Navajo Nation v. U.S. Dep't of the Interior, 16-5117

• Citation: 852 F.3d 1124
• Decision Date: 04 April 2017
• Docket Number: No. 16-5117,16-5117
• Parties: NAVAJO NATION, a federally recognized Indian tribe, Navajo Nation Department of Justice, Appellant v. UNITED STATES DEPARTMENT OF the INTERIOR and Ryan Zinke, in his official capacity as Secretary, United States Department of the Interior, Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

852 F.3d 1124

NAVAJO NATION, a federally recognized Indian tribe, Navajo Nation Department of Justice, Appellant
v.
UNITED STATES DEPARTMENT OF the INTERIOR and Ryan Zinke, in his official capacity as Secretary, United States Department of the Interior, Appellees

No. 16-5117

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 2016
Decided April 4, 2017

Steven D. Gordon argued the cause for appellant. With him on the briefs were Philip Baker-Shenk and Jessica Farmer, Washington, DC.

John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellees.

852 F.3d 1126

With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Mark R. Freeman, Attorney.

Before: Kavanaugh and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge Kavanaugh.

Sentelle, Senior Circuit Judge:

The Navajo Nation delivered a proposed funding agreement to the Bureau of Indian Affairs, an agency within the United States Department of the Interior, during a partial government shutdown. By law, the BIA had 90 days after receipt to act on the proposal or it would be deemed approved. The BIA did not consider the proposal "received" until normal government operations later resumed, and issued a partial declination 90 days after that date. The Nation filed an action to enforce the proposal, contending that the BIA's declination was untimely. The district court granted summary judgment to the DOI, holding that because the Nation had remained silent when the BIA indicated its position on the deadline, the Nation was equitably estopped from asserting an earlier one. The Nation brought the present appeal. We reverse the judgment.

I. BACKGROUND

Congress enacted the Indian Self-Determination and Education Assistance Act ("ISDEAA") to help Indian tribes assume responsibility for programs or services that a federal agency would otherwise provide to the tribes' members. 25 U.S.C. §§ 5301 et seq. The transfer of authority from the Department of the Interior ("DOI") to a tribe is memorialized in a "self-determination contract." The ISDEAA includes a model contract specifying a multi-year term, with the funding amount for each year to be determined during subsequent negotiations and incorporated through annual funding agreements. Id. § 5329(c). When a tribe submits a proposed annual funding agreement to DOI, "the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification" to the tribe that the proposal is declined for one of five reasons provided by the statute. Id. § 5321(a)(2). "[T]he Secretary may extend or otherwise alter the 90-day period ... if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe" to do so. Id. "A proposal that is not declined within 90 days (or within any agreed extension ...) is deemed approved...." 25 C.F.R. § 900.18.

In 2012, DOI Secretary Sally Jewell entered into a self-determination contract under the ISDEAA whereby the federal government would fund the Navajo Nation's ("the Nation") judicial operations from January 1, 2012 through December 31, 2016. The contract requires the parties to negotiate a separate funding agreement for each calendar year that it covers.

On October 4, 2013, the Nation hand-delivered a proposal to Raymond Slim, an ISDEAA Specialist in the Self-Determination Office in the Bureau of Indian Affairs ("BIA") Navajo Regional Office. Slim marked it for intra-office mail delivery to Jeanette Quintero, a BIA official that the BIA claims is responsible for making award and declination decisions for the Nation's contracts under the ISDEAA. However, Quintero was furloughed at that time pursuant to a partial government shutdown caused by a lapse in congressional appropriations. Quintero returned to work on October 17, 2013, when normal governmental operations resumed, and apparently received the proposal on that date.

852 F.3d 1127

On October 21, 2013—two business days after normal government operations resumed—the BIA sent a letter to the Nation acknowledging its receipt of the proposal. The letter stated that, due to the government shutdown, the BIA considered the proposal to have been received on October 17, 2013. The letter asserted that the BIA had until "90 days after October 17, 2013 to approve, decline, or award the proposal," and that this "90-day period will end on January 15, 2014 ." (emphasis in original). The letter directed the Nation to contact Quintero or her colleague Frances Price if it had any questions. The Nation did not respond to this letter.

On November 7, 2013, the BIA sent another letter to the Nation, this time identifying substantial changes between the proposal and the CY 2013 annual funding agreement, including the fact that the Nation's requested budget amount had increased from about $1.3 million to over $17 million. The letter requested that the Nation respond to the BIA's concerns by November 29, 2013, so that the BIA could complete its review of the proposal, and stated that the BIA would "hold the approval" of the proposal until the Nation submitted the requested documents. The letter directed the Nation to contact Quintero, Price, or their colleague Daniel Largo, Jr., if it had any questions. The Nation did not respond to this letter.

If the proposal was properly "received" on the date it was hand-delivered (October 4), rather than on the date government operations resumed (October 17), then the 90-day window for the Secretary to act on it closed on January 2, 2014, rather than January 15 as asserted by the BIA. But the BIA neither approved nor denied the proposal by January 2, 2014, nor did it ever receive the Tribe's "express written consent" to an extension of time within which to do so.

On January 9, 2014, the BIA sent a letter to the Nation requesting a 45-day extension to the 90-day window. The BIA stated that it was requesting the extension so that the Nation could have additional time to respond to the issues raised in the BIA's November 7 letter. Again, the letter directed the Nation to contact Quintero, Price, or Largo with any questions. The Nation did not respond to this letter.

On January 15, 2014—according to the BIA, the last day of the 90-day window—the BIA sent the Nation a letter partially declining the proposal. The BIA authorized approximately $1.3 million in funding rather than the approximately $17 million requested.

On January 27, 2014, the Nation sent the BIA a letter asserting that the 90-day review window had actually closed on January 2, 2014—i.e. , 90 days after the Nation delivered the proposal to the Regional Office. The letter stated that the BIA's partial declination was therefore untimely and that the proposal was automatically deemed approved as a matter of law.

On February 7, 2014, the BIA sent the Nation a letter explaining that the partial declination was timely because delivery of the proposal to Slim did not constitute receipt by the Secretary as Slim was only authorized to perform work for contracts relating to road construction during the partial shutdown. The BIA contended that during the partial shutdown no BIA employee was authorized to receive or work on the Nation's proposal, so...