Butte Cnty. v. Chaudhuri

• Citation: 887 F.3d 501
• Decision Date: 13 April 2018
• Docket Number: No. 16-5240,16-5240
• Parties: BUTTE COUNTY, CALIFORNIA, Appellant v. Jonodev Osceola CHAUDHURI, Chairman, National Indian Gaming Commission, et al., Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

887 F.3d 501

BUTTE COUNTY, CALIFORNIA, Appellant

v.Jonodev Osceola CHAUDHURI, Chairman, National Indian Gaming Commission, et al., Appellees

No. 16-5240

United States Court of Appeals, District of Columbia Circuit.

Argued September 15, 2017

Decided April 13, 2018

Dennis J. Whittlesey, Jr., Washington, DC, argued the cause and filed the briefs for appellant.

Jeffrey S. Beelaert, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, and William B. Lazarus and Robert P. Stockman, Attorneys.

Michael J. Anderson argued the cause and filed the brief for tribal appellee Mechoopda Indian Tribe of Chico Rancheria, California.

Before: Rogers, Srinivasan and Pillard, Circuit Judges.

Srinivasan, Circuit Judge:

The Indian Gaming Regulatory Act allows a federally-recognized Indian tribe to conduct gaming on lands held in trust by the Secretary of the Interior for the tribe's benefit. 25 U.S.C. §§ 2710(b)(1), 2703(4)(B). The authorization to conduct gaming generally applies only if the lands had been taken into trust as of the Act's effective date of October 17, 1988. Id. § 2719(a). But the Act permits gaming on lands that are taken into trust after that date "as part of ... the restoration of lands for an Indian tribe that is restored to Federal recognition." Id. § 2719(b)(1)(B)(iii). That exception for "restored lands" helps ensure "that tribes lacking reservations when [the Act] was enacted are not disadvantaged relative to more established ones." City of Roseville v. Norton , 348 F.3d 1020, 1030 (D.C. Cir. 2003).

In 1992, the Mechoopda Tribe regained its federal recognition. Twelve years later, the Tribe asked the Secretary to take into trust a 645-acre parcel in Chico, California, so that the Tribe could operate a casino on the property. The Tribe argued that it could conduct gaming on the property because the parcel qualified as "restored lands" within the meaning of the statutory exception. The Secretary agreed with the Tribe, but this court vacated the Secretary's decision and remanded the matter for further proceedings. Butte Cty. v. Hogen , 613 F.3d 190 (D.C. Cir. 2010).

In 2014, the Secretary reconsidered the issue and again held that the Chico parcel constitutes "restored lands." Butte County, where the parcel is located, sued in federal district court, arguing that the Secretary's decision was procedurally defective and substantively unreasonable. The district court rejected the County's challenge and upheld the Secretary's decision. We affirm the district court's judgment.

I.

A.

This case concerns the Indian Gaming Regulatory Act's restored-lands exception. That exception, as noted, permits gaming on property taken into trust after the Act's effective date "as part of ... the restoration of lands for an Indian tribe that is restored to Federal recognition." 25 U.S.C. § 2719(b)(1)(B)(iii). To meet that exception, a tribe that has regained its federal recognition must prove (among other things) that it has "a significant historical connection to the land" at issue. 25 C.F.R. § 292.12(b) ; see Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney for W. Dist. of Mich. , 198 F.Supp.2d 920, 935 (W.D. Mich. 2002).

In 2002, the Mechoopda Tribe asked the Department of the Interior—specifically, the National Indian Gaming Commission—to provide an opinion as to whether the 645-acre Chico parcel would qualify as "restored lands." The Commission's Office of General Counsel said the parcel would qualify, so the Tribe applied for the land to be held in trust to enable the development and operation of a casino on the property. Before the Secretary could issue a notice of final decision, Butte County, seeking to dispute the treatment of the parcel as restored lands, submitted a report authored by a history professor, Dr. Stephen Beckham. Beckham's report concluded that, although the pre-1850 Mechoopda Tribe arguably had historical connections to the Chico parcel, the modern Tribe was not biologically descended from the pre-1850 Tribe. Beckham opined that the modern Tribe thus lacked the requisite historical connection to the parcel.

The Secretary issued a final decision taking the land into trust, but without giving express consideration to the Beckham report. Butte County challenged the Secretary's decision in federal district court. The court ruled in favor of the agency. Butte Cty. v. Hogen , 609 F.Supp.2d 20, 28-30 (D.D.C. 2009). On appeal, we held that, by failing to give reasons for rejecting the Beckham report, the Secretary had "violate[d] the minimal procedural requirements" applicable in an informal agency adjudication. Butte Cty. , 613 F.3d at 194.

On remand, the Secretary opted to reopen the administrative record. The Secretary gave the County 30 days to introduce new evidence and gave the Tribe 30 days to respond. In a letter the County alleges was sent only to the Secretary (not the County), the Tribe requested a 15-day extension, which the Secretary granted. The Tribe then submitted an expert report prepared by Dr. Shelly Tiley, an anthropologist. The report purported to rebut Beckham's conclusion that the modern Mechoopda Tribe was not descended from the pre-1850 Mechoopda Tribe. The Secretary then announced that the record was closed.

A week later, the County wrote to the Secretary, requesting permission to respond to Tiley's report. The Secretary agreed and granted the County 20 days. The County responded that the 20-day timeframe was inadequate, but the County made no request for an extension of time. The Secretary thereafter issued a decision taking the Chico parcel into trust under the restored-lands exception.

The County again challenged the Secretary's decision in district court. The County argued that the Secretary had violated the Administrative Procedure Act in four ways: (i) by reopening the record on remand, (ii) by granting the Tribe a 15-day extension, (iii) by giving the County only 20 days to respond to Tiley's report, and (iv) by issuing a substantive decision that was arbitrary and capricious. In support of its substantive challenge, the County submitted a second report prepared by Beckham in 2014, this one a direct response to Tiley's report.

Both parties moved for summary judgment, and the district court granted the Secretary's motion. This appeal followed.

II.

The County raises both procedural and substantive challenges to the Secretary's decision to treat the Chico parcel as restored lands on which the Tribe may operate a casino. We, like the district court, see no basis to set aside the Secretary's decision.

A.

We first consider the County's procedural objections to the Secretary's determination. When the Secretary considers an application to take lands into trust under the restored-lands exception, the agency, we have explained, engages in "what is known as informal agency adjudication." Butte Cty. , 613 F.3d at 194. For that type of agency action, the "[g]overning procedural rules" are supplied by § 555(e) of the Administrative Procedure Act. Id. Under that provision, an agency, when denying an application, must give the applicant "[p]rompt notice ... accompanied by a brief statement of the grounds for [the] denial." Agencies can voluntarily go beyond the procedural requirements of the Administrative Procedure Act, but courts generally cannot compel agencies to do more than the statute demands (unless additional procedural safeguards are necessary to satisfy due process requirements). See Pension Benefit Guar. Corp. v. LTV Corp. , 496 U.S. 633, 653-56, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) ; Dist. No. 1, Pac. Coast Dist. Marine Engineers' Beneficial Ass'n v. Mar. Admin. , 215 F.3d 37, 42-43 (D.C. Cir. 2000).

Here, the County first contends that the Secretary erred by reopening the administrative record on remand. The remand came about after we vacated the Secretary's initial decision to take the Chico parcel into trust because the Secretary had failed to consider Beckham's 2006 report. Butte Cty. , 613 F.3d at 194-95. We remanded "for further proceedings consistent with [our] opinion." Id. at 196-97. The district court then remanded the matter to the Secretary so that he could "reconsider his decision to acquire the Chico Parcel." J.A. 484A. (Because this matter has spanned the terms of two different Secretaries, we use different pronouns to refer to the Secretary depending on who was in office at the relevant time.) The district court specifically instructed the Secretary to make the 2006 "Beckham Report ... part of the administrative record on remand." Id. (formatting modified).

Neither our decision, nor that of the district court, instructed the Secretary that he could not reopen the record. And in the absence of any specific command to that effect, the Secretary was generally free to determine in his discretion whether to accept additional evidence. See Chamber of Commerce v. SEC , 443 F.3d 890, 900 (D.C. Cir. 2006). The County relies on Tennis Channel, Inc. v. FCC , in which we upheld an agency's refusal to reopen the administrative record on remand. 827 F.3d 137, 144-45 (D.C. Cir. 2016). But Tennis Channel fully supports recognizing an agency's broad discretion in deciding whether to accept new evidence. There, the agency decided against reopening the record; and here, the Secretary made the opposite choice, permitting both the County and the Tribe to submit new evidence. The County gives us no reason to conclude that the Secretary abused his discretion in that regard.

Next, the County contends that the Secretary should not have granted the Tribe a 15-day extension of time to submit its response (Tiley's report) to the County's submission. But the County does not contend that the Secretary somehow ran afoul of the Administrative Procedure Act by granting the extension. The County instead alleges that the Tribe misled the Secretary about the reasons for seeking the extension. The...