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

• Decision Date: 12 January 2018
• Docket Number: C/w 16-5328,No. 16-5327,16-5327
• Parties: STAND UP FOR CALIFORNIA!, et al., Appellants Picayune Rancheria of the Chukchansi Indians, a Federally Recognized Indian Tribe, Appellant v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., Appellees North Fork Rancheria of Mono Indians, Intervenor–Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

879 F.3d 1177

STAND UP FOR CALIFORNIA!, et al., AppellantsPicayune Rancheria of the Chukchansi Indians, a Federally Recognized Indian Tribe, Appellant

v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., AppelleesNorth Fork Rancheria of Mono Indians, Intervenor–Appellee

No. 16-5327

C/w 16-5328

United States Court of Appeals, District of Columbia Circuit.

Argued October 13, 2017

Decided January 12, 2018

Rehearing En Banc Denied April 10, 2018

Sean M. Sherlock, Costa Mesa, CA, argued the cause for appellants Stand Up for California!, et al. With him on the briefs were Todd E. Lundell, Costa Mesa, CA, and Benjamin Sharp, Washington, DC. Jennifer A. MacLean, Washington, DC, entered an appearance.

Michael A. Robinson, Sacramento, CA, argued the cause for appellant Picayune Rancheria of the Chukchansi Indians. With him on the briefs was James Qaqundah,Sacramento, CA. Merrill C. Godfrey, Washington, DC, entered an appearance.

Brian C. Toth, Attorney, Washington, DC, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, and Eileen T. McDonough, Attorney. Mary G. Sprague, Attorney, Washington, DC, entered an appearance.

Seth P. Waxman, Washington, DC, argued the cause for intervenor-appellee North Fork Rancheria of Mono Indians. With him on the brief were Danielle Spinelli, Christopher E. Babbitt, Jonathan A. Bressler, John T. Byrnes, Washington, DC, and John M. Schultz, Portland, OR.

Before: Garland, Chief Judge, Tatel, Circuit Judge, and Edwards, Senior Circuit Judge.

Tatel, Circuit Judge:

Following a nearly seven-year administrative process, the Interior Department took a tract of land into trust for the North Fork Rancheria of Mono Indians, a federally recognized Indian tribe based in California, and authorized it to operate a casino there. Several entities, including nearby community groups and an Indian tribe with a competing casino, challenged the Department's decision in United States district court, raising a host of statutory, regulatory, and procedural challenges. In a thorough and persuasive opinion, the district court granted summary judgment to the Department on most claims and dismissed the remainder. For the reasons set forth in this opinion, we affirm.

I.

Facing high unemployment, inadequate public services, and an uncertain revenue stream, the North Fork Rancheria of Mono Indians (the "North Fork") proposed in March 2005 to stimulate economic development by building a large-scale casino complex. Because the North Fork's existing land was ill-suited to the purpose, it asked the U.S. Department of the Interior (the "Department") to exercise its authority under the Indian Reorganization Act (IRA), 25 U.S.C. § 5101 et seq. , to acquire land "for Indians," id. § 5108, by taking a largely undeveloped, 305–acre tract of land in Madera County into trust for the tribe. But because a different statute—the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq. —generally prohibits gaming on newly acquired Indian trust land, see id. § 2719(a), the tribe also asked the Department to determine that it qualified for a statutory exception, available where the Department "determines [1] that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and [2] would not be detrimental to the surrounding community," and "[3] the Governor of the State in which the gaming activity is to be conducted concurs in the [Department's] determination," id. § 2719(b)(1)(A). The Department made the requested determination in September 2011, and California's governor concurred soon after. See U.S. Department of the Interior, Secretarial Determination Pursuant to the Indian Gaming Regulatory Act for the 305.49–Acre Madera Site in Madera County, California, for the North Fork Rancheria of Mono Indians 89 (2011) ("IGRA Decision"), Joint Appendix (J.A.) 3961; Letter from Edmund G. Brown, Jr., Governor of California, to Kenneth L. Salazar, U.S. Secretary of the Interior (Aug. 30, 2012), J.A. 4014–15.

Before it could take the land into trust, however, the Department had to ensure that the project was consistent with the Clean Air Act, 42 U.S.C. § 7401 et seq. That Act provides that "[n]o department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform" to a state's plan for achieving federally mandated air quality standards. Id. § 7506(c). Prior to making a final "conformity determination," the agency must provide 30–day advance notice to the public, 40 C.F.R. § 93.156(b), and to tribal and governmental entities specified in Environmental Protection Agency (EPA) regulations, see id. § 93.155(a). EPA regulations also require that the conformity determination be based on "the latest and most accurate emission estimation techniques available."Id. § 93.159(b). Having given advance notice to the public and to most—but not all—entities expressly entitled to receive it, the Department in June 2011 determined that, under California's latest available emissions model, the casino would conform to the state's plan for achieving and maintaining the Clean Air Act's federal air quality standards.

Based, among other things, on its findings that the proposed casino complied with IGRA and the Clean Air Act, the Department in November 2012 agreed to take the tract of land into trust for the North Fork. See U.S. Department of the Interior, Trust Acquisition of the 305.49–Acre Madera Site in Madera County, California, for the North Fork Rancheria of Mono Indians 1 (2012) ("Trust Decision"), J.A. 4041. Stand Up for California!—a nonprofit organization focusing on the community effects of gambling—along with five other casino opponents (collectively, "Stand Up"), all appellants here, sued the Department and the Bureau of Indian Affairs. Another appellant, the Picayune Rancheria of the Chukchansi Indians (the "Picayune"), which operates a casino expected to compete with the North Fork's, filed a similar suit. The district court consolidated the cases and the North Fork intervened as a defendant. See Stand Up for California! v. U.S. Department of the Interior , 204 F.Supp.3d 212, 234 (D.D.C. 2016).

Stand Up and the Picayune argued that the Department's trust decision violated the IRA, IGRA, the Clean Air Act, and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Most directly, they argued that the North Fork is not an Indian tribe for which the Department has IRA authority to acquire land. They also argued that the acquisition rested on faulty predicates, namely, the Department's determinations that the proposed casino complied with the Clean Air Act and qualified for the IGRA exception, as well as the California governor's concurrence in the latter determination.

After the district court remanded the Clean Air Act conformity determination without vacatur so that the Department could correct its initial failure to notify all entities entitled to notice under EPA regulations, see Stand Up for California! , 204 F.Supp.3d at 236, the parties filed cross-motions for summary judgment. The district court, Chief Judge Howell, denied summary judgment to Stand Up and the Picayune, dismissed Stand Up's claims for failure to join an indispensable party—California—insofar as those claims challenged the California governor's concurrence in the Department's IGRA determination, and granted the federal defendants and the North Fork summary judgment on all other relevant claims. Id. at 323.

Stand Up and the Picayune now appeal. We review the district court's summary judgment rulings de novo , evaluating the administrative record directly and invalidating the Department's actions only if, based on that record, they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." District Hospital Partners, L.P. v. Burwell , 786 F.3d 46, 54 (D.C. Cir. 2015) (quoting 5 U.S.C. § 706(2) ). In doing so, we defer to the Department's reasonable interpretation of ambiguities in statutes it is tasked with implementing and give "substantial deference" to the Department's "interpretation of its own regulations unless it is contrary to the regulation[s'] plain language." Confederated Tribes of Grand Ronde Community of Oregon v. Jewell , 830 F.3d 552, 558–59 (D.C. Cir. 2016). We accept the Department's factual findings so long as they are supported by substantial evidence in the record. See Center for Auto Safety v. Federal Highway Administration , 956 F.2d 309, 313 (D.C. Cir. 1992).

II.

We begin with Stand Up's threshold argument that the Department lacked statutory authority to take land into trust for the North Fork. The IRA provision pursuant to which the Department acted, 25 U.S.C. § 5108, authorizes it to acquire land "for Indians," id. , defined as "all persons of Indian descent who are members of any recognized Indian tribe" that was "under Federal jurisdiction" at the time of the IRA's 1934 enactment, id. § 5129; see Carcieri v. Salazar , 555 U.S. 379, 395, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009) (interpreting IRA's "Indian" definition to include only tribes that were under federal jurisdiction in 1934).

Conceding that the North Fork is now a "recognized Indian tribe," Stand Up Br. 6, Stand Up argues that the Department lacked substantial evidence to find, as the IRA requires, that the North Fork was a tribe "under Federal jurisdiction" in 1934. The Department rested that finding primarily on its earlier decision, roughly contemporaneous with the IRA's enactment, to hold a special election at the North Fork's reservation, the North Fork Rancheria, pursuant to an IRA provision authorizing the Department to give reservations the opportunity to vote within a year of the IRA's passage on whether to accept the statute's coverage. See 25 U.S.C. § 5125 (authorizing the Department to call...