*1 Nаtion, to evaluate [pursued] HFS’ recommenda- Tohono O’odham Intervenor- tions.” Defendant-Appellee. difficulty
On this record we have little agreeing Community, district River Indian court Ed- Gila a federal “care, skill, ison did not exercise the ly recognized Tribe; City Indian prudence, diligence the cir- Glendale; Socaciu; Michael Delvin cumstances” ERISA demands Terry; Rios; John Celestino Brandon selection of these retail mutual funds. Rios; Rios; Rios; Cameron Damon 1104(a)(1)(B). ap- U.S.C. Its cross Gary Hirsch, Plaintiffs, peal thus fails. McComish, John Legislature, Arizona VIII Majority Leader; Gray, Chuck Ari reasons, foregoing For the judgment Legislature, Majority zona Senature of the district court is AFFIRMED. The Leader; Adams, Legisla Kirk Arizona parties shall bear their own ap- costs on ture, Speaker House, of the Petition peal. ers-Intervenors, Arizona,
State of Intervenor- Plaintiff-Appellant, COMMUNITY,
GILA RIVER INDIAN federally recognized Tribe; Indian Terry; Rios; Delvin John Celestino America; United States of United States Rios; Rios; Brandon Damon Camer Department Interior; of the Kenneth Rios, Plaintiffs, Salazar, capacity Lee in his official as McComish, Legislature, John Arizona Secretary United States of the Interi Majority Leader; Gray, Chuck Ari or; Larry Hawk, Echo in his official Legislature, Majority zona Senate capacity Secretary Assistant Leader; Arizona; Kirk Indian Affairs of the United States Adams, Legislature, Speaker Arizona Department Interior, of the Defen House, Intervenor-Plaintiffs, of the dants-Appellees, City Glendale; Socaciu; Michael Nation, Tohono O’odham Intervenor- Gary Hirsch, Plaintiffs- Defendant-Appellee. Appellants, Community, Gila River Indian federally recognized America; UNITED STATES of United Tribe, Department Plaintiff-Appellant, Interior; States Salazar, Kenneth Lee in his official capacity as United States Interior; Larry Hawk, Echo in his City Glendale; Socaciu; Michael Del capacity official as the Assistant Sec- Terry; Rios; vin John Celestino Bran retary for Indian Affairs of the United Rios; Rios; don Damon Cameron Department Interior, States De- Rios, Gary Hirsch, Plaintiffs,
fendants-Appellees, *2 Community, federal Legislature, McComish, Gila River Arizona John Gray, Tribe; City Leader; ly Ari of recognized Indian Majority Chuck Majority Socaciu; Legislature, Glendale; Senature Michael Delvin zona Arizona, Kirk Leader; Rios; Terry; State Celestino Brandon John Legislature, Speaker Adams, Arizona Rios; Rios; Rios; Damon Cameron Intervenor-Plaintiffs, House, of the Hirsch, Plaintiffs, Gary v. Intervenor-Plaintiff, Arizona, State America; United States United States Interior; Kenneth Department of The Salazar, capacity official as in his Lee McComish, Legislature, Arizona John Secretary the Interi United States Leader; Gray, Majority Ari Chuck Hawk, or; Larry in his official Echo Legislature, Majority zona Senature Secretary for capacity the Assistant as Leader; Adams, Legisla Kirk Arizona of the United Indian Affairs States House; ture, Andy Speaker of the To Interior, Defen Department of the bin, Majority Whip, Interve House dants-Appellees, nor-Plaintiff-Appellants, Nation, Intervenor- Tohono O’odham Defendant-Appellee. America; United States United States Interior; Department of the Kenneth Community, a federal Gila River Indian Salazar, capacity ly Tribe; City Lee his official as recognized Indian Gary Secretary Glendale; Socaciu; Michael of the Interi United States Plaintiffs, Hirsch, or; Larry Hawk, Echo in his official Secretary capacity as the for Assistant McComish, Legislature, Arizona John Indian Affairs of the United States Majority Leader; Gray, Ari Chuck Department Interior, of the Defen Legislature, Majority zona Senature dants-Appellees, Leader; Arizona, Kirk Adams, Legislature, Speaker Arizona Nation, Intervenor- Tohono O’odham House, Intervenor-Plaintiffs, of the Defendant-Appellee. 11-15631, 11-15633, 11-15639, Nos. Terry; Rios; Delvin John Celestino 11-15642. Rios; Rios; Damon Brandon Camer Appeals, United States Court of Rios, Plaintiffs-Appellants, Ninth Circuit. Argued April and Submitted 2012. America;
United States United States May Filed Department Interior; Kenneth Salazar, capacity Lee in his official as July Amended Secretary United States of the Interi or; Larry Hawk, Echo in his official
capacity the Assistant Indian Affairs of the United States Interior, Department Defen dants-Appelleеs, Nation, Tohono O’odham Intervenor- Defendant-Appellee.
Patricia (argued), A. Millett Akin Gump Feld, Strauss Hauer & Washington, D.C. Plaintiff-Appellant Gila River Indian (ar- Community; Catherine E. Stetson gued), Lovells, Hogan Washington, D.C. Glendale; for Plaintiff-Appellant David R. (argued), Dep. Atty. Cole Gen., Phoenix, AZ, for Plaintiff-Interve- nor-Appellant State Arizona. Just., Aaron (argued), Dep’t P. Avila D.C., Washington, for Defendants-Appel- America, al.; lees the United States of et. Seth P. (argued), Waxman Wilmer Cutler Dorr, Pickering Hale and Washington, D.C., for Defendant-Intervenor-Appellee the Tohono O’odham Nation. McKEOWN, appeal here. This relates outcome MARGARET Before: M. SMITH, JACQUELINE land as trust land and the status N. RANDY NGUYEN,* Judges. of Indian particulars not involve the H. Circuit does subject separate gaming, which are
ORDER
legislation.
proceedings
pending
granted summary judgment
September
district court
opinion
filed
(9th
concluding
after
appearing
government
at
Nation responds cap only that the applies Assuming, without deciding, that 6(d), to land held in trust via and not to waived, the argument was not we hold that remaining land in fee status. the statute read as a whole is unambiguous 6(c) and that cap only creates a While the of the Interior did Nation, squarely consider held trust for the acreage cap be- not on total cause the issue was never framed land acquisition by as a the tribe under the Act. trust, taking barrier to Parcel 2 in reading goal Our is to understand the statute “as Secretary’s decision in context is tell- *7 symmetrical a regulatory and coherent 6(d) ing. determining § whether the “fit, possible, scheme” and to if parts all met, requirements trustee were the Secre- into a harmonious FDA whole.” v. Brown tary read the creating cap statute as a on & Williamson Corp., Tobacco land that could be held in trust under the L.Ed.2d Act, Gila Bend not as a cap on the total (2000) (citations omitted). 6(a) Section au- acreage that acquire. the Nation could thorizes the Nation to use funds received Secretary The explained the of basis this under the Gila Bend Act “for land and reading, first, noting that and far “[t]he so rights acquisition, water economic and only, acquired land in trust for the Nation” 3,200.53 community development, and relocation acquired was acres in September goes The decision on to costs.” This authorization is broader than state that there application was another acquisition trust for land and does not address trust Community 8. The Gila appellants River Indian and (collectively the various Arizona Terry appellants appeal and appellants1’) Rios appeal as to “Arizona as to all of the acreage issue. The of Glendale and issues. bearing and deposits reser- “interest securities the Nation’s lost replace to acreage 6(a). § expended.” until This requirement vation land. did intend underscores of general provisions Apart from to a dollar spend for tribe fixed of the Act concern 6(a), provisions § three amount, spend specific to a amount on or of reser- replacement and the divestment land, acquire any particu- or land at to origi- 4 concerns the land. Section vation Rather, time. Nation to have lar reservation, 9,880-acre specifies nal and of broad discretion the use Gila Bend which the Nation the conditions under funds, Act on funds. yield and those title, “right, its and interest would forfeit ability buy regard The to without to land eight nine thousand hundred and cap desig- acreage then eighty land.” Sub- [reservation] acres nate the for trust is parcels conversion to 6(c) 6(d) the re- provide for sections “great flexibility” Congress well within the this placement precise number acres 6(d) H.R.Rep. for the Nation. See authorized explains Section of reservation land. (еnvisioning No. at 10 restoring the mechanism for reservation land, trust, great flexibility requires placing land in Nation to “have in deter- which mining and limits the location of reservation land. provided the use funds under 6(d) Act.”). provides: § specifically, More Secretary, request course, Of does not need Nation Tribe, in trust for the benefit shall hold acquire authorization to and hold any Tribe land which the Tribe simple. land in Nation fee has (c) acquires pursuant subsection right buy just and sell land other like requirements of which meets the persons entities. Hand- or See Cohen’s Any land which subsection. the Secre- (de- § book Federal Indian Law 15.04 tary be holds trust shall deemed be scribing acqui- various forms of tribal land Indian Reservation for all Federal sition, including the purchase simple of fee purposes. title). reading Glendale’s would mean 6(c), turn, Section limits the size of the Gila purported curtail newly land that of acquired trust the Nation’s independent right buy and sell 9,880 Thus, previous reservation: acres. land, an outcome we do not endorse and 6(c) § imposes upon limit the size of land one that is inconsistent with decades of placed in trust purposes, for reservation Indian law. 6(d), upon § under than total rather 6(b) Further, § Secretary relieves 6(a). 6(c) acquisition § under Subsection responsibility audit or oversight 6(d) internally are cross-referenced 6(a): § expenditure of under “The funds together. and must read shall not be [of Interior] inapplicability Aside from to non- review, responsible approval, for the 6(c) land, treating
reservation limit expenditure” audit of use 6(a) acquired proble- on land *8 6(b). 6(a) § § replacement land If funds. matic Congress for other reasons. crafted 6(c), by Secretary the § were cabined the to allow the Nation Gila Act necessarily monitoring a would undertake autonomy substantial in the use of funds expenditure money function as to for and acquisition the of new reservation lands, responsibility specifically trust a dis- expect land. Congress Because did not Act. claimed to spend Nation the Gila Bend Act matter, once, practical funds a Glen- immеdiately Finally, or all at as even provided permit that the funds be invested in dale’s the Sec- would 2 in This retary accept Parcel trust. eluded Parcel therefore could be taken Similarly, boils down view that into argument government trust. and 9,880 acquired must into go acres argue jurisdictional first the Nation for a mean- specifies in Nothing trust. ing: Any subject city’s land not corpo- into trust in a chrono- go the lands must jurisdiction rate is not city.9 “within” the order to the time of logical pegged acquisi- The appellants phrase Arizona contend the (first out) in, There is tion. no FIFO first a geographical meaning: should have Any in principle incorporated the Act. The Act entirely aby city’s corpo- surrounded acre-for-acre, replace, the Nation to allows city. rate limits is “within” the Who knew 9,880 acres of land it relin- reservation a straightforward such sounding 4(a). quished to federal control under phrase, limits,” corporate “within the could date, Secretary To of the Interior has generate competing such views. just parcel one into trust taken below, explained As we conclude the Nation, 3,200-acre an approximately par- ambiguous. Secretary’s statute is The de- Lucy Acquisi- cel known as San Farms. cision grapple reflects failure to with the in trust of in tion acres Parcel ambiguity prompts tous remand for be the Nation’s second trust acquisi- would Secretary bring expertise his and, tion after the Nation acquisition, interpret bear to provision anew. See 9,880-acre would remain well below the Holder, Negusie v. may That cap land. the Nation (2009) (“[I]f L.Ed.2d 20 purchased other land is irrelevant to have agency erroneously contends that Con- 9,880 that only the clear limitation acres gress’ clearly expressed intent has been may held trust. ground, and has rested on that we remand require ques- to consider the Corporate II. The Limits Restriction tion in light ambiguity afresh we 6(D) Section see.”) (internal omitted). quotation marks 6(d) Section of the Gila Bend Act Department The of the Interior’s treat- Secretary prohibits the of the Interior provision telling. ment of the The De- taking from land into trust “if it is outside partment’s prepared Office of the Maricopa, Pinal, Pima, Solicitor the counties of Arizona, a memorandum for the on the corporate within the limits of added). any city (emphasis “corporate or town.” It is meaning of limits” and conclud- undisputed Maricopa that Parcel ambiguous. ed the term Field county; the issue is whether Solicitor, Parcel considering submissions county fully on a located island surrounded City, explained: both Nation and the land, city is within the of Glen “A close review of the statutes ease dale’s limits. law of the State of reveals Arizona question dispositive has no clear or Secretary, invoking plain meaning, answer, ambiguity and that there is about interpreted corpo- phrase “within the it, point even to of one Justices limits” “showpng] rate as clear intent to admitting of the Arizona given property make a Court piece -eligible if Field unincorporated Although under the Act it is on the much.” Solicitor line,” city’s boundary jurisdic- of a con- side was inclined to accord the term a suggestion govern- passing geographical 9. The dissent’s reference to restrictions But, so, differing prior litigation doing took a view ment on trust land. brief did 6(d) totally by the is not borne out record. not consider distinction nor *9 litigation, government litigation. the made was section at in the unrelated issue Reservation”). Yu, In a Speros Navajo aries of Indian meaning in reliance on tional decision, (Ariz.Ct.App. P.3d 1094 of the trust the Secre- 207 Ariz. footnote position added, alternative, 2004), emphasized that such tary he in the that “[e]ven caution, of degree some was “reached with if intent less clear ... we Congress’s was concepts of ‘exterior boundaries’ since the support the term not to a conclu- interpret expressly are neither ‘corporate and limits’ 2 is ineligible sion that Parcel under any consistency real nor used with defined Act, with or without consideration of the Ultimately, Field Arizona law.” canon.” [Indian] that determined resolve Solicitor Secretary hold that the was mistak- We inconsistency “obliged invoke the he concluding plain en in the term has a of construction re regarding canons rule meaning.10 Giving key “within phrase Indian and Indian garding Federal law natural, corporate plain, limits” its and ambig which counsels jurisprudence,” meaning does not resolve the am- common are to be construed in favor uous statutes Romo-Romo, biguity. United States Cnty. of Yakima v. Con Indians. See of (9th (“[W]e Cir.2001) F.3d Tribes and Bands Yakima federated natu- usually give plain, should words their Nation, 251, 269, 112 ral, ordinary commonly understood Apply L.Ed.2d Here, meanings.”). reading either canon, ing that the Field Solicitor inter plausible. term as used in the statute is jurisdictional preted the to have a term Further, agree we with the Field Solici- meaning. tor’s conclusion Arizona law does not decision, Secretary In trust ref- conclusively solve the dilemma. parted ways erenced but Field history of Arizona’s treatment of report Solicitor’s and concluded that county uni- islands underscores the lack of “corporate ambigu- term limits” was not formity interpretation uncertainty Secretary ous. The determined the term that carries over to the Gila Act’s meaning plain indicating had the corporate of the “within limits” use jurisdictional status of fee land: “The use ordinances, designation. past City limits’ ‘corporate shows a clear intent to county has characterized is- Glendale given piece property eligible make lying lands as outside its limits under the Act if it is [Gila Bend] requiring annexation to be included unincorporated city’s boundary side City’s within the For example, limits. added). (emphasis line.” City incorporated when the of Glendale that, had Congress reasoned intended to strip of land that 2 and surrounds Parcel county possible exclude islands from territory, unincorporated other the annex- acquisition, using could have done so provided ation ordinance present “the such as language boundary,” “exterior corporate limits extended and in- [are] any city” “within one mile of lim- “city strip creased to include” of land See, e.g., § its.” (Secretary 16 U.S.C. precisely described with metes of Agriculture may accept “title to AZ, Glendale, City of Ordinance bounds. lands within the exterior boundaries of (certain Series, 26,1977). forests”); (July Similarly, 986 New national U.S.C. may acquire numerous of Glendale annexation or- funds not be “used to addi- tional land outside of the exterior dinances land “located within an bound- address Curiously, Secretary. Even the dissent takes the view that at odds with the the division 6(d) plain meaning panel the text of has a but within our of clar- underscores lack surprisingly ity then comes to an statute.
H49 existing county interpreting However, island” and confirm that as the statute. be- annexation, newly a result of the an- cause the agency misapprehended the clar- county nexed island will “be included with- ity statute, such deference is not in corporate City in the limits of the of Glen- order. agency’s “[D]eference to an inter- See, Glendale, AZ, e.g., City dale.” pretation of a statute appropriate is not Series, 23, New (Sept. Ordinance 2693 agency wrongly when the ‘believes that ” 2009); Glendale, AZ, City of Ordinance interpretation compelled by Congress.’ is (Mar. Series, 18, 2009); City 2674 New DEA, PDK Labs. Inc. v. 362 F.3d Glendale, AZ, Series, (D.C.Cir.2004) Ordinance New (quoting Thomp- Arizona v. (Mar. 2009). son, Some Arizona statutes (D.C.Cir.2002)). 281 F.3d county falling also refer to islands as out- principle that Chevron deference See, side corporate e.g., limits. Ariz.Rev. apply does not an agency where mistaken- Stat. Ann. (authorizing city 9-500.23 to ly determines that interpretation its “provide fire and emergency medical ser- by plain mandated meaning, or some other vices outside its limits to a coun- rule, binding is best illustrated by the Su- island”). However, ty Arizona statutes do preme Court’s decision in Negusie. explicitly not define the term and Arizona There, the Court uphold declined to courts “corporate have used limits” and interpretation BIA’s ambiguous of an pro- “exterior interchangeably. boundaries” vision of the Immigration and Nationality See, e.g., Flagstaff Vending Co. v. of Act where BIA mistakenly thought Flagstaff, 118 Ariz. P.2d by itself precedent bound Court (holding a state-owned univer- construing language similar in a different sity campus city was “within” limits for statute. Negusie, 555 ordinances). purposes of local tax Although S.Ct. 1159. explained Court Having resolved that the statute is am- interpretation that the chosen might ulti- biguous, the question is how to treat the mately reasonable, apply declined to Secretary’s decision under Chevron. We Chevron deference remanded because Secretary’s conclude that interpreta- agency interpretation “deemed its tion warrants no deference because it rests be mandated [precedent], and that er- on a mistaken language conclusion that the prevented ror it from a consideration full plain meaning. has statutory question presented.” here Id. at (emphasis S.Ct. 1159 add- clear, Were the statute simply we would ed); Holder, Delgado see also one,” “stop the music at step as we did (9th Cir.2011) (en F.3d 6(c), 1103 & n. swpra, “give order to effect banc) (upholding interpretation BIA [Congress’s] of am- unambiguously expressed Tech., FCC, biguous despite statute Northpoint intent.” Ltd. v. its reliance on (D.C.Cir.2005) (internal plain text 412 F.3d because the BIA’s decision “did omitted). quotation Here, rely plain marks we text alone” but also “em- must to step Congress’s phasized move two because in- its sup- tent is not At stage, normally ported by history clear. and background” of statute) (internal we would defer as a quotation matter of course to marks omitted). agency’s expertise and discretion in government bring expertise 11. The Nation and the view Ne- to bear because it be- gusie inapposite because the here lieves itself constrained for whatever reason plain meaning fully considering believed himself policy practical bound considerations, by precedent. rather than This is a distinc- the rationale for Chevron— tion agency expertise—is without a difference. If the fails absent. *11 1150 agency’s “adequately the decision stated case has a twist that bears present
The
in Negusie,
Unlike
ul-
practical
policy
farther consideration.
the
considerations
entirely
did not rest
on
agency here
the
motivating
interpretation”)
its
timately
intent,
сongressional
clear
purportedly
added).
(emphasis
that it would reach the same
added
but
focuses
Secretary’s
The
discussion
on
if
was
Congress’s intent
“[e]ven
conclusion
statutory text is clear and does
why the
caveat in a
clear.” This one-sentence
less
counseling
factors
not articulate
other
footnote is not entitled to Chevron defer-
posi-
adopting
favor of
alternative
ence,
Secretary
pro-
did not
because
gov-
The
dropped
tion
into the footnote.
In
any explanation for this decision.
vide
argues that the Field Solicitor’s
ernment
short, “that
passing footnote reflects
Secretary
to show that the
report suffices
[Department of
has not
Interior]
ambiguity
grappled with the
statute.
in-
yet
its Chevron discretion to
exercised
Secretary’s
merely
decision
refer-
But the
thus
terpret
question”
the statute
enced the Field
determination
Solicitor’s
...
to the
proper
“the
course
is to remand
(some)
supports
law
the con-
that
Arizona
agency
investigation
for additional
or ex-
2
that Parcel
is not within the
clusion
at
planation.” Negusie, 555 U.S.
129
(internal
support
proposi-
corporate limits
question
marks omit-
S.Ct.
ted).
statutory
plain.
tion that the
text
The
Secretary’s
way
goes
decision
out of its
to
at
The essence of Chevron deference
ambiguity
disclaim
the Field Solic-
give meaning
“delega
two
to
to the
step
asserting
itor highlighted,
repeatedly that
authority
agency
fill the
tion[ ]
meaning
the lan-
“plain”
statutory
gap
reasonable
fashion”
adopt
a “clear intent” to
guage shows
through
policy
of “difficult
resolution
Secretary
jurisdictional meaning.
de-
agencies
equipped
choices
better
are
to make than courts.” Nat’l Cable Tele
impact
&
clined to consider the
of the Indian
Servs.,
X
comms. Ass’n Brand
Internet
though
canon—even
Field Solicitor
967, 980,
545 U.S.
application
concluded
of the canon was
explana
L.Ed.2d
an
Without
necessary because Arizona law was too
reasons,
tion of
it is
agency’s
impossi
yield
straight-
unsettled on the issue
agency employed
ble
know whether the
no policy
forward answer—and mentioned
expertise
“simply pickfed] permis
its
or practical concerns.
sible
out of a hat.” Vill. of
that,
has
explained
Court
Bd.,
Barrington
Transp.
Surface
although
“scope of review
(D.C.Cir.2011)
F.3d
(holding
arbitrary
capricious standard is nar
agency
at
an
warrants deference
Chevron
row,”
must
agency
“the
articulate a
if
step
“only
agency
two
has offered a
satisfactory explanation for its action.”
why it
explanation
reasoned
chose that
Veh.
Ass’n v.
Farm
Motor
Mfrs.
interpretation” judged
“only
according to
Co.,
Auto.
Mutual
Ins.
U.S.
actually
[agency]
the rationales the
offered
(internal
2856, 77
S.Ct.
L.Ed.2d
decision”)
added);
(emphasis
in its
see also
omitted).
quotation marks and citation
Local
United Mine
Union
Workers
situation, deferring Secretary’s
FMSHRC,
Am. v.
917 F.2d
agen
unexplained
permit the
caveat would
(D.C.Cir.1990) (upholding agency’s inter
cy
sidestep
exper
duty
bring
its
pretation
step
at
two .even where
Chevron
policy
tise to bear
the “difficult
choices”
disagreed
agency’s
the court
con
making.
Negusie,
is tasked with
meaning
clusion that the
of the statute was
523, 129
“plain”
the court concluded that
Because the
relied on the text
a rule of constitutional law and a rule of
alone,
statutory
require
we “remand to
construction and using
plain
statement rule
question
light
example
to consider the
afresh
of a rule of
construction).
ambiguity
Delgado,
we see.”
648 F.3d
The rule counsels
that “absent a
n. 12
clear indication of
(quoting Negusie,
Congress’
at 1103
*12
balance,
523,
1159);
Labs.,
change
intent
PDK
the proper
129 S.Ct.
see also
Inc.,
adopt
course
a
[is]
construction which
(holding
F.3d at 797-98
Salinas,
maintains the existing balance.”
ambiguity
statutory
where there is
59,118
522 U.S. at
S.Ct. 469.
upon
text “it is incumbent
not
simply
parsing
to rest
on its
of the statuto-
To
begin,
the nine briefs filed with the
ry language.
bring
It must
experience
court, it
surprise
is no
that not a single
expertise
bear in
of
light
competing
brief referenced
argument.13
It
stake.”) (footnote
interests at
and citation also telling
party
that no
arguеd that the
omitted).12
Secretary’s
6(d),
§
construction of
in par-
ticular, raised
prob-
serious constitutional
puzzled by
We are
the dissent’s invoca-
implicated
lems or
sovereignty.
state
tion of the clear statement or “federalism”
appellants’
Arizona
effort
argument
at oral
rule,
canon. The clear statement
which is
to reframe the rule to one of constitutional
construction,
statutory
a canon of
not a
6(d)
unavailing
avoidance is
law,
rule of constitutional
applies where
does not implicate constitutional sovereign-
courts
susceptible
]
statute
“confront[
ty
concerns. Not
is this recharacteri-
plausible interpretations,
two
one of which
zation
the claim an eleventh hour effort
existing
balance of federal
alter[s]
to change gears, but this canon of con-
powers.”
and state
v.
Salinas
United
struction does not bear on our interpreta-
States,
52, 59,
469,
522 U.S.
118 S.Ct.
139
tion of the Gila Bend Act.
(1997);
L.Ed.2d 352
see also Hilton v.
Comm’n,
South Carolina Pub. Rys.
502
Neither the
nor
ap-
dissent
the Arizona
197, 205-06,
560,
U.S.
112 S.Ct.
116 pellants have articulated a
sovereign-
state
L.Ed.2d
(distinguishing
560
between
ty or constitutional
interest
vis-a-vis
deference,
canon,
12. Aside
application
from the issue of Chevron
of the Indian
and other
construction,
argues
Department
the Nation
that the
of the
statutory
relevant canons of
compelled by
Interior’s trust decision is
the first instance on remand.
“The canons of
requirement
Indian canon's
that when there
applicable
construction
in Indian law are
proper interpretation
is doubt as to the
anof
unique
relationship
rooted in the
trust
be-
ambiguous provision
ain
federal statute en-
tween the United States and the Indians.”
tribe,
acted for the
Indian
benefit
an
“the
Nation,
County
Oneida
v. Oneida Indian
470
(quoting
doubt
benefit the
[will]
Tribe.”
Arti-
247,
226,
1245,
U.S.
S.Ct.
ing
argument,
the district court
The Indian
empowers
noted
Commerce Clause
agreed
“counsel for Glendale
during Congress
regulate
“[t]o
Commerce ...
*14
Const,
oral argument
Plaintiffs
[that]
ask the with the Indian Tribes.” U.S.
art.
to
ground
Court
break new
on this issue— I,
8,§
cl. 3. The
Court has inter-
depart
to
every
from
court decision that
preted
broadly:
this clause
“the central
See,
has previously
e.g.,
addressed it.”
function of the Indian Commerce Clause is
15,
Kempthorne,
Carcieri v.
497 F.3d
39-
to provide Congress
plenary power
to
(1st Cir.2007) (en banc),
40
on other
rev’d
legislate
the field of Indian affairs.”
379,
1058,
grounds, 555
129
U.S.
S.Ct.
172
Mexico,
Cotton Petroleum Corp. v. New
(2009)
L.Ed.2d
(emphasizing
pow
163, 192,
1698,
490 U.S.
109 S.Ct.
expressly
ers
delegated Congress
do not
(1989).
L.Ed.2d 209
That “Indian rela-
Amendment,
implicate the Tenth
and that
tions
province
[are]
exclusive
of federal
Congress
plenary authority
“[b]ecause
has
beyond dispute. Cnty.
law” is
v.
Oneida
of
affairs,
regulate
challenged
Indian
[the
State,
Oneida Indian Nation New York
of
not
act] does
offend
Tenth Amend
226, 234,
1245,
470 U.S.
105 S.Ct.
ment.”).
appeal,
On
appel
Arizona
(1985).
L.Ed.2d 169
See also Morton v.
lants offer no such acknowledgment. The
Mancari,
535, 552,
417 U.S.
94 S.Ct.
gist of
argument
their
is that
the Gila
AFFIRMED
REVERSED
part
system
as to the
... belie the notion that
AND REMANDED
federal
6(d).
interpretatiim of
grant
would use
an obscure
authority
traditionally
to regulate
areas
party shall bear
its own ex-
Each
police
supervised
power.”
the States’
penses
appeal.
243, 274,
Oregon,
Gonzales
SMITH,
Judge, dissenting:
(2006).
N.R.
Circuit
904,
ty permissible it was for an holds agency to exercise what Chief Justice Rob- majority’s decision remand extraordinary “an assertion erts called has “Congress improper, because by taking trust for an power”1 land into directly spoken to the precise ques- has one the middle of Indian reservation *15 Chevron, U.S.A., before us. Inc. tion” See cities, populated contrary Arizona’s most Council, Inc., v. Natural Res. Def. language plain Gila Bend 81 L.Ed.2d Replacement Indian Reservation Lands resolve We should this case Act, 99-503, Pub.L. 100 Stat. 1798 No. against step under Chevron Act”). (1986) (“Gila Bend The one, interpretation Secretary’s because the clearly prohibits Bend text of the Gila contrary plain language is land, ability Secretary’s to take is (2) effectively renders political statute city, “within the of a limits” into in our feder- protections afforded States city’s wholly sur- trust when limits Thus, system virtually alism nonexistent. land, at parcel round that such as the issue I respectfully must dissent. in this case. Furthermore, even if the Bend Act Gila I. majority argues, as the “ambiguous,” generally agree I with facts and has Supreme Court made clear courts by forth ma- procedural history as set should “not extend Chevron deference” to Nevertheless, jority. additional facts are an agency decision where the “administra- Thus, my in Part II. analysis relevant tive alters the federal-state say, Harvey late Paul would “here’s encroach- permitting framework federal power” story.” a such the rest of the upon ment traditional state 07-526, 3, 2008). (Nov. Kempthorne, Arg. No. Oral Tr. 36:13-17 Carcieri island,” ty unincorporated A. it is land under jurisdiction of Maricopa County. (“the O’odham Na- The Tohono Nation County islands stem from a once-common tion”) a federally recognized Indian tribe practice “strip called annexation.” This largest second base in with the Tribal land type of annexation occurs when a city “ex States at 2.8 million acres. the United by annexing long tend[s its] boundaries 4,375 square base amounts That land strips other, property” encircle un miles of reservation South and Central incorporated Republic I put perspective, Arizona. To this size in areas. Inv. Fund slightly of Connecticut is оnly Surprise, the State v. Town 166 Ariz. 5,006 square The larger, (1990) (en miles in area. 1251, 1254-55 banc). P.2d size, State of Delaware is less than half practical benefits a city enjoys once 2,026 square miles. land is unincorporated surrounded by the previ- Gila Reservation had city’s jurisdictional boundaries are two- part of ously been the Nation’s land base. First, fold. cities are able to “exercise 10,000 nearly The reservation was acres— strong degree control zoning over percent .4 less than of the Nation’s total islands, development” county holdings. land When part of the Nation’s city’s planning land-use documents and land was flooded as a of problems result zoning ordinances are able to guide the a federal dam project, Congress en- zoning and of county subdivision islands. acted the Gila Bend Act in to “re- Improvement Ass’n v. Carefree (cid:127) (cid:127) (cid:127) placet [Gila Bend Indian ] Reservation] Scottsdale, Ariz. 649 P.2d lands with lands suitable for sustained eco- (Ariz.Ct.App.1982); Ariz.Rev. nomic use which is not farm- principally (“The 11-814(G) rezoning Stat. or subdi- 2(4) 99-503, § Pub.L. ing....” No. plat any unincorporated vision area Act, Stat. 1798. Under this Nation completely city surrounded or town assigned rights to the United States all guideline adopted shall use as a gener- 9,880 and title acres of the Gila Bend al plan prescribed and standards as in the 4(a). Reservation million. Id. at $30 zoning subdivision and ordinances of the was pur- The Nation then authorized city April 10, or town after 1986.” (empha- replacement land, chase and the added)). Second, sis generally no other 9,880 authorized to of re- take acres municipality unincorporated can annex trust, placement into would which land such as Parcel that is within a city’s new Indian create a reservation. Id. at *16 limits. See geographic Improve- Carefree § 6. Ass’n, 986; ment at 649 P.2d Ariz.Rev. Nation, along many In the Stat. 9-101.01. tribes, publicly Proposi- other supported designed tion ballot City 202—a measure The of Glendale’s exterior corpo- construction in Ari- prevent of new casinos rate was boundary extended to encircle zona cities. The publicly Nation asserted time, Parcel 2 in 1977. Since that Glen- not that it would authorize Indi- additional guided zoning dale has and controlled the an casinos cities. development subdivision of Parcel Indeed, surrounding and the land. Parcel the bought Then Nation Parcel Planning 2 is part Municipal of Glendale’s City through within the of a Glendale Area and is included Glendale’s General complex using a series of transactions shell Plan. Parcel has a rural Currently, zon- company with an address. out-of-state (R-43) ing designation Parcel 2 is land that within would allow physically limits, corporate a “coun- development. Glendale’s but as limited argu- able to submit proceedings) the sur- were developed City of Glendale The ability by on letter against application in reliance its the rounding area ments zoning designation and land- the makes much of only. Though majority control legal scheme. under submissions,” of Parcel Maj. Op. use “lengthy these instance, finished in 2005 Glendale For submit- length the letters directly public high school building new hardly improved these by parties ted Glendale later what across street con- parties which these could process Glen- acreage. the Nation’s learned was The Secretary’s opposing test actions. has dale, private parties, also as well as when the Secre- parties were never alerted in the area significant resources invested tary application. filed amendments to its stadium, million building a $240 $450 Further, of Arizona did not even Major arena, million million and a $120 participate this limited fashion. training facility. League Baseball Secretary In concluded January the Nation transferred eligible 2 was taken into trust Parcel be Only ownership days Parcel 2 itself. Secretary The under the Gila Bend Act. later, asking it application filed meaning ‘corpo- determined that “the Secretary property take into trust a clear plain” rate limits’ is and “shows grant permission the Nation to estab- eligible property intent to make III, gambling Las Vegas-style lish a Class of a unincorporated if it is side facility. § 2703. The Nation 25 U.S.C. line.” city’s boundary Department The that this “nеw casino will be has advertised published Register Interior then a Federal largest in the state.” There are cur- announcing notice its final determination rently gaming no within the facilities 30,000 consisting acquire “to Parcel of 53.54 people More than live Glendale. two casino in land into for Tohono proposed within miles acres of currently “family what is described as a Fed.Reg. O’odham Nation....” 52550- friendly” 2010). area. (Aug. stayed acquisition litigation has
B. proceedings. Depart- practices, Pursuant to usual sought Plaintiffs review district court. the Nation’s land- ment Interior treated There, they raised both and con application parte filing. into-trust as an ex arguments had raised stitutional been It applica- notified the public never agency. before district concluded tion, docket, pleading created a set a the “within the limits” schedule, hearing, or held because was applied phrase “ambiguous” Chev so required to do under the notice and uphold agency’s comment ron deference to deci provisions §§ of 25 G.F.R. 151.10 151.11(d). Chevron, 842-43, 104 Opponents applica- sion. See (who happened sought injunc- of the S.Ct. 2778.2 Plaintiffs tion aware *17 says ysis finding parties' interpretation 2. majority the both The that district court Secretary plausible, contemplated that the of the Interior the district court "concludEed] correctly Majority applied the” Gila Bend Act. what it must do when "both sides advocate interpretations” Op. slight and concluded at 1142. This is a misstatement. reasonable interpreta- meaning agency's the district court found "the of that it “must defer to The Thus, corporate ambiguous” at court 'within the to be tion.” Id. 989. the deferred limits’ was Cmty. agency's Gila River the because it in the Bend Act. Gila reasonable, States, F.Supp.2d necessarily did not v. United but it find (D.Ariz.2011). conducting interpretation. it the correct After its own anal- was Secretary taking block the from limits” refers to land is geographically tion to jurisdictional the in during appeal; into trust enclosed the limits of a Parcel Act, city. Under injunction, court con- the Gila Bend granted district Secre- tаry can only take land into trust upon “difficult” and cluding Plaintiffs raised conditions, completion statutory of certain legal questions warranting “substantial most which important are in Section ap- deliberative consideration on more 6(d) and relate to size and location of The district also concluded peal.” court parcels: harm, land irreparable would be there The right Secretary, request would lose its to annex the at the
Glendale Tribe, trust, shall if it were taken into which hold in trust for the benefit the Tribe land which “irreparable quality-of-life lead to the Tribe would (c) acquires pursuant to subsection injuries gaming from on Parcel activities requirements which meets the of this 2.”3 subsection.... Land does not meet the II. requirements of this subsection if it is Pinal, majority phrase Maricopa, The concludes outside the counties of Pima, Arizona, corporate “within the limits” the Gila or within corpo- “ambiguous,” any city is and thus re- rate limits or town. Land meets requirements mands to allow Secre- this subsec- “to tary bring expertise only his to bear to tion if it constitutes more than Maj. interpret provision Op. separate consisting anew.” at three areas con- tracts, disagree I phrase ambig- tiguous that the is least one which two contiguous uous for reasons. areas shall be Lucy San Village. Secretary may waive the
A.
requirements
preceding
set forth
First,
held,
Supreme
as the
Court has
sentence if he determines that additional
susceptibility
“the
word
to alter
[a]
areas
appropriate.
are
meanings
native
does not render the word
6(d)
99-503, §
Pub.L. No.
100 Stat. 1798
used,
ambiguous, particular
whenever
added).
(emphasis
ly
meanings
where all but one of the
Thus,
plain language
of the Gila
ordinarily
eliminated
context.” Carci Bend Act
that it was
makes clear
aimed
Salazar,
eri v.
allowing the
to assemble
Nation
new res-
(alterations
1058,
2 is more than
easily made that distinction.
have
Nothing
the text
could
existing reservation.
6(d)
that Arizona
anticipates
of Section
Indeed,
by Congress in
other statutes
purchased
land to be
expected
that, if Con-
indicate
similar circumstances
the
throughout
sprinkled
patches
little
municipali-
refer
gress only wished to
inside
exte-
State,
particularly
and
land, it
ty’s
or annexed
knew
incorporated
Rather, the Gila
cities.
boundary of
rior
See, e.g.,
do
25 U.S.C.
how to
so.
ineligible to be taken
land
Bend Act makes
1724(i)(2)
Indian tribe to use
(allowing
inside, or
lies physically
if it
into trust
purchase
funds to
government-provided
city.
within,
boundary,
limits of a
or
“acreage
unincorporated
within ...
areas
added));
(emphasis
of
of the State Maine”
there is “no evidence
When
4(d)(1),
102-402, §
Pub.L. No.
any special mean-
see also
acquired
... have
words
(1992)
Stat.1961,
(referring
“an-
commerce, they must re-
ing in trade or
refuge
on
lands within
ordinary meaning” based
nexation
ceive their
of
”
(empha-
general
government”
local
unit of
language
people....
of
“the common
added));
101-514, 104
Hedden,
304, 306-07,
No.
Stat.
13 sis
Pub.L.
Nix v.
(1991)
(1893).
(referring
incorpo-
to “all
The ordi-
L.Ed-. 745
town Matewan”
as
units within the
of
is defined
rated
nary meaning of “within”
added));
Pub.L. No.
(emphasis
part;
or
the inner
inside.”
into
“[i]n
3(a),
(referring
Heritage Dictionary
Stat.
American
cities
incorporated
final
furth-
“the
area
“the
or
“Limit” means
bounds,
City
(emphasis
Fremont”
add-
confines,
or restriction
Union
est
Thus,
ed)).
argument
2 is
This contradicts
Id. at 758.
Parcel
something.”
limits,
that “within
United States and
Nation
corporate
because
within Glendale’s
within
corporate limits” means both
the “final or furthest con-
it is “inside”
corporate
interior
lim-
City.4
is the
the exterior and the
fines” or
This
“bounds”
city.
obvious,
of the text
its of a
plain meaning
enacting
likely
when
Congress
understood
Furthermore,
if
even
the “within the
6(d)
Act.
the Gila Bend
Section
spe-
have a
phrase
limits”
does
(as
meaning,”
cific “settled
the United
reading
In contrast to
natural
contend),
statute,
the back-
Nation States and
Nation
the United
States
norms,
ground
against
Con-
legal
are
relevant
which
argue that there
“two
bound-
boundary
gress
when it
presumed
and the
is
aware
city’s
aries: the
exterior
clearly
boundary,”
“only
legislates,
supports
that is
most
interior
interpretation
of the statute.
between
two
is within
Glendale’s
those
boundaries”
background legal norm
corporate limits.
The most relevant
interpretation
Such
law,
sense,
certainly not
Act is Arizona state
and is
to the Gila Bend
strains common
reading
Bend Act
affects
of the statute based
Gila
obvious
Arizona,
fair
and it is “a
and reasonable
language
people.”
the “common
Nix,
is
presumption
[Cjongress”
If
aware
Notably, Arizona’s ordinances Congress where phrase has used the “ex- corporate phrase use the “within limits” boundaries,” terior are com- these statutes instance, geographical sense. For Ari- (cit- pletely inapposite. Maj. Op. at 1148 9-461.U(A) zona Revised Statutes Section 465). ing 485; § 16 U.S.C. 25 U.S.C. municipality “plan- allows to exercise its way referring These statutes are in no ning powers” “unincorporated over territo- unincorporated of land islands surrounded ry” corporate is “within its lim- by limit, corporate an outer and thus there its____” added). (emphasis id. See also nothing is to indicate these statutes would 9-462.07(A) (same). have any bearing factually on this distinct Rather, they merely situation. refer to Supreme
The Arizona Court has also area, boundary” “exterior such as interpreted “corporate the words limits” Furthermore, a national forest. dis- as refer municipality’s to a “exterior boun- above, cussed the Arizona daries],” Supreme Court holding university that a already had interpreted “corporate lim- campus City was located “within” the synonymous limits, it[ ]” to with “exterior Flagstaff corporate s because it was Co., boundary.” Flagstaff Vending “completely the “exterior surround[ed]” P.2d at It is likely Congress also boundary Flagstaff.” Flagstaff Vend- phrases synonymous, viewed these so ing City Co. v. Flagstaff, 118 Ariz. (in nothing Congress there banc). significant is about 578 P.2d using the “exterior phrase boundaries” court emphasized ordinary that “the mean- ” these statutes. ing of ‘within’ is “on the innerside ... (inter- region.” inside the bounds of a Id. The Nation is correct that Arizona’s omitted) nal quotation (quoting marks annexation ordinance “extended” Webster’s Third New International Dictio- lim- “present corporate of Glendale’s (1965)). nary Notably, the Arizona strip its ... include” a of land surround- Court’s turned on ing merely Parcel But that meant that geographic campus, location of not strip part the annexеd then formed jurisdictional status. “corporate limits.” encircled (Parcel 2) court, still binding Flag- on this fell within those limits.
While about Vending persuasive authority Nothing this ordinance defined the staff corporate way understood “within the term “within” that would detract limits” geographic plain to refer to the bound- from meaning.5 this majority authority jurisdiction. 5. The cites to Arizona Revised Stat- is an issue of 9-500.23, fact, "Authority non-zoning utes Section entitled ordi- this ordinance is safety, provide protection emergency nance fire about which “outside fire ser- Thus, corporate jurisdictional limits” in a sense. vices outside limits.” However, jurisdictional usage jurisdictional “corporate nature limits” makes context, entity phrase distinguishable sense in because which used there is provide safety phrase geographic authorized to fire and nature used in a services *20 omitted). (internal Brief, quotation Legal the De- marks a 1992
Notably,
Therefore,
meaning
because the
of the Act
recognized
Interior
itself
partment
analy
step
is clear at
one of the Chevron
6(d)
re-
“geographical
created
that Section
sis,
Secretary’s
no
is
to the
deference
owed
to take the land into trust
quirements”
interpretation.
Dynamics
See Gen.
Land
limits
corporate
if
only
it was “outside
Cline,
581, 600,
v.
Sys., Inc.
540 U.S.
124
Brief
any city
Appellee
or town.”
for
of
(2004) (“Even
1236, 157
1094
L.Ed.2d
4,
Nation v. Bureau
Tohono O’odham
for an
able to claim all the authori
(I.B.I.A.
Affairs, 22 IBIA 220
Indian
of
Chevron,
ty possible
to
deference
its
1992).
14,
position
directly
This
is
Aug.
is
statutory interpretation
called for
July
contrary
Department’s
2010
judicial
when the devices of
construction
“within the
position
this case
yield
have
tried and found
no clear
been
to
“jurisdictional
corporate
phrase
limits”
intent.”).
congressional
sense of
in nature.”
B.
plain language
[the
“If
of
ren-
Act]
clear,”
reasonably
meaning
ders its
if
majority
Even
is correct
not investigate
court “will
further unless
a
ambiguous,
statute is
there is
second
application
its
leads to unreasonable or
majority’s
reason that
decision to re-
impracticable results.” United States
mand
Supreme
is incorrect. The
Court’s
Cir.2006)
Ye,
(9th
1117,
construction,6
Fei
1120
of
436 F.3d
federalism canon
which
context,
zoning
majority’s
ed
reliance on
Tribes
Chehalis Indian Reservation v.
of
334,
(9th
misplaced.
Cir.1996)
Washington,
this ordinance is
96 F.3d
340
(declining
apply
multiple
canon where
interpreting
Other state cases
identical
dispute fishing rights);
tribes
see also North-
corporate
language
"within the
limits”
have
Hollowbreast,
Cheyenne
ern
Tribe v.
425 U.S.
come to the same conclusion as the
649,
7,
1793,
n.
655
96 S.Ct.
H61
515, 30
analy-
one of the Chevron
L.Ed.2d
operates
step
(1971) (“[UJnless Congress
judicial interpreta-
conveys
aas normal tool of
sis
tion,8
purpose clearly,
this court
it will not be
makes clear that
is re-
deemed to
significantly changed
have
ambiguous
statute
federal-
quired
interpret
balance.”).
A
discussion
the back-
of substantial state interests ab-
favor
justifications
ground
clear state-
in-
clear indication that
sent
*21
ment rule
SWANCC,
illustrates the relevance of this
531
tended otherwise. See
U.S.
canon here.
675;
172-74,
Dep’t
121
Pa.
S.Ct.
206, 208-09,
Yeskey,
v.
Corr.
524 U.S.
118
The debate over what constitutes the
1952,
(1998);
141
215
BFP
L.Ed.2d
S.Ct.
power
appropriate balance of
between the
531,
511
Corp.,
v. Resolution Trust
U.S.
states and federal government and—more
544^45,
1757,
114
128 L.Ed.2d
S.Ct.
556
relevant
this case—how that balance of
(1994);
452,
Ashcroft,
v.
501
Gregory
U.S.
enforced,
should
power
dates back to
2395;
Gonzales v.
111 S.Ct.
see also
Ore-
founding
Regarding
of this nation.
specific
(2009),
conсerns arise.
this rule L.Ed.2d 193
the clear statement
Supreme
has
been used
Court
rule
apply,
did not
question
because the
in particular
legal
substantive
“areas tradi-
merely
about which agency had au-
tionally
supervised
police thority
the States’
to issue discharge permits, rather
power.”
Oregon,
Gonzales v.
546 U.S. at
than
whether an
authority
had
274,
has pro- demonstrated its commitment to explained Court may the statute tecting ability regulate ambiguous, State’s interpretation either had a private land use and property rights interests, within similar effect on the State’s instance, territory. its own For in thus the agency’s Court deferred to the SWANCC, recognized Court rather applying than that the agency’s interpretation would 274-75, re- clear statement rule. Id. at significant sult in “a impingement of the S.Ct. 2458. primary States’ traditional and power over contrast, in Gregory, interpreta- one justification land and water use” as a tion of the ADEA would have allowed an
invoking the clear statement
rule. 531 agency
regulate
require-
retirement
174, 121
675;
at
U.S.
S.Ct.
see also Hess v. ments for
judges—a significant
state
intru-
Port Auth. Trans-Hudson Corp., 513 U.S.
interests,
sion
whereas the other
that constrains discretion on held, “Congress, we have supported explained the former that Congress had
that
interpretation of “navi-
not alter the fundamental details of a
expansive”
does
“more
168-71,
at
Id.
in
regulatory
vague
scheme
terms
ancil
gable waters.”
words,
ambigui-
the type of
not,
In other
lary provisions—it
might
does
one
it is
must be such that
not
in the statute
ty
hide
say,
elephants
mouseholes.” Id.16
protect
was able to
its
that
clear
in-
regarding
agency’s
This concern
political
through
interests
significant
terpretation
statutory authority
of its own
may not have
the State
because
process,
compounds
agency’s interpreta-
when the
important
its
interests
that
on notice
been
authority-granting
tion of the
statute itself
at stake.
were
of Congress’s
strains the bounds
constitu-
(and
only in
applies
factor
this
Third
authority.
example,
tional
For
context),
Supreme
administrative
SWANCC,
Court
that
explained
likely to
this clear
apply
more
seems
Court
an administrative
“[w]here
agency
requirement when
statement
invokes
statute
the outer limits of
scope
statutory
own
interprets the
Congress’
expect
clear
power, we
indica-
authority
regulate
the traditional
that
Congress
tion
intended
result.”
instance,
For
realm at issue.
Gon
172, 121
531 U.S. at
S.Ct. 675.
Court
ex
Oregon,
v.
Court
zales
explained that this concern stems from the
conclu
plained
it is
“commonsense
Congress
“assumption that
does
casu-
“£j]ust
conventions of
sion”
ally
agencies
authorize administrative
Congress
un
expression indicate
interpret
push
a statute
the limit of
likely
scope
to alter a statute’s obvious
172-73,
congressional authority.”
at
Id.
through
hints,
authority
muffled
division
However,
while constitu-
S.Ct. 675.
background principles
of our federal
may heighten
tional
concerns about
limits
Congress
notion that
system also
belie
authority, clear statеment rules “cannot be
of author
grant
would use such an obscure
simple
defended as a
invocation of
rule
traditionally super
ity
regulate
areas
avoiding
ques-
about
serious constitutional
police power.”
vised
the States’
tions,”
these
apply
rules
even
274,126
U.S.
S.Ct.
The Court thus
where, “if
acted
Congress
situations
explained
idea that
that “[t]he
requisite clarity,
the statute
would
Attorney
gave
General such broad and
Jr.,
Eskridge,
constitutional.” William N.
through
authority
implicit
unusual
dele
al., Legislation
Statutory
et.
Interpre-
gation
is not sustainable.” Id.
(2d ed.2006).
tation 368
quoted
not Arizona’s address Im- incorporated. is sovereignty and state land not Tenth Amendment Carefree Ass’n, 987; at Ariz. 649 P.2d provement substantive constitution- create a concerns 11-814(G). city’s A § land-use prevents Rev.Stat. al limit zoning in the first into trust ordinances “tak[ing planning 2] Parcel documents Br. Appellants’ Reply guide zoning able and subdivi- place,” Arizona are concerns county Improve- Arizona’s other nor do I address sion of islands. Carefree Secretary’s Act and Ass’n, 986-87, Bend In with the Gila ment 649 P.2d at it, I conclude addition, Arizona, interpretation generally no other procedural canon’s re- federalism unincorporated can municipality annex clarity, applied as quirement for added city’s such Parcel 2 that is within a land 6(d)’s alone, language requires a 986; Section limits. at Ariz.Rev. geographic Id. and Glendale. for Arizona ruling 9-101.01; Kane v. Stat. see also Beaverton, Or.App. P.3d Second, statutory interpretation de- (2005) (“[Tjhere a of ra- are number the Gila Bend Act is over one bate over legitimate disparate tional reasons for significantly that would bur- ”). treatment ‘island’ territories.... state interests den Arizona’s substantial Thus, expecta- Glendale had reasonable interpretation that is much and another it would able to guide tions that be Secretary’s application less intrusive. The development, 2’s and that control Parcel Bend Act of the Gila would interfere by any not claimed other land could be than sovereign powers more Arizona’s entity changing the land use capable reservation, an Indian typical creation of development. zoning on this reliance a is ever regardless of whether casino scheme, City of Parcel Glendale zoned It actually built on Parcel 2. is a common- developed 2 as residential and the sur- greater that a sense conclusion state has a rounding zoning area with that about land within its cities consistent concern how designation. reliance interests These used than land outside cities. SWANCC, in the would exist to the same extent not hypothetical majority poses, regarding (recognizing heightened concern over immediately adja- land “wholly “acquiring land within trust located two Illinois city’s boundary cent to a outermost compared “actually to land that counties” almost, entirely even land that was but not navigable waterway”). on a abutted by Maj. Op. encircled land.”18 Furthermore, ordinary land use con- at 1152. by heightened are the fact that in cerns Arizona, The State’s control—the abili- municipalities expect to be able to territorial tax, ty regulate, and to land strong degree “exercise of control over control effectively zoning development” over land within use—is eliminated when court, government, question given is made we are before this cession government’s not bound it is not clear such land would meet 'erroneous whether ” Act, (quoting Flamingo requirements view of the law.' Id. Re Gila in- other States, sort, separate Inc. v. United 664 F.2d cluding that the land be "three areas (9th 1982)). tracts, particularly contiguous 1391 n. 5 Cir. This is consisting one of least parties true where all had the chance to ad contiguous Lucy which areas shall be to San argument. 99-503, 6(d) dress this issue at oral Village,” Stat. Pub.L. No. non-contiguous parcels are or else that Furthermore, “sufficiently reasonably managed question close to be of whether immediately adjacent single as a economic unit or residential unit.” to Parcel 2 and outside city FLR.Rep. into No. at 11 Glendale’s limits could taken
1169 invested) land is taken into trust. As courts have understandably heightens noted, “federally-recognized reservations State’s concerns. are, many ways, separate jurisdic Furthermore, would the Secre they tions from the state in which are tary’s decision affect ordinary the State’s States, located.” Tworek v. United powers, land use the agency’s decision (2000). 82, Importantly Fed.Cl. for likely here will implicate major budgetary case, sovereignty tribal blocks “state ac decisions. example, For if a casino is impairs ability tion that aof tribe to built, city officials estimate that the casino governmental exercise traditional functions complex require will Glendale to build sig zoning such as ... or the exercise of nificant additional infrastructure in the general jurisdiction civil over the members fire, (e.g., etc.), area police, well as as to of the tribe.” Crow Tribe Indians v. spend millions of additional dollars of ex
Montana,
1104,
(9th
650 F.2d
Cir.
penditures
public
safety outlays. The
1981)
added);
(emphasis
see
Segundo
also
Supreme
explained
Court has
that “[f]ed
Mirage,
Rancho
F.2d
when,
eralism concerns
heightened
are
as
(9th Cir.1987) (rejecting
1390-94
a State’s
cases,
in these
a federal court decree has
attempts
apply
local laws such
zoning
as
lands).
dictating
the effect of
budget
ordinances to reservation
state or local
Su
preme
explained
Flores,
Court has
that one
priorities.”
Horne v.
557 U.S.
independent “barriers to the assertion of 448,
129 S.Ct.
forced eligible not be be 2 would 158 L.Ed.2d like Parcel trust. (indicating taken into that could if up limits” its against run “constitutional dilem- Arizona’s complicate To further legislation with the “interfere[d] ma, of Interior was Department when State”). authority power ap- land-into-trust considering the Nation’s participate Arizona did not plication, Therefore, assuming even the Gila Bend way and had no parte filing this ex ambiguous, ambiguity Act is of this nature public noti- so. There was no formally do interpreted in a can be favor. State’s schedule, docket, fication, pleading no no that Though majority is correct this Op- hearing parties. no for interested feder- “case illustrates the nuances of our happened who application ponents of system government,” Maj. Op. alist proceedings were able aware majority misunderstands applica- arguments against the to submit sovereign prevail Arizona’s interests must they were not only, tion letter but case, precluded in this and this court is Secretary filed amend- alerted when applying from Chevron deference Thus, the statu- application. ments to its interpretation. majority’s Secretary’s tory and facts of this interpretation tools (and stage set decision to remand ambiguity at issue in case that the indicate deference) unwarranted Chevron eviscer- phrase limits” corporate the “within very political ates on which protections type prevented Arizona was Court relied when it decided protecting state inter- adequately protect in Garcia that States can their political process. through ests through sovereign political interests lastly, Secretary’s inter- Third and process. pretation scope here concerns the of its authority to this own take land into trust. clearly provides
While the Gila Bend III. take authority for plain language into Indian reservations in Because both the create locations, grant authority certain is Gila Act and the canon of construc- limitations, based significant including favoring tion requiring State’s interests such reservations be created corporate an interpretation of “within the corporate limits” city. “within the of a contrary Secretary, limits” to that of the I majority concedes the Gila Bend respectfully must dissent. Act is “ambiguous” regarding whether the language
“within the limits” Secretary’s meant to action authorize taking Maj. Op. Parcel into trust. SWANCC, in Gregory, As and Gori- Oregon, zales v. courts should not defer to interpretation an agency’s ambiguous authority grant when the up against agency’s buts limit of the authority. especially own This is true may an interpretation where such also press of Congress’s the outer limits au- thority Indian Commerce