United States Court of Appeals, District of Columbia Circuit
October 13, 2017
from the United States District Court for the District of
Columbia (No. 1:12-cv-02039)
M. Sherlock argued the cause for appellants Stand Up for
California!, et al. With him on the briefs were Todd E.
Lundell and Benjamin Sharp. Jennifer A. MacLean entered an
Michael A. Robinson argued the cause for appellant Picayune
Rancheria of the Chukchansi Indians. With him on the briefs
was James Qaqundah. Merrill C. Godfrey entered an appearance.
C. Toth, Attorney, 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, entered an
P. Waxman 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, and John M. Schultz.
Before: Garland, Chief Judge, Tatel, Circuit Judge, and
Edwards, Senior Circuit Judge.
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.
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  that a gaming
establishment on newly acquired lands would be in the best
interest of the Indian tribe and its members, and  would
not be detrimental to the surrounding community, " and
" 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.
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
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).
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.
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.
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.
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 (2009) ...