HomeMy WebLinkAbout10C - SMSC Land Acquisitiono~ PR1o~
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4646 Dakota Street S.E.
Prior Lake, MN 55372-1714
CITY COUNCIL AGENDA REPORT
MEETING DATE: September 8, 2009
AGENDA #: 10C _" __
PREPARED BY: Frank Boyles, City Mana~gerf ~ui
AGENDA ITEM: CONSIDER APPROVAL ~C)F A REPORT ADOPTING A POSITION
REGARDING A NOTICE OF (NON-GAMING) LAND ACQUISITION
DISCUSSION: Introduction
The purpose of this agenda item is to determine if the City Council desires to
take a position with respect to a request by the SMSC to place a 78-acre parcel
in trust status with the Federal Government.
History
In 2000, the SMSC purchased the 78-acre "Dolan" property. The property lies
immediately west of CR 83, north of the property that Mystic Lake casino/hotel is
located and south of the SMSC government center (see attached map).
The property is owned in i~ee simple title by the SMSC. On October 27, 2008,
the SMSC submitted an application to the Bureau of Indian Affairs (BIA) in the
Department of the Interior to approve placing the land in trust. Three months
ago, Tribal Administrator 13111 Rudnicki attended a Council meeting in part to
advise the City Council that this matter would be before the Council this
summer/fall. The City has now received a copy of the BIA notices entitled,
"Notice of (Non-Gaming) Land Acquisition Application together with a copy of the
request which was submitted to the BIA which requests comments from the City
on the proposed actions. Both are attached for information.
Current Circumstances
The BIA/Department of the Interior in its discretionary authority under Federal
regulation may accept property into trust on behalf of the United States of
America. To assist in this process, municipalities are invited to comment about
the proposed action within 30 days of the notice. Since the initial 30-day period
expired September 6, 2009, I requested a 30-day extension to October 6, 2009.
Specifically, the Secretary of the Department of the Interior seeks to assess the
impact of the removal of the subject property from the tax rolls.
To make this determination, the BIA has asked the City for:
The amount of annual property taxes levied on the property by Prior
Lake.
In 2009, the amount is $4,019.46.
2. Any special assessments against the property.
None.
3. Any governmental services that are currently provided to the property
by Prior Lake.
Polices services for which the City receives aid.
www. cityofpriorlake . com
Phone 952.447.'x800 /Fax 952.447.4245
4. How the intended use is consistent or inconsistent with the zoning of
the property.
The property is shown on the City's zoning map as C-4 General
Business. The proposed uses are consistent with this zoning
designation.
The application to the BIA states the following about the proposal:
• The parcel is important to the tribal community and its economy.
• Dakotah Parkway, a road built and maintained by the Community is on the
parcel.
• The road connects Liti:le Six Casino, the government center, Mystic Lake
Hotel and the casino k>oth to CR 83 and CR 42.
• The parcel contains a large employee parking lot and vendor entrance to the
casino/hotel.
• The parcel contains SIMSC infrastructure owned and maintained by the Tribe
including sewer and water mains which are looped with the City system for
wellhead protection.
• Fiberoptic, telephone and electric lines also lie below the parcel.
• The planned land uses for the parcel are sewer and water infrastructure and
maintenance.
• Transportation, telecommunication infrastructure, wellhead protection,
medical clinic and economic development.
• A full service medical and dental facility is planned for the parcel.
• The site is also intended to provide economic development opportunities for
tribal members.
• The site will also facilii;ate sovereign government because of the above-listed
purposes.
• The SMSC will providE~ all services to the parcel except police which is
provided by the Prior Lake Police Department.
• About 35% of the parcel is wetland.
The parcel, according to Scott county, generates $30,638 in taxes to all entities
in 2009. This allocation included $8,708.11 to the State of Minnesota,
$7,024.81, fiscal disparities pool; $5,930.95, school district; $4,270.62, Scott
County; $4,019.46, City of Prior Lake; and, $526.21 combined to the Scott
County CDA, Transit Taxing District, Metropolitan Council and Mosquito Control.
The Tribe makes numerous contributions to Scott County, the School District and
the City of Prior Lake. They have entered into local government aid agreements
with Prior Lake and Scott County, provided funding for the improvement of
roadways such as CR 83, donated money for AEDs, lights at Ryan Park and
constructed Dakotah! Ice Center which would have become a municipal
obligation.
Conclusion
The Council should determine what, if any, position it wishes to take on this
request.
ISSUES: The Code of Federal Reg~,alations, Title 25, INDIANS, Part 151.10 sets forth the
criteria that the secretary imust consider in determining if the request is to be
approved:
1. The existence of statutory authority for the acquisition and any limitations
contained in such authority.
2. The need of the Tribe for additional land.
3. The purposes for which the land will be used.
4. If the land to be acquired is in unrestricted fee status, the impact on the State
and its political subdivisions resulting from the removal of the land from the
tax rolls,
5. Jurisdictional problems and potential conflicts of land use which may arise.
6. If the land to be acquired is in fee status, whether the BIA is equipped to
discharge the additional responsibilities resulting from the acquisition of the
land in trust status.
7. The extent to which the applicant has provided information that allows the
Secretary to comply with the National Environmental Policy Act.
As can be seen, only one of the seven BIA criteria considers the impact upon
adjacent governmental bodies. The rules do not suggest that special
consideration or weight is given to any particular criteria. Therefore, the
Secretary must consider all criteria in making a determination.
The County has taken a position not to oppose this trust request as set forth in
their August 25, 2009 lettESr (attached). The County cites numerous reasons.
Among them are: there are numerous inter-governmental cooperative
agreements between the County and SMSC regarding road maintenance,
justice, corrections and administrative affairs, the SMSC is a proven steward of
the environment, the SM~~C is a positive economic impact and engine for the
metropolitan area, and in the totality of the circumstances regarding the
application, "Scott County does not oppose the acquisition of trust status for the
former Dolan property."
Since the BIA criteria focus on financial considerations, it is important to note that
the property generates just over $4,000 annually for the City of Prior Lake. There
are numerous other financial considerations to the City including:
• An annual $360,000 local government assistance payment.
• Joint purchase of equipment for street maintenance.
• Street/sewer and water equipment and trailer exchange.
• The gift of 17 AEDs.
• Use of a million dollar portable emergency services and medical center.
• Interconnection of utilities for emergency services.
• $450,000 contribution for field lighting.
• $10 million ice center for community use.
• $5 million contribution for CR 83 improvements.
• Low cost lease of land for CR 21 / CR 16 transit station.
None of these benefits are specifically related to this property, but generally a
product of the partnerships which both governmental entities have prompted.
Local, state and federal governments are geographic entities. They occupy land.
This is true for the SMSC just as it is true for Prior Lake. The SMSC can only
expand its land base through purchase. Prior Lake increases its geographic
area through annexations as occurred as a result of the annexation agreement
with Spring Lake Township. Any tax base lost through trust application is more
than made up through the annexation process.
FINANCIAL While there is modest property tax loss as a result of this trust application, it is
IMPACT: more than made up by the; tangible and intangible benefits of cooperation and
partnership.
ALTERNATIVES: 1. Authorize the staff to prepare a letter supporting the trust application.
2. Authorize the staff to prepare a letter taking no position on the trust
application.
3. Authorize the staff to prepare a letter taking a position opposed to the trust
application.
4. Take no action and direct the staff as appropriate.
RECOMMENDED As determined by the City Council.
MOTION:
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August 25, 2009
Mr. Terrence Virden
Director, Midwest Regional Office
Bureau of Indian Affairs
Bishop Henry Whipple Federal Building
One Federal Drive, Room 550
Fort Snelling, Minnesota 55111
Dear Mr. Virden:
On behalf of the Scott County Board of Commissioners (Scott County, Minnesota),
please consider this correspondence to constitute the official comments of the County in
regard to the Shakopee Mdewakanton Sioux Community's (SMSC's) Application for
Land Trust Acquisition (number F-411-2008-1702, a.k.a., the former Dolan Property).
We respectfully submit these comments pursuant to the stipulations and requirements of
Title 25, Part 151.10 of the Code of Federal Regulations.
Scott County has a well documented history relating to the SMSC's extensive land
acquisitions and previous fee-to-trust requests and, as you are aware, opposed the
SMSC's 2000 Application involving 7'76-plus acres. The County has fully reviewed the
current Application (dated April 15, 2002) and the corresponding Environmental
Assessment (January 2009) submitted by the SMSC for this 80-acre parcel located within
the City of Prior Lake. This parcel is surrounded by land already in trust, has
considerable wetland area, is partially developed and the uses (development) being
proposed provide added services to the community members; consistent with our
previously stated policy and principles of acknowledging and supporting incremental,
need-based trust acquisition, the County finds no reason to oppose this application for
trust status. More specifically, in concert with language in a decision made by the
Interior Board of Indian Appeals (City of Eagle Butte, 17 IBIA at 196-197, 96 LD. at 331),
the County believes that the Bureau of Indian Affairs would be meeting its required
duties in finding that the current Application is "... reasonable in view of [the] overall
analysis of the factors listed in 151.10."
Based upon our review, Scott County:
1. Concurs with the SMSC's description of the parcel of land, and that the land
subject to the current Application should be considered under the provisions of
151.10 ("on-reservation acquisitions") due to its contiguity to existing
reservation trust holdings.
2. Concurs that there appear to be little, if any, jurisdictional conflicts articulated in
the SMSC's Application.
3. Has verified the accuracy of property tax figures included in the January 2009
Environmental Assessment. While the County does not necessarily consider the
current and continual annual loss of over $30,000 in property taxes to be a trivial
sum (see Appendix C, Environmental Assessment), we concur that the loss of this
tax revenue will not have a significant impact upon the County.'
4. Trusts that the SMSC will fulfill its governmental responsibility to provide the
required public utility and general infrastructural services to this property, and
that the SMSC -- in conjunction with the City of Prior Lake -- will provide the
required public safety services.
Scott County and the SMSC, in the spirit of mutual respect, mutual benefit, and
intergovernmental cooperation, has partnered in a series of infrastructure developments in
recent years (see pp. 11 - 12, Environmental Assessment) and are continuing to work
cooperatively in a wide variety of road improvements, technology enhancements, and
public health initiatives that will provide ongoing benefits to members of the tribal
community and the larger Scott County community. As noted in the SMSC submissions,
the County and the SMSC also have a ;;eneral Intergovernmental Agreement designed to
assist the County with potential impacts from the SMSC's enterprises upon road
maintenance, justice, corrections, and general administration expenses.
In addition, the County concurs that the SMSC has proven to be an able steward of the
environment and, as such, we have no cause for concern regarding any potential negative
impacts on the natural resources, air quality, living resources, or sound/lighting/aesthetics
of the area.
Scott County and the Shakopee Mdewakanton Sioux Community are both governments
by consent of the governed, partners in many endeavors for the public good, and elected
defenders of the public's welfare. In addition, the SMSC's enterprises are a welcome and
positive economic engine for the southwestern metropolitan region. Yet perhaps most
importantly, the tribal members of Shakkopee Mdewakanton Sioux Community are equal
members of the larger Scott County community.
It is the County's hope, intent, and oft-stated policy to build upon this spirit of
community, recognition of mutual success, and intergovernmental respect now and in the
future. And it is in view of this relationship as well as the totality of the circumstances
regarding the current Application that `.icott County does not oppose the acquisition of
trust status for the former Dolan property (F-411-2008-1702).
Respectfully submitted,
Jon Ulrich, Chair
Scott County Board of Commissioners
Cc: Scott County Board of Commissioners
Shakopee Mdewakanton Sioux Community
City of Prior Lake
City of Shakopee
State of Minnesota
` Specifically, the total property tax to be paid crn this parcel in 2009 equals $30,638. The jurisdictional
allocation of this figure is as follows (in descending order): $8.708.11 -State of Minnesota, $7,024.81 -
Fiscal Disparities pool, $5,930.85 -School District, $4,270.62 -Scott County, $4,019.46 -City of Prior
Lake, $202.75 -Scott County CDA, $157.16 -transit taxing district, $104.90 -Metropolitan Council, and
$61.40 -Metropolitan Mosquito Control.
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SHAKOPEE MDEWAKANTON SIOUX COMMUNITY
WRITTEN REQUEST FOR
TRUST ACQUISITION
~v
The undersigned elected officials of the Shakopee Mdewakanton Sioux Community,
acting under the delegated authority of the General Council, hereby submit this written
request to the United States Government, Secretary of the Interior, to acquire fee land
owned by the Community in trust for the Community and declare such trust land a part of
the Shakopee Mdewakanton Sioux Community's reservation.
Scott County, Minnesota
Stanley R. Crooks, Chairman
Glynn A. Crooks, Vice Chairman
Keith R. Anderson, Secretary/Treasurer
TABLE OF CONTENTS
1. INTENT OF APPLICATION .................................................................................. 1
1.1. INTRODUCTION .................................................................................................... 1
I.2. REQUEST FOR TRUST ACQUISITION .................................................................... .. 1
1.3. REQUEST FOR RESERVATION STATUS ................................................................ .. I
2. DESCRIPTION OF LAND .................................................................................... ..1
2.1. LOCATION .......................................................................................................... ..1
3. STATUTORY AUTHORITY FOR THE ACQUISITION ................................. .. 2
3.1. STATUTORY AUTHORITY ................................................................................... .. 2
3.2. CONSTITUTIONAL AUTHORITY ........................................................................... .. 4
4. NEED OF THE TRIBE FOR THE ADDITIONAL LAND ................................ .. 5
4.1. LIST OF NEEDS ................................................................................................... .. 5
4.2. NEED DESCRIPTION ........................................................................................... .. 5
4.2.1. Water supply infrastructure and maintenance ........................................... . 5
4.2.2. Sanitary sewer infrastructure and maintenance ........................................ . 6
4.2.3. Transportation efficiency and safety .......................................................... . 6
4.2.4. Telecommunication infrastructure and maintenance ................................ . 7
4.2.5. Wellhead protection ................................................................................... . 7
4.2.6. Medical clinic ............................................................................................. . 8
4.2.7. Economic development .............................................................................. . 8
4.2.8. Sovereignty ................................................................................................. .9
5. PURPOSE FOR WHICH THE LAND WILL BE USED ................................... 10
S. L . PROPOSED USE OF THE LAND ............................................................................. 1 ~
5.1.1. Water supply infrastructure and maintenance .......................................... 10
5.1.2. Sanitary sewer infrastructure and maintenance ....................................... I1
5.1.3. Transportation efficiency and safety ......................................................... 11
5.1.4. Telecommunication infrastructure and maintenance ............................... 11
5.1.5. Medical clinic ............................................................................................ 12
5.1.6. Economic development ............................................................................. 12
5.1.7. Wellhead protection .................................................................................. 12
5.1.8. Infrastructure maintenance ....................................................................... 13
5.1.9. Sovereignty ................................................................................................ 13
6. IMPACT ON THE STATE AND ITS POLITICAL SUBDIVISIONS
RESULTIN G FROM THE REMOVAL OF THE LAND FROM THE TAX ROLLS
14
6.1.1. Table 1, Parcel Property Tax and Where It Goes .................................... 14
6.1.2. Table 2, Percent of Parcel Property Taxes on County and City Revenue I S
6.1.3. Table 3. IntergovernmentalAid ................................................................ IS
6.1.4. Table 4. Tribal contributions to Scott County economy ........................... 16
i
7. JURISDICTIONAL PROBLEMS AND POTENTIAL CONFLICTS OF LAND
USE 16
8. ADDITIONAL RESPONSIBILITIES THAT MAY ACCRUE TO THE
BUREAU OF INDIAN AFFAIRS .................................................................................17
9. INFORMATION REGARDING 516 DM 6, APPENDIX 4, NATIONAL
ENVIRONMENTAL POLICY ACT AND 602 DM 2, LAND ACQUISITIONS:
HAZARDOUS SUBSTANCES DETERMINATIONS ............................................... 17
9.I . PHASE ONE HAZARDOUS MATERIALS SURVEY .................................................. 1 ~
9.2. ENVIRONMENTAL ASSESSMENT ......................................................................... 17
10. REFERENCES ....................................................................................................17
11. APPENDIX A, FEDERAL REGISTER LISTING FOR SHAKOPEE
MDEWAKANTON SIOUX COMMUNITY ..................................................................1
12. APPENDIX B, GENERAL COUNCIL RESOLUTIONS AND ORDINANCE
1
13. APPENDIX C, PLATES ......................................................................................1
14. APPENDIX D, SURVEY OF SUBJECT PARCEL ........................................... 1
15. APPENDIX E, LEVEL ONE HAZARDOUS MATERIALS SURVEY..........1
16. APPENDIX H, WARRANTY DEED ..................................................................1
17. APPENDIX I, TITLE INSURANCE COMMITMENT .................................... 1
18. APPENDIX J, TRIBAL HEALTH DEPARTMENT LETTER ....................... 1
19. APPENDIX E, PHASE I HAZARDOUS MATERIALS SURVEY ................. 2
20. APPENDIX F, WILDLIFE STATUS ON SMSC LANDS ................................ 3
ii
PLATES AND FIGURES. APPENDIX C
Plate 1, Regional Location Map ........................................................................... 2
Plate 2, Subject Parcel Location Map and Current Land Use ......................... 3
Plate 3, Subject Parcel Proposed Land Use ........................................................ 4
1. INTENT OF APPLICATION
1.1. Introduction
This document constitutes a formal written request by the Shakopee
Mdewakanton Sioux Community (hereinafter "the Tribe") for the United States to
acquire approximately 78 acres of land in trust for the Tribe and declare that land to be a
part of the Tribal reservation. The land lies within the historic residence area of the SAK
PE band of the Mdewakanton Dakota. The Tribe is a federally recognized Indian Tribe
organized under Section 16 of the Indian Reorganization Act (IRA) (Appendix A).
1.2. Request for Trust Acquisition
The Business Council of the Tribe, acting under the delegated authority of the
General Council (Appendix B), hereby requests the Secretary of the Interior to acquire
approximately 78 acres in Scott County, Minnesota, (hereinafter the "Subject Parcel") in
trust for the Tribe. This land is located in the S '/z of the SW 1/4 of Section 28, Township
115N, Range 22W as described by the United States Government Survey.
The Subject Parcel, currently owned in fee simple absolute by the Tribe, is
adjacent to existing trust and reservation lands (Appendix C, Plate 1 and 2). The parcel
north of the Subject Parcel is original trust and reservation land. The parcels south and
southeast of the Subject Parcel are trust land. The Tribe's written request is an on-
J~reservation acquisition under 25 CFR § 151.10.
1.3. Request for Reservation Status
The Business Council of the Tribe, acting under the delegated authority of the
General Council (Appendix B), hereby requests the Secretary of the Interior to declare
the Subject Parcel a part of the Tribe's reservation pursuant to 25 U.S.C. § 467.
2. DESCRIPTION OF LANDI
2.1. Location
This 78 acre parcel is located in the S '/z of the SW '/4 of Section 28, Township
115N, Range 22W. This parcel is currently located within the jurisdictional boundaries
of the City of Prior Lake (hereinafter "the City"), Scott County (hereinafter "the
1 Required under 25 C.F.R. § 151.9
County"), and the State of Minnesota. This parcel is surrounded by Tribal land, expect
for a small piece located to the northeast.
The Subject Parcel currently plays an important auxiliary role in the Tribal
community and its economy. An important Tribal roadway, Dakota Parkway, crosses the
Subject Parcel. This Tribally funded and maintained road provides access to Tribal
enterprises, the government center, the Pow-Wow grounds, member residential areas, and
three county highways. Where it crosses the Subject Parcel, Dakota Parkway directly
connects Little Six Casino and the government center located to the north to the Tribal
enterprises in the south, including Mystic Lake Casino and Hotel. It also provides access
to a large employee parking lot and a vendor entrance to Mystic Lake Casino and Hotel
both located on the Subject Parcel. The 1.5-mile Dakota Parkway currently lies within
three jurisdictions: the Tribe, the City oi.' Prior Lake, and the City of Shakopee.
A variety of Tribal public infrastructure is present on the Subject Parcel. This
Tribal public infrastructure is funded and maintained by the Tribe, but under the
jurisdiction of the City of Prior Lake. The Tribe has recently upgraded sewer mains and
lift stations on the Subject Parcel to compliment the construction of a Tribal wastewater
treatment facility located aquarter-mile to the southeast. The Tribe also has important
water mains crossing the Subject Parcel that brings water from the Tribal water towers to
Tribal enterprises and residences. The entire system is looped and has secondary mains
to secure the water supply. This system is also interconnected with the City of Prior Lake
municipal water supply, providing wellhead protection as well as other benefits. Secure
fiber optic, telephone, and electric lines also cross the Subject Parcel.
3. STATUTORY AUTHORITY FOR THE ACQUISITION2
3.1. Statutory Authority
The Supreme Court recently confirmed that the fee to trust process "provides the
proper avenue" for an Indian Tribe "to reestablish sovereign authority over territory."
City of Sherrill v. Oneida Indian Nation, 125 S.Ct. 1478, 1494 (2005). Section 5 of the
IRA provides clear statutory authority for acquisitions of land in trust for Indian Tribes.
"Acquisition of land in trust for Indian Tribes and individuals is authorized by the Indian
Reorganization Act, 25 U.S.C. § 465." Georgiana Kautz v. Portland Area Director, BIA,
z Required under 25 C.F.R. § 151.10 (a)
2
19 IBIA 305, 308 (1991). Under the IRA, Indian Tribes can purchase land and request
the Secretary of the Interior to place the land in trust pursuant to §465. Chase v.
McMasters, 573 F.2d 1011, 1015-16 (8th Cir. 1978); City of Sault Ste. Marie, Mich. v.
Andrus, 532 F. Supp. 157, 162 (D.D.C. 1980). Section 5 of the IRA, 25 U.S.C § 465,
provides the statutory authority for this acquisition.
Regulations implementing § 465 are found at 25 C.F.R. Part 151. McAlpine v.
United States, 112 F.3d 1429, 1431 (10th Cir. 1997). While 25 U.S.C. § 465 vests the
Secretary with discretion to make trust acquisition determinations, that discretion is
guided by the implementing regulations and requires that the Secretary's "final decision
should be reasonable in view of its overall analysis of the factors listed in section
151.10." Ross v. Acting Musko eg e Area Director, BIA, 18 IBIA 31, 34 (1989);
McAlpine v. Muskogee Area Director, I3IA, 19 IBIA 2, 6 (1990).
This request is within the scope cif the regulations governing trust acquisitions by
the United States, and fulfills the policy as articulated at 25 C.F.R. § 151.3(a)(1)-(3).
First, statutory authorization for the acquisition is found at 25 U.S.C. § 465, et seq., thus
satisfying the requirement of 25 C.F.R. § 151.3. Second, in accordance with 25 C.F.R. §
151.3(a) (1), the Tribe owns this parcel in fee simple absolute. Third, as set forth in 25
C.F.R. § 151.3(a)(2), this parcel is adjacent and contiguous to the Tribe's reservation.
Fourth, the Tribe's request is necessary to facilitate self-determination and economic
development.
Trust acquisition of the Subject Parcel is within the intended scope of § 465 of the
IRA3. The uses planned for this land benefit not only the Tribe, but also the entire region.
The existing transportation route was constructed using Tribal funds and provides an
alternative route for all persons traversing the area. Effective, safe and efficient public
water and wastewater treatment systems provide health and safety benefits for all Tribal
members and guests of the Tribe. As a major regional employer, the stability of the
Tribal economy is beneficial to the entire region and vital to the Tribe. The planned land
s The intent of the IRA's trust acquisition statute, as stated by the Representative Edgar Howard, the bill's
House sponsor, was to provide "a land acquisition program to provide land for Indians... who can use the
land beneficially." 78 Cong. Rec. H11, 730 (1934). The Eight Circuit Court of Appeals likewise
determined that the legislative history indicates an intent to develop Tribal economics, "to conserve and
develop Indian lands and resources," and prevent any further loss of Indian lands. South Dakota v. Dept. of
the Interior, 423 F.3d at 798.
3
uses provide a direct benefit to the Tribe and an indirect benefit to all people living in the
region.
Trust status is required for full implementation of the planned land uses. With the
land in fee ownership the land is subject. to a complex interaction of local, state, Tribal
and federal regulation. The land's fee status greatly increases management difficulties.
Some of the planned land uses would be precluded or not economically feasible without
trust status and Tribal jurisdiction.
3.2. Constitutional Authority
Congress possesses the Constitutional authority to acquire land in trust and has
properly delegated that authority to the Secretary of the Interior in Section 5 of the IRA.
Article 1, Section 8, clause 3 of the United States Constitution grants Congress the power
to regulate all commerce with Indian tribes. Article 1, Section 8, clause 18 grants
Congress the power to pass all laws necessary and proper to regulate such commerce.
Using this authority, Congress enacted t11e IRA. Section 465 of the IRA delegates
authority to the Secretary of the Interior to acquire land in trust for federally recognized
Indian tribes.
The constitutionality of the IRA, specifically 25 U.S.C. §465, survived judicial
scrutiny on several occasions. Section 465 was challenged as unconstitutional by the
State of South Dakota, and a panel of the Eighth Circuit Court of Appeals, in a two to one
decision, erroneously held the statute to be an unconstitutional delegation of authority by
Congress. State of South Dakota v. U.S. Dept of the Interior, 69 F.3d 878 (8t" Cir.
1995). The Supreme Court granted the petition for writ of certiorari, vacated the
judgment and remanded the case. 519 U.S. 919 (1996).
Since the Supreme Court's decision in 1996, the Tenth Circuit Court of Appeals
also disagreed with the vacated decision of the Eighth Circuit and held that "Congress
properly delegated to the Secretary of the Interior authority to make (trust) acquisitions".
United States v. Roberts, 185 F.3d 1125, 1137 (lOt" Cir. 1999). The First Circuit Court
of Appeals has also held that the IRA's delegation of authority to the Secretary to acquire
lands in trust is constitutional. Carcieri v. Norton, 398 F.3d 22 (lsy Cir. 2005).
Furthermore, in 2005, the Eighth Circuit repudiated its 1995 decision and upheld the
constitutionality of 25 U.S.C. §465. South Dakota v. U.S. Dept of the Interior, 423 F.3d
4
790 (8th Cir. 2005). Accordingly, the statutory authority is constitutional and, as a matter
of law, the Secretary can acquire lands in trust for the Tribe pursuant to § 465.
4. NEED OF THE TRIBE FOR THE ADDITIONAL LANDQ
4.1. List of Needs
Planned land uses meet critical Tribal needs and require the land to be under
Tribal jurisdiction. The Subject Parcel will fulfill the following needs of the Tribe:
• Water supply infrastructure and maintenance
• Sanitary sewer infrastructure and maintenance
• Transportation efficiency and safety
• Telecommunication infrastructure and maintenance
• Wellhead protection
• Medical clinic
• Enterprise development
• Sovereignty
The location and physical characteristics of the Subject Parcel make it particularly
suitable to meet Tribal needs. The majority of these needs are site specific because they
are related to the location of the land or its physical characteristics. This prohibits simply
moving the land use to another location.
4.2. Need Description
4.2.1. Water supply infrastructure and maintenance
Provision of an uninterrupted supply of water for consumption and fire protection
is necessary for the health and safety of the Tribe and its guests. The primary Public
Water Supply (PWS), supplying the majority of Tribal residential, institutional, and
commercial water, is located just north of the Subject Parcel. This system feeds two
water storage towers. The primary tower, a 1,000,000-gallon structure, is located
southeast of the Subject Parcel across County State Aid Highway (CSAH) 83. The
secondary, 300,000-gallon structure is located just north of the Subject Parcel. Water
a Required under 25 C.F.R. § 151.10 (b)
5
from the wellhead and treatment facility is pumped to both towers for distribution to the
end users.
Ensuring an uninterrupted supply requires that water mains from the treatment
facility to the towers and from the towers to major service areas be looped and
interconnected so water can be provided from both ends of the loop. The Tribe designed,
constructed, and funded a looped water main on the Subject Parcel to meet tribal needs.
This system is also interconnected with the City of Prior Lake municipal water supply,
providing wellhead protection as well as other benefits. This infrastructure lies on land
that is under the concurrent jurisdiction of the Tribe, local and state governments.
Certain maintenance on this infrastructure may require permits and inspections from the
City. This is an unnecessary service to the Tribe, since the Tribe has its own permitting
system and inspectors. The Tribe is capable of performing and inspecting its own
construction and maintenance work.
4.2.2. Sanitary sewer infrastructure and maintenance
A highly reliable and efficient sanitary wastewater treatment system is essential to
the Tribe's economy and public health..A Tribal wastewater treatment facility has been
constructed ahalf--mile southeast of the Subject Parcel. During its construction, the Tribe
replaced and rerouted portions of its sanitary wastewater infrastructure. In addition to
routing new lines across the Subject Parcel for increased efficiency, a lift station was also
constructed. This lift station reduced the number of required lift stations, including their
associated mechanical issues, and provides a significant increase in system reliability.
Again, certain maintenance on this infrastructure may require permits and inspections
from the City. This is an unnecessary service to the Tribe, since the Tribe has its own
permitting system and inspectors. The Tribe is capable of performing and inspecting its
own construction and maintenance work,.
4.2.3. Transportation efficiencYand safety
The Subject Parcel provides a route for amulti-purpose roadway connecting two
portions of the Tribe's existing Reservation lands. The road, Dakotah Parkway, is
completely funded and maintained by the Tribe. It connects several parts of the Tribe's
lands and is essential to the long-term operation of the Tribal government and its
6
enterprises. Dakota Parkway also provides an alternative route for traffic to the Tribe's
enterprises and allows the tribe to manage high traffic loads during special events.
Dakotah Parkway lies in several jurisdictions. Where it crosses the subject parcel,
Dakotah Parkway, was constructed under a conditional use permit from the City. Under
City ordinance, this major-four lane roadway is classified as a "driveway". This
classification allows the Tribe to maintain the road to its own high standards, relieving
the City of maintenance responsibility. However, failure to acknowledge this major
Tribal roadway as such compromises the sovereignty of the Tribe. Furthermore,
concurrent jurisdiction results in a duplication of efforts by the City and Tribe.
4.2.4. Telecommunication infrastructure and maintenance
The Tribal Gaming Commission' requires secure and dedicated data links among
all gaming enterprises. Due to bandwidth requirements, the only reasonable means of
establishing this link is through dedicated fiber-optic lines. Full security requires a
duplicate and looped system. In addition to dedicated fiber-optic lines for gaming
purposes, the Tribe also requires similar lines between the Tribal Government Center and
its enterprises.
Due to its location between the Government Center and various Tribal enterprises,
the Subject Parcel was the only viable location for the routing of these fiber optic lines.
Full security can only be assured if these lines are operated under Tribal jurisdiction.
4.2.5. Wellhead protection
Groundwater is the sole source of water for the Tribe. The Tribe supplies its own
water supply through a series of wells drawing upon the Jordan and Ironton-Galesville
Aquifers, which are located just north of the Subject Parcel (Appendix C, Plate 4). The
Tribe adopted its existing Wellhead Protection Plan as part of an inter jurisdictional effort
that included the Tribe, the U.S. Environmental Protection Agency, the Minnesota
Department of Health, and the local cities. With two wells located just north of the
Subject parcel, the Subject Parcel is identified in the Wellhead Protection Plan as part of
the Tribe's Drinking Water Supply Management Area (DWSMA). A DWSMA is the
s The Gaming Commission operates under the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, the
Tribe's Gaming Ordinance, the Compacts with the State of Minnesota, and the National Indian Gaming
Commission's regulations.
7
area where a contamination release (i.e. a leak in an underground storage tank) would be
most likely to impact the water supply. The well field provides all the water used in
Tribal fire protection, commercial enterprises, and two-thirds of the water used by Tribal
residences. There is a clear need for Tribal jurisdiction over this land. Jurisdiction over
wellheads and activities that affect groundwater on the Subject Parcel simplifies
management activities, clarifies jurisdiction and provides a consistent regulatory
approach under federal jurisdiction.
4.2.6. Medical clinic
A full-service medical and dental clinic is planned for the Subject Parcel. This
clinic will service Tribal members and their children, Tribal employees and their
children, as well as the American Indian population in Scott County and their children.
The planned clinic may include a social services and mental health center. The clinic
must be located near the major Tribal enterprises to serve employees and must be
accessible to the Scott County Indian population. No other trust lands are available to
meet these requirements as a medical clinic site.
The Tribe provides health insurance to its members, its employees, and the Scott
County American Indian population through a managed self-insurance program. A site-
based medical clinic will allow the Tribe to continue to provide this benefit while
controlling costs. The Tribe currently runs a small medical and dental clinic, as well as
providing limited mental health and social services. This existing clinic does not meet
the current demand by Tribal members, employees, and the Scott County American
Indian population. Due to the current clinic's shortcomings, the Tribe has recently had to
limit staff and employee access to this clinic (Appendix J, Tribal Health Department
Letter).
4.2.7. Economic development
The Tribe recognizes the need to diversify its economic base while acting to
increase the stability of its existing economic enterprises. The Subject Parcel provides
enterprise development sites adjacent to existing Tribal enterprises. Any development
will likely focus on recreational activities that interest existing guests. This allows the
community to take advantage of existing; guest traffic and build on its existing economy.
The Subject Parcel supports the existing economy with an employee parking lot and
vendor entrance.
4.2.8. Sovereig_ntX
The Tribe cannot fulfill its responsibilities as a sovereign government unless it has
jurisdiction over the land and resources required to meet these responsibilities. The
Tribe's responsibilities in this case are public health, safe water supply, adequate fire
protection, transportation access, modern communication networks, and efficient sanitary
sewer. The Tribe provides these services at its own expense and at no cost to the adjacent
jurisdictions. The governmental systems and infrastructure should be under the Tribe's
jurisdiction, which is the government providing the services.
The Tribe has the regulations, staffing, equipment and resources necessary to
meet its governmental obligations to Tribal members and overall public safety. For
example, the Tribe provides the following regulations, programs and resources:
• The International Building Code, the International Residential Code, and
the International Fire Code have been adopted by the Tribe. It maintains
certified building officials and inspectors, and has awell-defined and
operating permit program.
• The Tribe has a National Pollution Discharge Elimination permit from the
U.S. Environmental Protection. The Tribal permit was designed to strict
standards, and is more stringent than similar permits held by local
jurisdictions. This permit provides a greater protection for surface waters
for impacts that may result from construction activities.
• The Tribal Wellhead Protection Plan was designed to protect the Tribal,
as well as the local, water supply. The Tribe was the first jurisdiction in
the area to complete and adopt a wellhead protection plan.
• Mdewakanton Fire and Emergency Services. Operating 24-hours a day by
full-time staff members, the Tribal fire department services trust land.
The department has mutual-aid agreements with several local volunteer
fire departments to provide service upon request.
9
Public Works provides various public services including street cleaning,
snow plowing, and debris removal.
• A habitat management plan for Tribal lands includes animal and
vegetative surveys as well as prairie and wetland restorations.
The Tribe is placed in a compromising position when attempting to meet its government
responsibilities under the concurrent jurisdiction of the State and local governmentsb.
Even in the absence of conflict, Tribal law is diluted as it seeks to meet its need under
concurrent jurisdiction. Concurrent jurisdiction results in additional expense by
duplicating efforts and the local governments' resources would not be employed by trust
status.
5. PURPOSE FOR WHICH THE LAND WILL BE USEDg
5.1. Proposed Use of the Land
The Subject Parcel will be used for governmental, institutional, and commercial
purposes for the Tribe (Appendix C, Plate 6). Governmental uses of the Subject Parcel
include maintenance of Tribal public service infrastructure, including: public water
supply, sanitary sewer, Dakota Parkway, and telecommunication. Institutional uses on
the land may include afull-service medical clinic. The land may be used to diversify the
economic base of the Tribe. A portion of the land will continue to be used as a parking
lot for Tribal employees. Furthermore, placing this land into trust and the declaration of
reservation status will place the Subject 1?arcel under the jurisdiction of the Tribe. All of
these uses are site specific.
5.1.1. Water supply infrastructure and maintenance
The Tribe's main public water supply wells, towers, and treatment plants are all
located adjacent to the Subject Parcel (Appendix C, Plate 5). Due to its location, the
Subject Parcel is the site of essential looped Tribal water mains. It is in the best interest
6 The construction of Dakota Parkway was a cooperative effect with the Tribe, Scott County, and the Cities
of Prior Lake and Shakopee. Where it crosses the Subject Parcel in the City of Prior Lake, this major four-
lane roadway is zoned as a "driveway". This classification allows the Tribe to maintain this roadway to its
own high standards, relieving the City of maintenance responsibility. However, the failure to officially
acknowledge this major Tribal roadway is demeaning to the sovereignty of the Tribe.
~ Where Dakota Parkway and employee parking lot were constructed on the Subject Parcel, the Tribe had to
acquiesce to the storm water management regulations of the City of Prior Lake. The Tribe's storm water
management techniques focus on most closely approximate the natural drainage system, whereas the City's
regulations focus on techniques that are more constructed.
s Required under 25 C.F.R. § 151.10 (c)
10
of the Tribe to have its water supply system fully within its own jurisdiction, rather than a
checkerboard pattern. The entire system was design and constructed by the Tribe using
its own funds. The Tribe operates and maintains the system. Proper governance requires
the Tribe to have full jurisdiction over its utilities.
5.1.2. Sanitary sewer infrastructure and maintenance
A highly reliable and efficient sanitary treatment system is crucial to the Tribe
and its economy. Due to its location, sanitary sewer lines and a major lift station are
location on the Subject Parcel (Appendix C, Plate 5). This infrastructure was designed
and constructed by the Tribe using its own funds. The Tribe operates and maintains the
sanitary treatment system. Proper governance requires the Tribe to have full jurisdiction
over its utilities.
5.1.3. Transportation efficiency and safety
Dakotah Parkway serves two primary purposes, as an additional access for Tribal
enterprises and as an overflow route for local county roads. This roadway was designed.
and constructed by the Tribe. Dakotah Parkway provides and internal route for the
Tribe's traffic between enterprises. The roadway is heavily used by tribal maintenance
staff, grounds keeping, and shuttle bus traffic. The roadway also provides alternate
entrances and exits to and from Tribal enterprises. This is especially useful during busy
periods and special events. Multiple entrances and exits allow the Tribe to control traffic
routing and decrease congestions on local county roads.
5.1.4. Telecommunication infrastructure and maintenance
Fiber optic corridors located on the Subject Parcel serve two purposes: it allows
the Tribe to meet regulatory requirements and provides modern telecommunication to
Tribal enterprises and members.
The Tribe's Gaming Commission is an independent Tribal government body that
regulates gaming pursuant to the Indian Gaming Regulatory Act. In order to comply with
applicable Federal regulations the Gaming Commission requires a secure, dedicated link
between all gaming establishments. This link must be completely separate from all other
telecommunications. The Gaming Commission also requires a 100% backup for this
link. The Subject Parcel provided most reasonable route for this link (Appendix C, Plate
5). This infrastructure is essential to the Tribe's economy. Such critical infrastructure
11
should be under the Tribe's jurisdiction, especially when Tribal and Federal regulations
impose these requirements.
In addition to the gaming requirements, the fiber optic lines will allow the tribe to
replace its overburdened and antiquated telephone system. This is an essential part of
public safety, infrastructure building, and to a lesser degree, economic development.
It is critical for the Tribe provide connection to the central and. south sections of
the Reservation. The most reasonable route for these connections was across the Subject
Parcel. This utility, like other Tribal government infrastructure, should be within the
jurisdiction of the Tribe's government, which is responsible for this utility.
5.1.5. Medical clinic
The Subject Parcel provides an excellent site for a Tribal full-service medical
clinic and dental clinic, which may also include a mental health and social services
center. Afull-service clinic would serve Tribal members, staff and employees, and the
American Indian population in Scott County. Such a clinic would serve to increase
medical care access by these groups, as well as helping the Tribe control medical costs
associated with its Tribal, Indian, and employee health care coverage. The planned clinic
must be located near the major Tribal enterprises to serve employees and must be
accessible to the American Indian population in Scott County. No other trust land is
available that meets these requirements and is available for use as a clinic site. For
jurisdictional clarity, this clinic should be under Tribal and federal jurisdiction.
5.1.6. Economic development
The subject parcel supports the existing economy with an employee parking lot
and a vendor entrance to Mystic Lake Casino and Hotel. All trust land is currently
developed and is not available to increase or diversify the Tribal economy.
Diversification of the economic base of the Tribe is crucial to the long-term success of
the Tribe. The Subject Parcel provides a potential enterprise site, adjacent to existing
Tribal enterprises. This allows the Tribe to take advantage of existing guest traffic.
5.1.7. Wellhead protection
The Tribe's Wellhead Protection Plan (WHPP) was adopted in 2002, and updated
in 2007. A significant portion of the associated Drinking Water Source Management
Area (DWSMA) lies on the Subject Parcel (Appendix C, Plate 4). A DWSMA is the area
12
where a contamination release would be most likely to impact the water supply. The
Tribe's WHPP restricts or prohibits certain land uses in the DWSMA.
The Tribe relies on wells as the sole source of water. The WHPP was designed to
protect this vital resource and function of the Tribal government. Full protection of the
WHPP is only ensured if the Tribe has jurisdiction over its own DWSMA.
5.1.8. Infrastructure maintenance
The Tribe will continue to maintain Tribal infrastructure located on the Subject
Parcel under trust status, including Dakotah Parkway, the public water supply, sanitary
sewer, and telecommunication (Appendix C, Plate 5). Currently, the Tribe must apply
for permits from local jurisdictions to perform maintenance on Tribal infrastructure. The
Tribe has similar permitting system in place, along with adequate staffing and resources.
Approval of the request for trust status and declaration of reservation status increases
Tribal sovereignty and decreases the Tribe's burden upon local jurisdictions.
5.1.9. Sovereignty
Tribal resources are best managed by the Tribe. Several Tribal plans,
commissions, and departments would di~°ectly be supported by the Tribe's exercise of
sovereignty on the Subject Parcel. These include:
• Tribal Wellhead Protection Plan. Tribal jurisdiction empowers the Tribe
to have direct control over its DWSMA. Two wells are located directly
north of the Subject Parcel, placing the Subject Parcel in a critical area of
the DWSMA. The plan dictates restricted and prohibited land uses to
secure the water supply.
• Tribal Gaming Commission. Tribal jurisdiction allows the Tribe to have
direct control over the dedicated fiber-optic lines that cross the Subject
Parcel and service casino located to the north and south. These lines are
required by Tribal and federal regulations for gaming operations. Full
security can only be guaranteed by Tribal jurisdiction.
• Tribal Utility Commission. Tribal jurisdiction allows the Tribe to have
direct control over utilities crossing the Subject Parcel. These utilities
include water supply, sanitary sewer, and telecommunication.
13
• Mdewakanton Fire and Emergency Services. Tribal jurisdiction allows
the fire department nearest to the Subject Parcel to directly service the
parcel. Furthermore, the water mains that supply the Tribal fire
department would be under Tribal jurisdiction increasing public safety.
• National Pollution Discharge Elimination System MS4 permit.
• National Pollution Discharge Elimination System Construction.
A variety of groups utilize Tribal resources, including Tribal members, its staff and
employees, the Scott County American Indian population, and Tribal guests. The
benefits to the public from Tribal jurisdiction over the Subject Parcel include a safe water
supply, quick fire and emergency service, and legal clarity.
6. IMPACT ON THE STATE AND ITS POLITICAL SUBDIVISIONS
RESULTING FROM THE REMOVAL OF THE LAND FROM THE TAX
ROLLS9
Property taxes paid on the Subject Parcel are an insignificant percentage of the
overall Scott County and City of Prior Lake budget. Removal of the land from the tax
rolls will result in a loss of approximately $14,300 per year in property taxes paid to the
political subdivisions of the State of Minnesota (Table 1 and 2). This is the full extent of
the impact on the state and local government tax receipts.
6.1.1. Table 1, Parcel Property Tax and Where It Goes
Year Parcel Tax County City State OtherX
2008 $32,524
2007 $31,192
2006 $14,324 $2,270 $2,084 $2,058 $7,909
2005 $ 3,924 $1,380 $1,268 $ 0 $1,274
2004 $ 3,376 $1,129 $1,062 $ 0 $1,183
2003 $ 2,760 $ 950 $ 951 $ 0 $ 857
Data Source: Parcel Properly Tax Statements.
* Includes school district levies, special. taxing districts, and non-school levies
9 Required under 25 C.F.R. § 151.10 (e)
14
Prior Lake Police and Fire $2,960,942 Scott County CR 42 / 83 $2,525,546
Scott County Transit $5,000 Shakopee SCALE Training Facility $4,000
Scott County Sirens $60,000 Shakopee Parks $70,233
Scott County CR 82 Upgrade $2,000,000 Shakopee McKenna Road $242,095
Total $13,872,531
• Data Source: Tribal accounting.
6.1.4. Table 4. Tribal contributions to Scott County econom y
2002 2003 2004 2005
Vendor payments in $5,261,956 $7,999,721 $8,216,724 $9,440,599
Scott County
Payroll paid to $51,042,593 $50,998,782 $53,803,695 $54,122,307
Scott County residents
* Data source: Tribal accounting and payroll. Data includes payments and payroll from all Tribal
enterprises and government activities.
7. JURISDICTIONAL PROBLEMS AND POTENTIAL CONFLICTS OF LAND
USE12
A trust acquisition of the Subject Parcel does not conflict with adjacent land uses,
existing or planned. The land directly to the north, northwest, south and southeast of the
Subject Parcel is trust land. These lands are under the land use planning authority of the
Tribe. The body of water known as Mystic Lake is located to the northeast. Directly to
the east is a parcel of land owned by the Tribe and is currently the subject of another trust
acquisition request. Land to the west and southwest is owned in fee by the Tribe. There
is little or no possibility for any land use conflict.
Given the planned uses and location of this land relative to other Tribal trust land,
trust status will prevent rather than create jurisdictional problems. Environmental
regulations will be consistent with the adjacent properties. It places Dakota Parkway
12 Required under 25 C.F.R. § 151.10 (fl
16
under a single jurisdiction, the jurisdiction that constructed and maintains the roadway.
Public water supply, sanitary sewer and telecommunication regulation will be consistent
with adjacent parcels. If the land is acquired in trust, then there will be little or no
possibility for jurisdictional problems or potential conflicts.
8. ADDITIONAL RESPONSIBILITIES THAT MAY ACCRUE TO THE
BUREAU OF INDIAN AFFAIRS~3
Additional responsibilities that may accrue to the BIA are minimal. There will be
a slight increase in the BIA road inventory mileage. The Tribe may request BIA
assistance for certain activities carried out as part of the BIA trust responsibility, which
involves land and environmental issues. Such requests will constitute an insignificant
increase in the BIA's responsibilities because the proposed trust acquisition will result in
a slight increase to the Tribe's reservation and trust land base. Therefore, the additional
responsibilities that may accrue to the BIA is nominal.
9. INFORMATION REGARDING 516 DM 6, APPENDIX 4, NATIONAL
ENVIRONMENTAL POLICY ACT AND 602 DM 2, LAND ACQUISITIONS:
HAZARDOUS SUBSTANCES DETERMINATIONSIa
9.1. Phase One Hazardous Materials Survey
A phase one survey completed by Summit Environmental for the Tribe is
enclosed in Appendix E. This survey will require updating either by a contractor paid by
the Community and reporting to the BIA or by BIA staff.
9.2. Environmental Assessment
This trust acquisition request is accompanied by a separate Environmental
Assessment concerning the Subject Parcel. The primary potential impact is water quality
related to stormwater runoff. The Tribe is subject to a federal NPDES permit regulating
how it handles stormwater.
10. REFERENCES
Shakopee Mdewakanton Sioux Community. 2002. Wellhead Protection Plan.
Prior Lake, Minnesota.
Shakopee Mdewakanton Sioux Community. 2006. Faunal Report. Prior Lake,
Minnesota.
is Required under 25 C.F.R. § 151.10 (g)
is Required under 25 C.F.R. § 151.10 (h)
17
Shakopee Mdewakanton Sioux Community. 2000. Comprehensive Land Use
Plan. Prior Lake, Minnesota.
State of Minnesota Auditors Office. 2006. City and County Financial Database.
http://www.auditor.state.mn.us/ Accessed February 2007.
18
11. APPENDIX A, FEDERAL REGISTER LISTING FOR SHAKOPEE
MDEWAKANTON SIOUX COMMUNITY
A-1
12. APPENDIX. B, GENERAL COUNCIL RESOLUTIONS AND ORDINANCE
B-1
13. APPENDIX C, PLATES
D-1
Plate 1, Regional Location Map
D-2
Plate 2, Subject Parcel Location Map and Current Land Use
D-3
Plate 3, Subject Parcel Proposed Land Use
D-4
14. APPENDIX D, SURVEY OF SUBJECT PARCEL
D-1
15. APPENDIX E, LEVEL ONE HA7ARDOUS MATERIALS SURVEY
16. APPENDIX H, WARRANTY DEED
H-1
17. APPENDIX I, TITLE INSURANCE COMMITMENT
18. APPENDIX J, TRIBAL HEALTH DEPARTMENT LETTER
19. APPENDIX E, PHASE I HAZARDOUS MATERIALS SURVEY
H-2
20. APPENDIX F, WILDLIFE STATUS ON SMSC LANDS
Data source-SMSC 2005 Faunal Report: Animals present on and near lands held by the Shakopee
Mdewakanton Sioux Community.
Breeding bird status
• Possible indicates that the species was observed or heard in suitable nesting habitat during its breeding season.
• Probable indicates that the species' behavior suggests breeding.
• Confirmed indicates that species' nest, eggs, young or feeding behavior has been observed.
Mammal, reptile, and amphibian status
• Possible indicates that the species may be present on based on published ranges.
• Confirmed indicates that the species has been directly observed.
Wildlife observed on the subject parcel are highlighted in gray.
Table El. Breeding Bird Status on SMSC Land. Bird species in taxonomic order and number of grids where bird
was observed as breeding from 2001 to 2005. Non-breeding and migratory birds also indicated.
Common Name Scientific Name Possible Probable Confirmed Percent Occurrence
Canada Goose Branca canadensis 2 4 16 34%
Wood Duck Aix sponsa 1 10 7 28%
Gadwall Anas strepera 0 0 0 A
Mallard Anas platyrhynchos 6 14 13 51
Blue-winged Teal Anas discors 6 10 6 34%
Northern Shoveler Anas clypeata 0 0 0 A
Northern Pintail Anas acuta 0 1 0 B
American Green-winged Teal Anas crecca 0 Z 0 3%
Canvasback Aythya valisineria 0 0 0 A
Redhead Aythya americana 0 0 0 A
Ring-necked Duck Aythya collaris 0 0 0 A
Hooded Merganser Lophodytes czrczrllatus 1 3 7 17%
Ruddy Duck Ozyurajamaicensis 1 0 0 1%
Gray Partridge Perdix perdix 0 0 1 D
Ring-necked Pheasant Phasianzrs colchicus 13 15 3 48%
Wild Turkey Meleagris gallapavo 5 5 3 20%
Common Loon Gavia immer 1 0 0 1%
Pied-billed Grebe Podilymbzrs podiceps 6 2 2 15%
Double-crested Cormorant Phalacrocorax auritus 0 0 0 A,C
American Bittern Botaurus lentiginosus 1 0 0 1%
Least Bittern Ixobrychus exilis 1 0 0 1%
Great Blue Heron Ardea herodtas 0 0 0 A,C
Great Egret Ardea alba 0 0 0 A,C
Cattle Egret Bubulcus ibis 0 0 0 A,C
Green Heron Bzrtorides virescens 8 5 2 23%
H-3
Black-crowned Night Heron Nycticorax nycticorax 0 0 0 A,C
Turkey Vulture Cathartes aura 1 0 0 1%
Bald Eagle''2 Aaliaeetus leucocephalus 0 0 0 A
Sharp-shinned Hawk Accipter striatus 2 0 0 3%
Cooper's Hawk Acctpiter cooperii 8 1 0 14%
Northern Goshawk Accipiter gentilis 0 0 0 A
Broad-winged Hawk Buteoplatypterus 2 3 2 I1%
Red-tailed Hawk Buteo jamatcensis 13 3 0 25%
American Kestrel Falco sparverius 5 2 2 14%
Virginia Rail Ra/lus limicola 3 7 0 15%
Sora Por~ana Carolina 4 10 2 25%
American Coot Farlica americana 5 1 2 12%
Killdeer Charadrius vocifenrs 13 17 7 57%
Yellowlegs Tringa spp. 0 0 0 A
Solitary Sandpiper Tringa solitaria 0 0 0 A
Spotted Sandpiper Actitus macularia 4 8 3 23%
H-4
Table E1. Continued
Common Name Scientific Name
Short-billed Dowitcher Limnodromus griseus
Common Snipe Gallinago gallinago
American Woodcock Scolopax minor
Ring-billed Gull Larus delawarensis
Forester's Tem Sterna forstert
Black Tem Chlidonias niger
Rock Pigeon Columba Livia
Mourning Dove Zenatda ntacroura
Black-billed Cuckoo Coccyrzrs erythropthalmus
Yellow-billed Cuckoo Coccyaus americanus
Eastern Screech Owl Otus asio
Great Horned Owl Bubo virginianus
Barred Owl Strix varia
Common Nighthawk Chordeiles ntinor
Chimney Swift Chaetura pelagica
Ruby-throated Hummingbird Archilochus colubris
Belted Kingfisher Ceryle alcyon
Red-headed Woodpecker Melanerpes erythrocephalus
Red-bellied Woodpecker Malanerpes corolinus
Yellow-bellied Sapsucker Sphyrapicus varius
Downy Woodpecker Picoides pubescens
Hairy Woodpecker Picoides villoszrs
Northern Flicker Colaptes auratus
Pileated Woodpecker Dryocopuspileafus
Eastern Wood-pewee Contopus sordidulus
Willow Flycatcher Empidonax traillii
Least Flycatcher Empidonax ntinimus
Eastern Phoebe Sayornisphoebe
Great-crested Flycatcher Myiarchzrs crinitzrs
Eastern Kingbird Tyrannzrs ryrattnzzs
Wazbling Vireo Vireo gilvzrs
Red-eyed Vireo Vireo olivaceus
Blue Jay Cyanocitta cristata
American Crow Corvus brachyrhynchos
Horned Lark Eremophila alpestris
Purple Martin Progne subis
Tree Swallow Tachycineta bicolor
Northern Rough-winged Swallow Stelgidopteryx serripennis
Bank Swallow Riparia riparia
Cliff Swallow Petrochelidon pyrrhonota
Barn Swallow Hirundo rustica
Black-capped Chickadee Parus atricapillars
White-breasted Nuthatch Sitta carolinensis
Possible Probable Confirmed Percent Occurrence
0 0 0 A
5 0 0 8%
0 1 0 1%
0 0 0 C
0 0 0 A
2 1 1 6%
2 4 1 11%
18 28 2 74%
0 0 0 E
0 0 0 E
0 0 0 E
2 4 0 9%
2 5 0 11%
2 0 0 3%
5 2 0 11%
9 3 1 20%
3 0 0 5%
1 0 0 1%
13 6 2 32%
0 0 0 E
17 8 9 52%
10 5 3 28%
15 2 4 32%
6 4 0 15%
12 8 3 35%
16 9 1 40%
14 6 1 32%
11 10 1 34%
9 19 1 45%
13 15 0 43%
5 4 0 14%
10 15 2 42%
17 17 4 58%
21 19 1 63%
7 19 0 40%
1 0 0 F (1%)
12 7 21 62%
0 0 0 E
I 0 0 1%
1 0 2 5%
7 13 12 49%
5 28 8 63%
13 15 6 52%
Table E1. Continued
Common Name Scientific Name Possible Probable Confirmed Percent Occurrence
Brown Creeper Certhia americans 2 0 0 3%
House Wren Troglodytes aedon 5 23 16 68%
Sedge Wren Cistothonrs platensis 4 8 0 18%
Marsh Wren Cistothonrs pahrstris 2 8 1 17%
Ruby-crowned Kinglet Regulus calendula 0 0 0 A
Eastern Bluebird Sialia sialis 7 2 17 40%
Veery Catharusfruscescens 0 0 0 E
Swainson's Thmsh Catharus ustulatus 0 0 0 A
Hermit Thrush Catharus guttatus 0 0 0 A
Wood Thrush Hyloctchla mustelina 2 3 0 8%
American Robin Turdus migratoritrs 16 6 28 77%
Gray Catbird Dtrmetella carolinensis 12 25 9 71%
Brown Thrasher Toxostoma rt~rm 9 8 3 31%
European Starling Sturnus vulgaris 4 3 15 34%
Cedar Waxwing Bontbycilla cedrorunz 10 10 8 43%
Blue-winged Warbler Vermivorapinus 1 0 0 1%
Golden-winged Warbler Vermivora chrysoptera 0 0 0 A
Tennessee Warbler Vermivora peregrina 0 0 0 A
Orange-crowned Warbler Vermivora celata 0 0 0 A
Nashville Warbler Vermivora ruficapilla 0 0 0 A
Yellow Warbler Dendrotcape petechia 11 20 7 58%
Chestnut-sided Warbler Dendroicapensylvanica 1 0 0 1%
Magnolia Warbler Denrotca magnolia 0 0 0 A
Yellow-rumped Warbler Dendroica coronata 0 0 0 A
Black-throated Green Warbler Dendroica virens 0 0 0 A
Blackburnian Warbler Dendroicafusca 0 0 0 A
Pine Warbler Dendroica pinus 0 0 0 A
Palm Warbler Dendroica palmarum 0 0 0 A
Black-and-white Wazbler Mniotilta varia 0 0 0 A
American Redstart Setophaga nrticilla 9 3 0 18%
Ovenbird Seizrrus aurocapillus 7 2 0 14%
Northern Waterthrush Seizrrzrs noveboracensis 0 0 0 A
Connecticut Warbler Oporornis agilis 0 0 0 A
Common Yellow[hroat Geothylpis trichas 10 33 4 72%
Wilson's Warbler Wtlsoniapusilla 0 0 0 A
Scarlet Tanager Piranga olivacea 3 2 0 8%
Eastern Towhee Pipilo erythrophthalmus 2 0 0 G
Chipping Sparrow Spi=ells passerina 9 24 15 74%
Clay-colored Sparrow Spi_>ella pallida 4 6 1 17%
Field Sparrow Spizella pusilla 6 6 3 23%
Vesper Sparrow Pooecetes gramineus 17 18 2 57%
Lark Sparrow Chondestesgrammacus 0 0 1(1) 1%H
Savanna Sparrow Passerculars sandrvichensis 8 17 2 42%
Table El. Continued
Common Name Scientific Name Possible Probable Confirmed Percent Occurrence
Grasshopper Spazrow Ammodramus savannarum 7 4 1 18%
Nelson's Sharp-tailed Sparrowz Ammodramus caudacutus 0 0 0 A
Song Sparrow Melospi~a melodia 4 35 19 89%
Lincoln's Sparrow Melospi=a lincolnii 0 0 0 A
Swamp Sparrow Melospi~a georgiana 5 6 2 20%
White-throated Sparrow Zonotrichia albtcollis 0 0 0 A
Harris' Sparrow Zonotrichia querula 0 0 0 A
White-crowned Sparrow Zonotrichia leucophrys 0 0 0 A
Northern Cardinal Cardinalis cordinalis 13 28 7 74%
Rose-breasted Grosbeak Pheucticus ludovicianrrs 8 11 2 32%
Indigo Bunting Passerina cyanea 11 24 3 58%
Dickcissel Spiza americana 5 12 1 28%
Bobolink Dolichonyx ory=ivorus 3 4 1 12%
Red-winged Blackbird Agelaizrs phoenicezrs 7 9 22 58%
Eastern Meadowlark Sturnella magna 1 2 0 5%
Yellow-headed Blackbird Xanthocephalusxanthocepholzrs 6 2 5 20%
Brewer's Blackbird Euphagus cyanocephalus 0 0 0 A
Common Grackle Ozriscalzrs guiscala 11 10 14 54%
Brown-headed Cowbird Molothrus ater 5 47 4 86%
Orchazd Oriole Ictenrs spurius 0 0 0 A
Baltimore Oriole Ictenrs galbzrta 16 9 2 42%
House Finch Carpodaczrs mecicanus 4 15 10 45%
American Goldfinch Cardezrlis tristis 10 41 2 82%
House Sparrow Passer domesticus 4 9 24 57%
Minnesota Special Concern Status
2 Federally Threatened
A. Species observed as non-breeding
B. Northern Pintail observed during the first two years of a wetland restoration project. This bird has not
been observed since that time
C. Species non-breeding because SMSC lacks suitable breeding habitat
D. A Gray Partridge brood was observed during the first year of surveys (2001) but we have not made any
additional observations of adults or young since that time
E. These species have never been observed on SMSC lands but the literature indicates that they should
occur
F. Purple Martin only observed once in the five years tha t we have cond ucted surveys
G. Eastern Towhee likely no longer occurs as a breeding bird. Both sample units where the bird was
observed have been developed.
H. Lark Sparrow likely no longer occurs as a breeding bi rd. The sample unit where the bird was obser ved
has since been developed
Table E2. Mammal Status on SMSC Lands.
Common Name Scientific Name Status
Virginia Opossum Didelphis virginiana Confirmed
Northem Short-tailed Shrew Blarinc: brevicauda Confirmed
Masked Shrew Sorex cinereus Confirmed
Pygmy Shrew Microsorex hoyi Possible
Star-nosed Mole Condylura cristata Possible
Eastem Mole Scalopres aquaticus Possible
Big Brown Bat Eptesicus fuscus Possible
Silver-haired Bat Lasionvcteris noctivagans Possible
Red Bat Lasiurzcs borealis Possible
Hoary Bat Lasiurzzs cinereus Possible
Little Brown Bat Myotis luc~zgus Possible
Eastern Pipistrelle' Ptpistrellus subflavus Possible
Coyote Canis latrans Confirmed
Gray Fox Urocyon cinereoargenteus Possible
Red Fox Vulpes vulpes Confirmed
Common Raccoon Procyon lotor Confirmed
Northem River Otter Lontra canadensis Confirmed
Ermine Mustela erminea Possible
Long-tailed Weasel Musteb2 frenata Possible
Least Weasel' Mustela nivalis Confirmed
American Mink Mustela visors Confirmed
American Badger Taxidea taxus Confirmed
Striped Skunk Mephitis mephitis Confirmed
Southern Flying Squirrel Glaucamys volans Possible
Woodchuck Marmata rnonax Confirmed
Eastem Gray Squirrel Sciurus carolinensis Confirmed
Eastem Fox Squirrel Sciurus niger Possible
Franklin's Ground Squirrel Spermophilis franklinii Possible
Thirteen-lined Ground Squirrel Spermophilis tridecemltneatus Confirmed
Eastem Chipmunk Tamias striatus Confirmed
Red Squirrel Tamiasciurus hudonicus Confirmed
Plains Pocket Gopher Geomys bz~rsarizzs Possible
American Beaver Castor canadensis Confirmed
Plains Pocket Mouse' Perognathus flavescens Possible
Southem Red-backed Vole Clethrionomys gapperi Possible
Prairie Vole' Microtz~s orchrogaster Possible
Meadow Vole Microtus pennsylvantcus Confirmed
House Mouse Mus musculus Confirmed
Muskrat Ondatra zibethicus Confirmed
White-footed Mouse Peromyscus leucopus Confirmed
Deer Mouse Peromyscus maniculatus gractlis Possible
Norway Rat Rattus norvegicus Confirmed
Western Harvest Mouse ReithrcKlontomys megalotis Possible
Southern Bog Lemming Synaptomys cooperi Possible
Common Name Scientific Name Status
Meadow Jumping Mouse Zapus hudsonicus Confirmed
White-tailed Deer Odocotleus virginianus Confirmed
White-tailed Jackrabbit Lepus townsendii Confirmed
Eastern Cottontail Sylvilagus floridanus Confirmed
' Minnesota Special Concern
Table E3. Amphibian status on SMSC land.
Common Name Scientific Name Status
Blue-Spotted Salamander Ambystoma laterale Possible
Tiger Salamander Ambystoma tigrinum Confirmed
Eastern Newt Notophthalmus viridescens Possible
Mudpuppy Necturus maculosus Possible
American Toad Bufo americanus Confirmed
Cope's Gray Tree Frog Hyla chrysoscelis Possible'
Gray Tree Frog Hyla versicolor Confirmed)
Spring Peeper Pseudacris crucifer Confirmed
Western Chorus Frog Pseudacris triseriata Confirmed
Bullfrog Rana catesbeiana Possible
Green Frog Rana clamitans Possible
Northern Leopard Frog Rana pipiens Confirmed
Wood Frog Rana sylvatica Confirmed
'Both of the tree frog species may be present on, or near, SMSC lands but we believe that Gray
Tree Frog is the species observed during surveys. Identification is difficult because we do not have the
opportunity to observe the species together.
Table E4. Reptile status on SMSC lands.
Common Name Scientific Name Status
Snapping Turtle' Chelydra serpentina Confirmed
Painted Turtle Chrysemys pitta Confirmed
Blanding's Turtle a Emydoidea blandingii Possible
Spiny Softshell Apalone spinifera Possible
Prairie Skink Eumeces septentrionalis Possible
Racer' Coluber constictor Possible
Fox Snake Elaphe vulpina Possible
Western Hognose Snake' Heterodon nasicus Possible
Eastern Hognose Snake Heterodon platirhinos Possible
Milk Snake Lampropeltis triangulum Possible
Northern Water Snake Nerodia sipedon Possible
Smooth Green Snake Opheodrys vernalts Confirmed
Gopher Snake' Pitzrophis catenifer Possible
Brown Snake Storeria dekayi Possible
Redbelly Snake Storeria occipitomaczrlata Confirmed
Plains Garter Snake Thamnophis radix Probable
Common Garter Snake Thamnophis sirtalis Confirmed
Minnesota Special Concern
z Minnesota Threatened
Table K2. Mammal Stat us on SMSC bands.
Common Name Scientific Name Status
Virginia Opossum Didelphis virginiana Confirmed
Northern Short-tailed Shrew Blarinc: brevicauda Confirmed
Masked Shrew Sorex c:inereus Confirmed
Pygmy Shrew Microsorex hoyi Possible
Star-nosed Mole Condylura cristata Possible
Eastem Mole Scalopus aquaticus Possible
Big Brown Bat Eptesicus fzrsczrs Possible
Silver-haired Bat Lasionycteris noctivagans Possible
Red Bat Lasiurus borealis Possible
Hoary Bat Lasiurus cinereus Possible
Little Brown Bat Myotis luc~gus Possible
Eastern Pipistrelle' Pipistrellus subflavus Possible
Coyote Canis latrans Confirmed
Gray Fox Urocyon cinereoargenteus Possible
Red Fox Vulpes vulpes Confirmed
Common Raccoon Procyon lotor Confirmed
Northern River Otter Lontra canadensis Confirmed
Ermine Mustela erminea Possible
Long-tailed Weasel Mustela frenata Possible
Least Weasel' Mustela nivalis Confirmed
American Mink Mustela vison Confirmed
American Badger Taxidea taxus Confinned
Striped Skunk Mephitis mephitis Confirmed
Southem Flying Squirrel Glauccrmys volans Possible
Woodchuck Marmota monax Confirmed
Eastern Gray Squirrel Sciurus carolinensis Confirmed
Eastern Fox Squirrel Sciurus niger Possible
Franklin's Ground Squirrel Spermophilisfranklinii Possible
Thirteen-lined Ground Squirrel Spermophilis tridecemlineatus Confirmed
Eastern Chipmunk Tamias striates Conferred
Red Squirrel Tamiasciurus hudonicus Confirmed
Plains Pocket Gopher Geomys bursaries Possible
American Beaver Castor canadensis Confirmed
Plains Pocket Mouse' Perogrrathus flavescens Possible
Southem Red-backed Vole Clethrionomys gapperi Possible
Prairie Vole' Microtus orchrogaster Possible
Meadow Vole Microtuspennsylvanicus Confirmed
House Mouse Mus muscuhcs Confirmed
Muskrat Ondau~a ~ibethicus Confirmed
White-footed Mouse Peromyscus leucopzrs Confirmed
Deer Mouse Peromyscus mantculatus gracilis Possible
Norway Rat Rattus norvegicus Confirmed
Western Harvest Mouse Reithrodontomys megalotis Possible
Southern Bog Lemming Synaptomys cooperi Possible
Common Name Scientific Name Status
Meadow Jumping Mouse Zapus hudsonicus Confirmed
White-tailed Deer Odocoileus virginianus Confirmed
White-tailed Jackrabbit Lepus toivnsendii Confirmed
Eastern Cottontail Sylvilagus flortdanus _ Confirmed
' Minnesota Special Concern
Table K3. Amphibian status on SMSC land.
Common Name Scientific Name Status
Blue-Spotted Salamander Ambystoma laterale Possible
Tiger Salamander Ambystoma tigrinum Confirmed
Eastern Newt Notophthalmus viridescens Possible
Mudpuppy Necturus n:aculosus Possible
Eastern Newt Notophthalmus viridescens Possible
American Toad Bzfo americanus Confirmed
Cope's Gray Tree Frog Hyla chrysoscelis Possible`
Gray Tree Frog Hyla versic:olor Confirmed`
Spring Peeper Pseudacris~ crucifer Confirmed
Western Choms Frog Pseudacrts triseriata Confirmed
Bullfrog Rana catesbeiana Possible
Green Frog Rana clamitans Possible
Northern Leopard Frog Rana pipiens Confirmed
Wood Frog Rana sylvatica Confirmed
'Both of the tree frog species maybe present on, or near, SMSC lands but we believe that Gray
Tree Frog is the species observed during surveys. Identification is difficult because we do not have the
opportunity to observe the species together.
Table K4. Reptile status on SMSC lands.
Common Name Scientific Name Status
Snapping Turtle' Chelydra serpentina Confirmed
Painted Turtle Chrysemyspicta Confirmed
Blanding's Turtle z Emydoidea blandtngii Possible
Spiny Softshell Apalone spinifera Possible
Prairie Skink Eumeces septentrtonalis Possible
Racer' Coluber constictor Possible
Fox Snake Elaphe vulpina Possible
Western Hognose Snake' Heterodon nasicus Possible
Eastern Hognose Snake Heterodon platirhinos Possible
Milk Snake Lampropeltis triangulum Possible
Northern Water Snake Nerodia sipedon Possible
Smooth Green Snake Opheodrys vernalis Confirmed
Gopher Snake' Pituophis catenifer Possible
Brown Snake Storerta dekayi Possible
Redbelly Snake Storeria occipitomaczrlata Confirmed
Plains Garter Snake Thamnophis radix Probable
Common Garter Snake Thamnophis sirtalis Confirmed
` Minnesota Special Concern
z Minnesota Threatened