Stand Up for Cal. v. U.S. Dep't of the Interior

• Citation: 959 F.3d 1154
• Decision Date: 27 May 2020
• Docket Number: No. 18-16830,18-16830
• Parties: STAND UP FOR CALIFORNIA! ; Randall Brannon; Madera Ministerial Association; Susan Stjerne; First Assembly of God - Madera ; Dennis Sylvester, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF THE INTERIOR; David Bernhardt ; Bureau of Indian Affairs; Lawrence Roberts, Defendants-Appellees, North Fork Rancheria of Mono Indians, Intervenor-Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

959 F.3d 1154

STAND UP FOR CALIFORNIA! ; Randall Brannon; Madera Ministerial Association; Susan Stjerne; First Assembly of God - Madera ; Dennis Sylvester, Plaintiffs-Appellants,

v.U.S. DEPARTMENT OF THE INTERIOR; David Bernhardt ; Bureau of Indian Affairs; Lawrence Roberts, Defendants-Appellees,North Fork Rancheria of Mono Indians, Intervenor-Defendant-Appellee.

No. 18-16830

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2020 San Francisco, California

Filed May 27, 2020

Sean M. Sherlock (argued), Todd E. Lundell, and Jing (Jenny) Hua, Snell & Wilmer L.L.P., Costa Mesa, California, for Plaintiffs-Appellants.

Rachel E. Heron (argued), J. David Gunter II, Joann Kintz, Steven Miskinis, and Rachel Heron, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey Bossert Clark, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Andrew S. Caulum, Attorney, Office of the Solicitor, Washington, D.C.; for Defendants-Appellees U.S. Department of the Interior, David Bernhardt, Bureau of Indian Affairs, and Lawrence Roberts.

Danielle Spinelli (argued), Christopher E. Babbitt, John T. Byrnes, and Claire H. Chung, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Intervenor-Defendant-Appellee North Fork Rancheria of Mono Indians.

Before: R. Guy Cole, Jr.,^* Ronald M. Gould, and Mary H. Murguia, Circuit Judges.

GOULD, Circuit Judge:

Plaintiffs-Appellants challenge the Secretary of the Interior’s issuance, under the Indian Gaming Regulatory Act (IGRA), of Secretarial Procedures which authorize the North Fork Rancheria of Mono Indians to operate class III gaming activities on a parcel of land in Madera, California. Appellants contend that the Secretarial Procedures violate the Administrative Procedure Act (APA) because they conflict with specific prohibitions of the Johnson Act. Appellants also contend that the Secretary, in issuing the Secretarial Procedures, violated the National Environmental Policy Act (NEPA) and the Clean Air Act (CAA). The district court granted summary judgment against Appellants on all claims. We affirm in part, as to Appellants’ Johnson Act claim, and vacate and remand in part, as to the NEPA and CAA claims.

I

In 2005, the North Fork Rancheria of Mono Indians (North Fork)—a federally recognized Indian tribe—submitted a fee-to-trust application for the United States Department of the Interior (DOI) to take 305 acres of land in Madera, California (Madera Parcel), into trust to be developed into a hotel and casino. In reviewing the fee-to-trust application, the DOI completed an Environmental Impact Statement (EIS) under NEPA and made a conformity determination under the CAA, which were both upheld as valid in a legal action challenging the fee-to-trust determination. Stand Up for California! v. Dep’t of the Interior , 204 F. Supp. 3d 212, 323 (D.D.C. 2016), aff’d , 879 F.3d 1177, 1192 (D.C. Cir. 2018).¹

North Fork and the State of California then began negotiating toward a Tribal-State compact to govern gaming activities on the Madera Parcel, pursuant to 25 U.S.C. § 2710(d)(3)(A). See North Fork Rancheria of Mono Indians v. California , No. 1:15-cv-00419, Docket 46, at 2–3, 2016 WL 4208452 (E.D. Cal. Aug. 10, 2016). They concluded those negotiations in 2013, and the Secretary of the Interior published notice in October 2013 that the compact would take effect. Id. Before it could take effect, however, California voters vetoed the Tribal-State compact through a statewide referendum. Id. Following that referendum, the state refused to negotiate another Tribal-State compact, leading North Fork to file an action to compel the state to negotiate in good faith, pursuant to IGRA, 25 U.S.C. § 2710(d). Id. , Docket 1.

The district court granted North Fork’s motion for judgment on the pleadings and ordered California and North Fork to conclude a compact within sixty days, consistent with 25 U.S.C. § 2710(d)(7)(A), (d)(7)(B). Id. , Docket 25. When no agreement was reached, the district court appointed a mediator, who was charged with selecting from among each party’s last best offer, "the one which best comports with the terms of [IGRA,] ... any other applicable Federal law[,] and with the findings and order of the court." 25 U.S.C. § 2710(d)(7)(B)(iv). The mediator adopted North Fork’s proposed compact. When California did not consent to the proposed compact, the mediator submitted the proposed compact to the Secretary of the Interior to prescribe Secretarial Procedures consistent with the mediator-selected compact, authorizing class III gaming on the Madera Parcel, pursuant to 25 U.S.C. § 2710(d)(7)(B)(vii). The Secretary issued those Secretarial Procedures on July 29, 2016.

In November 2016, Stand Up for California!, a non-profit corporation and "community watchdog group that focuses on gambling issues affecting California citizens," along with several other plaintiffs (collectively, "Appellants" or "Stand Up"), brought this suit against the DOI in the Eastern District of California, challenging the Secretarial Procedures. Appellants claimed that the Secretarial Procedures (i) violated the APA because they were inconsistent with the Johnson Act’s prohibition of certain gaming devices on Indian lands, (ii) violated NEPA, (iii) violated the CAA, and (iv) violated the Freedom of Information Act (FOIA). North Fork intervened and became co-defendants with the DOI (collectively, "Appellees").

On cross-motions for summary judgment, the district court granted Appellees’ motions for summary judgment and denied Stand Up’s motion for summary judgment on all claims. Appellants timely appealed all but the FOIA claim. The district court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291.

II

We review a district court’s summary judgment determination de novo . City & Cty. of San Francisco v. United States , 130 F.3d 873, 877 (9th Cir. 1997). We also review a district court’s interpretation of statutory meaning de novo . Schleining v. Thomas , 642 F.3d 1242, 1246 (9th Cir. 2011). Under the APA, 5 U.S.C. § 706(2)(A), agency action will be upheld unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." San Francisco , 130 F.3d at 877.

III

We consider first whether the Secretarial Procedures are inconsistent with the Johnson Act and therefore violate the APA. We conclude, like the district court, that they do not.

A

Before beginning our analysis, we briefly explain the relevant statutory background. The Johnson Act, enacted in 1951, prohibits the possession or use of "any gambling device ... within Indian country," including slot machines. 15 U.S.C. § 1175(a). IGRA, on the other hand, enacted in 1988, provides "a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." United States v. 103 Electronic Gambling Devices , 223 F.3d 1091, 1094 (9th Cir. 2000) (quoting 25 U.S.C. § 2702(1) ). Under IGRA, there are three categories of gaming: class I, class II, and class III. Class III, at issue here, is a catchall for all gaming not included in class I or class II and includes slot machine gaming activities. 25 U.S.C. § 2703(6) – (8).

IGRA provides that class III gaming activities on Indian lands are permissible "only if" the activities are "located in a State that permits such gaming for any purpose by any person, organization, or entity, and ... [are] conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect." 25 U.S.C. § 2710(d)(1). States must enter into good-faith negotiations with any qualified Indian tribe that requests to establish a Tribal-State compact for the purpose of conducting gaming activities. Id. § 2710(d)(3)(A). If a district court finds that the state has not negotiated in good faith, it must order the state and the Indian tribe to conclude a Tribal-State compact within sixty days; absent agreement, the court appoints a mediator, who adopts from two proposed compacts—one submitted by the state, the other by the tribe—"the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court." Id. § 2710(d)(7)(B)(iii)–(iv). If the state consents to the proposed compact selected by the mediator, "the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (3)." Id. § 2710(d)(7)(B)(vi). But if the state does not consent, then the "Secretary [of the Interior] shall prescribe, in consultation with the Indian tribe, procedures—(I) which are consistent with the proposed compact selected by the mediator ..., the provisions of this chapter, and the relevant provisions of the laws of the State, and (II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction." Id. § 2710(d)(7)(B)(vii).

IGRA expressly exempts from the Johnson Act’s prohibitions "gaming conducted under a Tribal-State compact that ... is entered into ... by a State in which gambling devices are legal, and ... [that] is in effect." Id. § 2710(d)(6) (explaining that the "provisions of section 1175 of title 15 [the Johnson Act] shall not apply" under these circumstances). The statute contains no express exemption for gaming conducted pursuant to Secretarial Procedures, and it does not indicate, as with a mediator-selected compact to which the state consents, that the Procedures "shall be treated as a Tribal-State compact." Id. § 2710(d)(7)(B)(vi).

B

"It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Sturgeon v. Frost , ––– U.S. ––––, 136 S. Ct. 1061, 1070, 194 L.Ed.2d 108 (2016) (quoting Roberts v. Sea-Land...