s claims and rejected

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them. Mich. Gambling Opposition (MichGo) v.Norton, 477 F. Supp. 2d 1 (D.D.C. 2007), aff’d onother grounds by Mich. Gambling Opposition v.Kempthorne, 525 F.3d 23 (D.C. Cir. 2008). Followingthe court of appeals’ decision, the Secretary took titleto the Bradley Tract and placed the land into truston January 30, 2009. The Band proceeded with itsplans to develop the trust lands and opened thegaming facility on February 10, 2011.

The Band’s economic development efforts onthe trust lands have directly created 900 new jobsand infused area hotels, restaurants, and otherbusinesses with much-needed customers andrevenues. Additionally, the Band has entered into arevenue sharing agreement with regionalgovernments that provides essential resources forschools, roads, sewer and water systems, publicsafety programs, and other critical needs. TheBand’s economic development efforts have facilitatedintergovernmental service-sharing agreements thatare critical to the region’s recovery.

The court of appeals’ decision in this casethreatens to unravel these economic benefits and theprogress they have fostered. The D.C. Circuit heldthat (i) Respondent Patchak has prudential standingto challenge the Secretary of the Interior’s authorityto place the land into trust, even though the suit wasfiled years after expiration of the 30-day window setforth in the Notice and (ii) the United States is notimmune from Patchak’s suit under the Quiet TitleAct, 28 U.S.C. § 2409a. If successful, Patchak’s suitwould divest the United States of title to the trustlands. Absent special legislation, the gaming facility

on the Bradley Tract would be required to close itsdoors. The possibility of such a disastrous result,even after the United States has taken title to theBradley Tract under the Indian Reorganization Act,creates substantial economic uncertainty andinstability for local governments and businesses insouthwest Michigan.

It is difficult for amici to engage in long-termplanning, develop and approve budgets, andimplement strategies for business growth andeconomic development when a significant source ofprojected revenue is at risk. For example, localgovernment amici are pursuing new initiatives,including initiatives requiring significantexpenditures that will likely be financed throughmunicipal bonds and repaid over time, that require adependable source of revenues from the trust lands.Likewise, businesses that depend on additionaldemand for their products and services as a result ofthe development of the trust lands face additionaluncertainty in deciding whether to expand and hireadditional workers.

If Respondent’s suit is permissible, other trustlands across the United States will be susceptible tosimilar instability and uncertainty. Under the courtof appeals decision, title to any trust lands could beattacked by any person who alleges that his or herquality of life was adversely impacted by events thatflowed from U.S. ownership of particular trust land.This would inflict substantial economic uncertaintyon businesses and governments across the country.As a result of this uncertainty and instability, jobs

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may be lost and government services may bedelayed, scaled-back, or eliminated altogether.

ARGUMENT

The Court of Appeals’ Decision Threatens theCritical Economic Benefits That Flow FromDevelopment Of The Trust Lands.

I. The Band’s Development of the TrustLands Provides Substantial Benefits toLocal Businesses and Governments.

The Band’s development of the trust lands isproviding significant and much-needed economicbenefits to local governments, businesses, andcommunity residents. These benefits include jobcreation, other economic benefits, and improvedgovernment services.

Ao Development of the Trust Lands HasCreated Hundreds of New Jobs.

The economic development of the BradleyTract created 900 new jobs in 2011.5 These new jobsare vitally needed. Allegan County, in which thetrust lands are located, reported an 11.9 percentunemployment rate in 2010 (more than twopercentage points higher than the national

5 Janice Allen, Casino’s Success Causing Gun Lake to Add 200Jobs, Fox 17 TV (Mar. 21, 2011),http://www.foxl7online.com/news/fox 17-new-casino-adding-jobs-casinos-success-causing-gun-lake.to-add-200-jobs.20110321,0,6883335.story (noting that Gun Lake Casinoemploys more than 900 workers).

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unemployment rate),e In addition to these 900 jobs,approximately 750 skilled workers -- includingplumbers, electricians, carpenters, and sheet metalworkers7 -- were employed during the constructionof the $165 million facility.8 Development of thetrust lands has also indirectly created an estimated1,000 outside vendor jobs.9 The creation of new jobshas resulted in an expanded tax base for localgovernments and increased demand for goods andservices provided by local businesses.1°

Bo Development of the Trust Lands HasGenerated Other Significant EconomicBenefits.

The Band estimates that, as a result of itsdevelopment of the trust lands, it will spendapproximately $30 million annually to purchase

6 County-Level Unemployment and Median Household Incomefor Michigan, USDA Economic Research Service (updated Dec.2, 2011), http://www.ers.usda.gov/data/unemploymentJ, then"Michigan" hyperlink.v Gun Lake Casino Opening Weekend Draws a Full House, Sw.Mich.’s Second Wave (Feb. 17, 2011), http ://swmichigan.secondwavemedia.com/devnews/casino0217.aspx.8 Herb Woerpel, Tribe Secures $165 Million Loan for Gun LakeCasino, Penasee Globe (July 20, 2010),http ://www.mlive.com/penaseeglobe/index.ssf/2O l O/O7/tribe_secures_165_million_loan.html.9 Gun Lake Casino Opening Weekend, supra note 7.

~o Ryan Lewis, Wayland School, Township Win Big Checks,Allegan Cnty. News (July 27, 2011), http://www.allegannews.com/articles/2011/07/28/local_news/2.txt.

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vendor goods and services.11 Most of those purchaseswill be made from businesses in southwest Michigan,providing a further substantial boost to the localeconomy.

In addition, the Band estimates that thegaming facility will create 60,000 new guest staysper year at area hotels, generating an additional $4.4million in revenues for hotel operators.13 Other localbusinesses, such as restaurants, gas stations,drycleaners, and landscapers, can expect similarincreases in demand for their services.

C. Development of the Trust Lands HasIncreased Local GovernmentRevenues.

In May 2007, the Band and the State ofMichigan entered into a Revenue Sharing Agreement("Agreement"), which was approved by the Secretaryof the Interior. Under the Agreement, the Band paysa percentage of the revenues from the gaming facilityto local government entities located in closeproximity to the trust lands.

~i Pete Daly, Gun Lake Casino to Break Ground Sept. 17, GrandRapids Bus. J. (Aug. 31, 2009), http://www.grbj.com!GRBJ/ArticleArchive/2009/August/August+31/BREAKING+NEWS.htm.

~ Gun Lake Casino Opening Weekend, supra note 7.13 Wayland Casino to Break Ground Sept. 17, Wood TV 8 (Sept.3, 2009), http://www.woodtv.cora/dpp/news[locaYgun_lake_region/Wayland_casino_to_break_ground_September_l 7.

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Pursuant to the Agreement, the Band and tenpublic agencies (each of which has joined this brief asan arnicus curiae) created a Local Revenue SharingBoard ("the Board"). The Board is an independentlegal entity charged with establishing criteria andformulas for distributing a portion of the revenuesfrom the gaming facility to the local governments.

Distributions are made every six months. Thefirst distribution was paid out in June 2011, after thegaming facility had been in operation for just twomonths. Local governments received $514,871, andthe State of Michigan received more than $2 million.Local governments use the revenues generated bythe trust lands to fund a variety of governmentprograms and initiatives.

For example, Wayland Township will use partits first distribution to hire two additional patroldeputies to provide public safety services.14 WaylandUnion School District used $194,628.31 from the firstdistribution to :

¯ cut preschool tuition rates by one-third;15

14 Herb Woerpel, Gun Lake Casino Disburses $7.8 Million inSlot Profits Locally, Statewide, Penasee Globe (Dec. 1, 2011)http://www.mlive.com/penaseeglobe/index.ssf/2011/12/gun_lake_casino_disburses_78_m.html.15 Julie Makarewicz, Wayland Union School District Finds Usesfor Gun Lake Casino Payment, Grand Rapids Press (Aug. 23,2011), http://www.mlive.com/wayland/2011/08/wayland_union_school_district.html.

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¯ eliminate a $100 per sport fee that highschool students previously wererequired to pay in order to participate inschool athletics;16

¯ establish a public improvement fund,which was used to the paint the ceilingof the high school gymnasium;~7

¯ develop a scholarship fund forgraduating seniors to encouragefamilies to stay in the Wayland area;~sand

¯ fund maintenance and capital projects,thereby freeing up funds for academicservices.19

Local governments have relied on theAgreement to plan critical infrastructure projectsand other initiatives that would not have beenpossible absent the Band’s continued development ofthe trust lands. Wayland Township, for example, is

16 Lisa LaPlante, No More Pay-to-Play for Wayland Wildcats,Thanks to Casino, Fox 17 News (Aug. 24, 2011),http://www.foxl7online.com/news/foxl7-wayland-schools-no-more-paytoplay-for-wayland-wildcats-thanks-to-casino-20110824,0,4518511.story; see also Makarewicz, supra note 15.17 Woerpel, supra note 14.

18 Lindsey Smith, Gun Lake Casino’s First Payout to State,Local Governments Top Expectations, Mich. Radio, (June 2,2011),http://www.michiganradio.org/post/gumlake.casino%E 2%80%99s-first-payout-state-local-governments-top-expectations.19 Makarewicz, supra note 15.

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planning to construct a new water and sewertreatment system that would replace the currentseptic system and provide significant environmentalbenefits.~° Wayland Township used its firstdistribution under the Agreement to undertake afeasibility study in connection with the proposedwater and sewer system and enter into an optioncontract to buy property upon which to locate thenew sewer and water system?1

The second distribution under the Agreementwas made in November 2011 and totaled $1.56million for local governments and $6.24 million forthe State of Michigan.~~- Local governments intendto use this distribution to fund public works andservices projects. For example, Martin Townshipmay use its share to purchase a new fire truck.~3Allegan County will use its distribution to avoidcutting services to residents and to fund services forseniors, road maintenance projects, and the county’sveteran relief fund.~-4 Dorr Township hopes to invest

~o Wayland Twp Board Talks Casino Plans, Wood TV 8 (Feb. 2,2009), http://www.woodtv.com/dpp/news/Wayland_Twp_board_talks_casino_plans.21 Lewis, supra note 10.

2~ Woerpel, supra note 14.

~ Sheila McGrath, Casino Payments Go to Local GovernmentsEarlier Than Planned, Advance Newspapers (Dec. 29, 2011),http://www.rnlive.corn/wayland/index.ssf/2011/12/casino_payrnents_go_to_local_go.htrnl.~4 Ryan Lewis, Casino Revenue Boosts Budgets for Schools,Townships, The Commercial Record (Jan.4, 2012),http://www.allegannews.com/articles/2012/01/05/

(continued...)

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in projects that will benefit the whole community,such as playgrounds and parks.25 WaylandTownship schools will make capital improvements,strengthen its scholarship program, and replacesome high school lockers, among other things.2s

The Agreement has facilitated the efforts oflocal communities to improve their public safetyprograms and engage incollaborativeintergovernmental agreements. For example,Wayland Township is using a portion of the fundsgenerated by the trust lands to fund a contract withthe Allegan County Sheriffs Department underwhich Allegan County will provide two deputiesdedicated to patrolling Wayland Township.27 Thiscooperative venture strengthens intergovernmentalcooperation in addition to improving public safety.

The Tribe’s economic development of the trustlands has provided benefits to local communities inaddition to those provided under the Agreement. Forexample, the Band and Gun Lake Casino donated$12,000 to the Allegan County Sheriffs Departmentfor the purchase of a police dog that can be used for"search and rescue tactics, locating a lost child, andidentifying illegal substances.’’2s The donation

local_news/1.txt.2{~ McGrath, supra note 23.

26 Lewis, supra note 24.

27 Lewis, supra note 10.

28 Press Release, Gun Lake Casino, Gun Lake Tribe and GunLake Casino Donate Police K-9 to Allegan County Sheriffs(continued...)

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reflects a newly-forged partnership between theBand and local law enforcement that promises tobenefit all of the area’s residents.

II. The Decision of the Court of AppealsUndermines the Benefits Derived FromEconomic Development of the TrustLands.

The court of appeals’ decision threatens tocause significant economic hardship for residents ofsouthwest Michigan by undoing the benefits thathave resulted from economic development of thetrust lands. If the Court holds that Respondent isauthorized to proceed with this litigation, theBradley Tract could be taken out of trust, and as aresult the gaming facility could be shut down. Nine-hundred casino workers would lose their jobs, aswould many other workers who are employed bybusinesses that provide goods and services to thegaming facility and its patrons. The casino wouldcease to purchase $30 million in goods and serviceseach year, and area hotels would lose 60,000 newguest stays per year. Many local businesses wouldsuffer, and some would not survive. Localgovernments would face a significant loss ofrevenues and substantially decreased demands forservices.

Even the risk that litigants such asRespondent may divest the United States of title to

Department (Aug. 25, 2011), http://www.mbpi.org/PDF/News/Press%20Releases]PR_K-9_Donation_8-25-11.pdf.

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the Bradley Tract creates a significant obstacle torealizing the full benefits of the Band’s economicdevelopment efforts. In order for businesses to makelong-term investments, they must be reasonablyconfident that the investment will be worthwhile. Ifbusinesses are uncertain about the trust status ofthe Bradley Tract, they may delay or scale back theirinvestment plans, thus reducing the positive effectsof the Band’s development of the Bradley Tract. Forexample, a hotel operator may put off plans to builda new hotel, or to expand an existing hotel, if itconcludes that the status of the trust land, andtherefore the casino, is uncertain.

Similarly, local governments must be able torely on the federal government’s decision to take theBradley Tract into trust in order to undertakeinfrastructure improvements and adopt other long-term programs. Local governments cannot engage inresponsible planning and budgeting if they do notknow whether Gun Lake Casino will continue tooperate. Three examples illustrate the problem.

First, as noted above, Wayland Township isplanning to construct a $17 million environmentally-friendly wastewater treatment facility. The facilitywould virtually eliminate the need for area homes touse septic systems and would, as a result, advanceMichigan’s policy (set forth in a statute) favoringsanitary sewer systems over septic systems. SeeMich. Comp. Laws § 333.12752. The continuedoperation of Gun Lake Casino is central to WaylandTownship’s efforts to build this facility. TheTownship has a purchase option on the land onwhich the system would be built and is currently in

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the process of extending that option; it will notexercise that option if the gaming facility closes.Although the revenue sharing distributions will notdirectly and fully fund the construction of thesystem, the expected revenue distributions could beused as collateral to secure the necessary financing.29

Second, and related to the example above, isthe fact that to fund the new wastewater treatmentplant, Wayland Township will need to issue revenuebonds or special assessment bonds. The Townshipcannot issue those bonds without knowing whetherthe Band m the largest prospective user of theimprovements w will continue to operate the casinoand pay the fees that will enable the Township torepay the principal and interest on the bonds. SeeMich. Comp. Laws §§ 141.107, 41.735.

Third, there is space to expand Gun LakeCasino if demand allows.3° Expansion would likelyresult in further economic benefits to areagovernments and businesses. But expansion canoccur only if the trust status of the land is stable andlocal governments and businesses can rely on it as abasis for economic planning.

These examples illustrate in concrete termsthe kind of adverse impact the court of appeals’decision in this case will have on the governmentsand citizens of southwest Michigan.

Lewis, supra note 24.

Gun Lake Casino Opening Weekend, supra note 7.

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The Court’s decision in this case will also havean impact that extends far beyond southwestMichigan. Local governments and businesses acrossthe country rely on the federal government’s title totrust lands as the foundation for planning andinvestment in connection with economic developmentof trust lands. If individuals such as Respondent arefree to challenge the validity of the title to the trustlong after the lands have been placed into truststatus, when a business is already operating on thetrust lands, then communities across the country willface the same economic uncertainty and instabilitythat now confront amici. As a result, no one will beable to place full reliance on U.S. title to trust landsas a way of promoting economic growth andproviding vital public services.

This Court has long held that a basic purposeof the law is to provide predictability. See, e.g.,Regan v. New York, 349 U.S. 58, 64 (1955) ("The lawstrives to provide predictability so that knowing menmay wisely order their affairs .... "). Nowhere isthis consideration more significant than in thecontext of title to real property. See, e.g., Republic ofAustria v. Altmann, 541 U.S. 677, 693 (2004)("[P]redictability and stability are of primeimportance" in the context of "contractual orproperty rights.") (citation and internal quotationmarks omitted). The court of appeals’ decisionundermines this predictability and places localgovernments and businesses in an unstable position:they have opportunities to invest in and improvetheir communities and grow their economies, but

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they do not know whether those resources will betaken away. It is therefore imperative that thisCourt reverse the judgment of the court of appeals.

CONCLUSION

The decision of the court of appeals should bereversed.

Respectfully submitted,

ROBERT A. LONG, JR.ROSS B. GOLDMANCOVINGTON & BURLING LLP1201 Pennsylvania Ave., NWWashington, DC 20004(202) 662-6000rlong@cov.com

February 14, 2012

MICHAEL D. HOMIERCounsel of Record

LAURA J. GARLINGHOUSEFOSTER, SWIFT, COLLINS ~SMITH, P.C.1700 E. Beltline Ave., NESuite 200Grand Rapids, MI 49525(616) 726-2200mhomier@fosterswift.com