Archive for Thursday, January 30, 2003

Tribe’s Sunflower bid hit with setbacks

January 30, 2003

Two recent legal actions appear to have harmed the Shawnee Indian's claim to property at the Sunflower Army Ammunition Plant.

Mark Duffy, senior counsel with the U.S. General Services Administration's greater southwest district, said Tuesday a solicitor's opinion from the U.S. Bureau of Indian Affairs that found Sunflower isn't Indian land "is in the mail."

Duffy referred comment on the meaning of the opinion to the Bureau of Indian Affairs treaty attorney. Citing pending legal action, the attorney, David Moran, deferred comment to the U.S. Justice Department, which in turn referred questions back to Moran.

Although he was mum on the meaning of the opinion, Duffy did comment on what it meant to the GSA.

"We believe we have the ability to proceed with the disposal of Sunflower, unless the court rules otherwise," he said. "The court will have the final say."

While cautioning he hasn't seen the opinion, an attorney familiar with the case who wished to remain unnamed said the opinion appeared germaine to the tribe's request for Sunflower under a statute that states disposed federal land reverts to a tribe if it was reservation land when the government took possession of the property (1941 in the case of Sunflower).

Greg Pitcher, the Shawnee Tribe's economic development director, said he hadn't seen the opinion. But he promised the tribe would contest a ruling stating Sunflower wasn't reservation land.

"The whole question of reservation status is complex," he said. "Sunflower was part of the Shawnee reservation established in 1854. No act of Congress has ever disestablished that reservation."

Duffy and Blaine Hastings, GSA Sunflower project agent, agreed the Shawnee's lawsuit is headed to court.

The court in this case will be the U.S. District Court of Kansas City, Kan. In another setback to the Shawnee, a federal judge in the U.S. District Court of Washington, D.C., has agreed to the Department of Justice and GSA's request to transfer the venue of the case from the nation's capital to the Kansas court.

The tribe is also requesting Sunflower property through a public benefit transfer, the same process the city of De Soto is pursuing to obtain the water treatment facility at the closed plant. The GSA maintains the Shawnee missed the deadline to apply for a public benefit transfer.

In yet another example of what might be called the Sunflower-time syndrome -- the tendency for all actions at the closed plant to take much longer than expected -- a key document needed in the transfer of the Sunflower Army Ammunition Plant is expected to be released in the next two to three weeks.

The document, the finding of suitability for early transfer, was expected to be released in early December. Hastings said he now expected the document to be issued in the next two or three weeks.

The finding would allow Sunflower property to be transferred before all the plant's acres are cleaned of environmental pollutants, an exception to federal law. It would find the property is suitable for the use intended by developer and that the intended use is consistent with protection of human health and the environment.

The release of the finding will start a 30-day public comment period. At the end of that time, the document must be signed by Gov. Kathleen Sebelius before an early transfer can occur.

Another document in advance of a transfer should also be finished in the coming weeks with the release of a study on the historical sites on the plant, Hastings said. The final draft will contain a memorandum of agreement, listing the things future owners of Sunflower property have to do to preserve historical sites.

The federal government agreed to complete the historical study after Taxpayers Opposed To Oz Inc. made it an issue in a suit in Kansas City, Kan., District Court in August 2000. At that time, TOTO also asked the court to force the federal government to complete an environmental impact study on Sunflower prior to any transfer.

The GSA and Army argues that the completion of yet another document on Sunflower, a finding of no significant impact, released it from the need to do an environmental impact study. Hastings said with the completion of the historical study, the federal government will ask the judge to dismiss TOTO's environmental complaint.

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