MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Plaintiffs City of Yreka ("City") and City Council of the City of Yreka ("City Council") brought this action pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706, against defendants Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior ("Secretary"); Larry Echohawk, in his official capacity as Assistant Secretary for Indian Affairs of the Department of the Interior; the Bureau of Indian Affairs ("BIA"); Dale Morris, in his official capacity as the Pacific Regional Director ("regional director") of the BIA; and Michael Mallory, in his official capacity as Siskiyou County Assessor-Recorder, arising from the Secretary's decision to acquire approximately 0.90 acres of land to be held in trust by the United States for the Karuk Tribe of California ("Karuk," "tribe," or "KTOC"). The Secretary decided to acquire the land pursuant to the Indian Reorganization Act ("IRA"), 25 U.S.C. §§ 461-79, and its implementing regulations. Plaintiffs have filed a motion for summary judgment or, in the alternative, summary adjudication, and defendants have filed a motion for summary judgment.*fn1
I. Factual and Procedural Background On April 8, 2003, pursuant to Tribal Resolution No. 03- R-06, approved on March 31, 2003, the Karuk Tribe of California submitted a fee-to-trust application to the regional director of the BIA. The tribe requested that the United States hold 0.90 acres of land ("the land") in the City of Yreka and County of
Siskiyou*fn2 in trust for the tribe. (See AR000001-AR000080.*fn3 ) The tribe's application stated that it had purchased the land in 1999 and had operated a health and dental clinic (commonly referred to as "Yreka Clinic," "Yreka Medical Clinic," or "Foster/Yreka Clinic") on the land for longer than a decade. The tribe had remodeled a building on the land in three phases, with the final phase to be completed in June of 2003. In its application, the tribe indicated that it had originally intended to build a new building on land already held in trust by the United States, but had purchased additional land and remodeled rather than constructed a new building because of a cease and desist order on new construction in the City of Yreka due to the inadequacy of the sanitary sewer system.*fn4
The application first addressed the policy on land acquisition found at 25 C.F.R. § 151.3(a). The application indicated that the land "is located approximately 1.4 miles from Tribal Trust land within the ancestral territory." (AR000006; see also id. ("The  clinic is the Yreka Clinic, which is located approximately 1.4 miles from the Tribal housing, within walking distance of Karuk trust land."). The tribe requested trust status because "it is a goal of the Tribe, as a Self Governance Tribe, to operate all tribal programs and facilities on Tribal Land." (Id.; see also AR000007 ("The Karuk Tribe is one of the largest California Self-Governance Tribes currently in negotiation compact agreements within the Departments of the Interior [sic]. Since 1996, our tribe has continued to assume sovereign jurisdiction of our ancestral territory and the Tribal and Federal trust responsibilities therin.").)
The tribe stated that its health program provides care to the majority of the "tribal and community members." (AR000006.) At the time, the tribe had "three clinics in the aboriginal territory," with only one of them located on trust land. (Id.) The Yreka Clinic would be the second clinic located on trust land.
The application then addressed seven factors that the Secretary is required to consider pursuant to 25 C.F.R. §§ 151.10 and 151.11 for off-reservation land acquisitions. For example, as to the tribe's need for the additional land, the tribe reiterated that it "has continued to assume sovereign jurisdiction of [its] ancestral territory and the Tribal and Federal trust responsibilities therein." (AR000007.) The tribe explained that "[a]s the tribal capacity to protect and preserve [its] cultural and tribal trust resources continues to grow, the tribe has the trust responsibility to acquire culturally significant sites to ensure culturally sensitive management of these sites is upheld." (Id.) The tribe also explained that "[t]he clinic operates on minimal budget[,] therefore the acquisition of this parcel is crucial for the Tribe to freely exercise and preserve cultural management over quality health care and self-determination." (Id.)
As to the proposed land use, the tribe stated that it had operated a health and dental clinic on the land for longer than a decade and that it was in the process of remodeling the building, "which will enhance upon the tribes [sic] ability of self sufficiency and provide quality medical, dental and behavioral health services." (AR000008.) Regarding the tax impact of the acquisition on political subdivisions, the tribe stated that it had paid $5,610.00 in property taxes the previous year. The tribe implied that any tax impact would be offset by a reduction in reliance on County-sponsored welfare because the Yreka Clinic provides medical and dental care not only to members, but to non-members for a fee. According to the tribe, the Yreka Clinic is "one of the few Medi-cal excepting [sic] clinics in Yreka." (AR000008.)
Pursuant to § 151.11(d), on June 18, 2004, the BIA issued a "Notice of Off Reservation Land Acquisition Application (Non-Gaming)." (See AR000090-AR000100.) The City filed comments, (see AR000110-AR000112), to which the tribe responded. (See AR000137-AR000139.) In its comments, the City claimed that "very little benefit appears to flow to the KTOC in the transfer of this property in fee ownership to trust ownership." (AR000110.) The City claimed that the land is approximately 100 miles from the tribe's "traditional tribal lands." (Id.) While the land is "approximately one mile to the Native American Housing project," the land is located in "the heart of the City of Yreka, and is surrounded by developments controlled by the City of Yreka Zoning Ordinance, which properties will be directly affected by the use of the subject parcel." (Id.) The City acknowledged that the current use is consistent with zoning, but raised concerns that future uses would be inconsistent or that encroachments on setback limitations would occur.
The City informed the regional director that it could sustain the loss of tax revenue and still provide services such as police, fire, and utilities, but the City argued that "this situation would not be fair or appropriate on a different scale." (AR000111.) In concluding its comments, the City requested that the Secretary impose two conditions to the approval of the application: (1) an in-lieu yearly contribution equivalent to the lost property tax revenue received for services provided and (2) that the current use of the land remain unchanged.
On June 9, 2007, the BIA requested more information from the tribe, including whether the proposed use was non-gaming, gaming, or gaming-related. (See AR000155.) The tribe responded with a new tribal resolution clarifying that the land be taken into trust for non-gaming purposes. (See AR000158-AR000164.)
On May 14, 2008, the regional director issued the Notice of Decision ("NOD" or "decision"), in which he stated that it is the BIA's intention to accept the land into trust for the Karuk Tribe of California. (See AR000183-AR000202.) In the decision, the regional director addressed the land acquisition policy under § 151.3(a) and the factors the Secretary is required to consider under §§ 151.10 and 151.11 for off-reservation land acquisitions. The regional director's decision addressed the City's concerns raised in its comments.
The City and City Council, plaintiffs in this action, filed an appeal of the regional director's decision to the Interior Board of Indian Appeals ("IBIA"). (AR000230-AR000231.) On appeal, they argued that (1) there is no statutory authority for the acquisition because the land is not within or adjacent to the exterior boundaries of the tribe's reservation or within a tribal consolidation area and the tribe does not have a sufficient interest in the land to support the acquisition, (2) the regional director's discussion of the proposed land use was based on erroneous facts, and (3) the land would possibly be put to uses that do not conform to the City's zoning and general plan, such as gaming uses, and would possibly increase conflicts between the tribe and City and City Council. Plaintiffs requested that approval of the land acquisition be limited to non-gaming uses.
On June 7, 2010, the IBIA issued its decision, responding to plaintiffs' arguments and affirming the regional director's decision. See City of Yreka, Cal., & City Council of the City of Yreka, Cal. v. Pac. Reg'l Dir., Bureau of Indian Affairs, 51 IBIA 287 (2010). In affirming the regional director's decision, the IBIA concluded that "Appellants have not shown that the Regional Director's Decision was erroneous, was based on material factual inaccuracies, or reflected an improper exercise of his discretion, and that the administrative record demonstrates that he considered each of the criteria in 25 C.F.R. §§ 151.10 and 151.11 and reasonably exercised his discretion." Id. at 297.
A. Summary Judgment Standard Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable trier of fact to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. When the parties submit cross-motions for summary judgment, the court must consider each motion separately to determine whether either party has met its burden, "giving the nonmoving party in each instance the benefit of all reasonable inferences." ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
B. Exhaustion of Administrative Remedies Plaintiffs bring suit pursuant to the APA. See 5 U.S.C. § 702 (providing for right of judicial review); 25 C.F.R. § 151.12(b) (allowing for thirty days to seek judicial ...