Nаtive American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. S§ U01-m2 (2006): 24 C.F.R. § 1000.318, a regulation directing the Department of Housing and Urban Development to remove housing units that are no longer owned or operated by a tribe from the Formula Current Assisted Stock component of the tribe’s funding calculation, does not conflict with the statutory mandate, found at 25 U.S.C. § 4152(b)(1), that the allocation formula be based on housing units a tribe owned or operated as of September 30, 1997.
OPINION
This case arises under the Native American Housing Assistance and Self-Determination Act of 1996 (“NAHASDA” or “the statute”), as amended, 25 U.S.C. §§ 4101-4212 (2006). Plaintiffs sue here to recover grant funds initially paid to them under the statute but later recaptured by the Department of Housing and Urban Development (“HUD” or “the agency”) when HUD determined that the allocation formula on which the grants had been based had been misapplied. This action is currently before the court on the parties cross-motions for partial summary judgment.
FACTS
Congress enacted NAHASDA in 1996 to consolidate then-existing public-housing assistance programs for Indian tribes and to replace them with a single block-grant program to address the tribes’ affordable housing activities. See Pub.L. No. 104-330, § 107, 110 Stat. 4016 (1996); “Implementation of the Native American Housing Assistance and Self-Determination Act of 1996; Final Rule,” 63 Fed.Reg. 12,334, 12,334-35 (Mar. 12, 1998). Consistent with this goal, NAHASDA directed the Secretary of HUD to provide annual grants to Indian tribes or tribal housing authorities in support of their need for affordable housing.
Although NAHASDA itself did not establish a formula for allocating the annual appropriation among Indian tribes, the statute authorized HUD to do so using the negotiated rulemaking procedure set forth in 5 U.S.C. §§ 561-570. 25 U.S.C. § 4152(a).
(1) The number of low-income housing dwelling units owned or operated at the time pursuant to a contract between an Indian housing authority for the tribe and the Secretary.
(2) The extent of poverty and economic distress and the number of Indian families within Indian areas of the tribe.
(3) Other objectively measurable conditions as the Secretary and the Indian tribes may specify.
25 U.S.C. § 4152(b).
Pursuant to this statutory directive, HUD engaged in a negotiated rulemaking process with 48 representatives from the various Indian tribes. 63 Fed.Reg. 12,334. The resulting regulations — set forth at 24 C.F.R. §§ 1000.304-1000.340 (1998) — included the allocation formula identified in 25 U.S.C. § 4152(a). The allocation formula contained two components: “(a) Formula Current Assisted Housing Stock (FCAS); and (b) Need.” 24 C.F.R. § 1000.310. The regulations indicated that funding was to be allocated on the basis of the FCAS component first, with the remaining funds to be allocated according to need. 24 C.F.R. § 1000.324.
Despite this regulatory directive, a 2001 audit by HUD’s Office of Inspector General (“OIG”) revealed that HUD had improperly administered the grant program by failing to exclude from the grant calculation housing units that were no longer owned or operated by a tribe. Following the OIG’s audit and at the OIG’s recommendation, HUD performed audits of the program participants and concluded that the agency’s failure to apрly 24 C.F.R. § 1000.318 had resulted in overpay-ments to various tribes.
A tribal housing authority no longer involved with the present litigation brought suit in district court in Colorado, arguing, inter alia, that 24 C.F.R. § 1000.318 was invalid because it conflicted with the plain language of 25 U.S.C. § 4152(b)(1). Fort Peck Housing Auth. v. HUD,
The district court agreed. Finding that “the text of the statute makes its meaning ... clear,” the court explained as follows:
Congress expressly directed that the first factor in determining a tribe’s need for housing assistance is the number of dwelling units for which a tribe was receiving federal assistance when NAHASDA went into effect. The use of the phrase “the number” is definitive. The statute leaves no room for the formula to include some, but not all of the number of dwelling units that a tribe owned or operated pursuant to an [Annual Contributions Contract],
Id. The court accordingly invalidated 24 C.F.R. § 1000.318 based on a literal reading of Section 4152(b)(1).
On appeal, however, the Tenth Circuit overturned the trial court’s decision. Fort Peck Housing Auth. v. HUD,
In reaching this conclusion, the Tenth Circuit focused on the phrase “based on” in Section 4152(b), finding that the language should be interpreted as requiring that the factors enumerated in Sections 4152(b)(l)-(3) “form the basis, beginning, or starting point,
Following the district court’s decision in Fort Peck I, but prior to the Tenth Circuit’s decision in Fort Peck II, Congress amended NAHASDA through thе enactment of the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008 (“Reauthorization Act” or “2008 amendments”), Pub.L. No. 110-411, § 301,122 Stat. 4319 (2008). Particularly relevant to the pending motions, the Reauthorization Act rewrote Section 4152(b)(1) in its entirety, replacing the phrase “owned or operated at the time” (referring to the number of housing units on which the allocation formula was to be based) with “owned or operated by a recipient on the October 1 of the calendar year immediately preceding the year for which funds are provided.” The amendments went on to specify that a housing unit “shall not be considered to be a low-income housing dwelling unit for purposes of this section if — (i) the recipient ceases to possess the legal right to own, operate, or maintain the unit; or (ii) the unit is lost to the recipient by conveyance, demolition, or other means,” unless the unit was not conveyed to the homebuyer for reasons beyond the control of the grant recipient. 25 U.S.C. § 4152(b)(1)(A), (B). Finally, the Reauthori-zation Act indicated that the amendments to Section 4152(b)(1) “shall not apply to any claim arising from a formula current assisted stock calculation or count involving an Indian housing block grant allocation for any fiscal year through fiscal year 2008, if a civil action relating to the claim is filed by not later than 45 days after October 14, 2008.” 25 U.S.C. § 4152(b)(1)(E). Plaintiffs brought suit in this court on November 26, 2008, in satisfaction of the statute.
DISCUSSION
The issue now before the court is the very one decided in the tribe’s favor in Fort Peck /, but decided in HUD’s favor on appeal in Fort Peck II: Does 24 C.F.R. § 1000.318, by permitting HUD to remove from the FCAS component of the allocation formula housing units that are no longer owned or operated by the tribe, violate the plain statutory language of 25 U.S.C. § 4152(b)(1) directing that the allocation formula be based on “[t]he number of low-income housing dwelling units owned or operated at the time pursuant to a contract between an Indian housing authority for the tribe and the Secretary”? After careful consideration, we hold that it does not.
As indicated above, Congress identified the criteria to be used in the allocation formula in 25 U.S.C. § 4152(b) as follows:
The formula shall be based on factors that reflect the need of the Indian tribes and the Indian areas of the tribes for assistance for affordable housing activities, including the following fаctors:
(1) The number of low-income housing dwelling units owned or operated at the time pursuant to a contract between an Indian housing authority for the tribe and the Secretary.
(2) The extent of poverty and economic distress and the number of Indian families within Indian areas of the tribe.
(3) Other objectively measurable conditions as the Secretary and the Indian tribes may specify.
25 U.S.C. § 4152(b). The regulation, 24 C.F.R. § 1000.318, in turn provided in relevant part, as follows:
When do units under Formula Current Assisted Stock cease to be counted or expire from the inventory used for the formula?
(a) [Housing] units shall no longer be considered Formula Current Assisted Stock when the Indian tribe, [tribally designated housing entity], or [Indian Housing Authority] no longer has the legal right*359 to own, operate, or maintain the unit, whether such right is lost by conveyance, demolition, or otherwise, provided that:
(1) Conveyance of each [housing] unit occurs as soon as practicable after a unit becomes eligible for conveyance by the terms of the [Mutual Help Occupancy Agreement]; and
(2) The Indian tribe, [tribally designated housing entity], or [Indian Housing Authority] actively enforce strict compliance by the homеbuyer with the terms and conditions of the [Mutual Help Occupancy Agreement], including the requirements for full and timely payment.
24 C.F.R. § 1000.318.
A.
In plaintiffs’ view, the statutory language of Section 4152(b)(1) is plain and unambiguous: HUD is required to include in the allocation formula all of the housing units owned and operated by a tribe as of September 30, 1997, without exception.
In support of their argument, plaintiffs contend that Section 4152(b)(1), in contrast to the more general factors laid out in Sections 4152(b)(2) and (3), leaves no room for the exercise of agency discretion. In particular, plaintiffs point out that Section 4152(b)(1) directs that the allocation formula “shall be based on ... [t]he number of low-income housing dwelling units” for which a tribe was receiving federal assistance when NAHAS-DA went into effect. In plaintiffs’ view, the meaning of the phrase “based on,” when coupled with a definitive number, is clear: the statute mandates that the allocation formula must include all of the housing units identified in the text of Section 4152(b)(1). Nuclear Energy Inst., Inc. v. EPA,
Nor, in plaintiffs’ view, is the invalidity of the regulation remedied by characterizing the challenged formula as starting with the number of housing units identified in Section 4152(b)(1), but then going on to make adjustments to that number pursuant to Section 4152(b)(3). Plaintiffs argue that such an approach — the one endorsed by the Tenth Circuit in Fort Peck II,
In further support of their assertion that 24 C.F.R. § 1000.318 violated the original terms of NAHASDA, plaintiffs refer the court to the 2008 Reauthorization Act, amending Section 4152(b)(1) to allow HUD to remove certain units from the FCAS component of the allocation formula going forward. In plaintiffs’ view, both the circumstances surrounding the enactment of the amendments and the text of the amendments themselves confirm that the Reau-thorization Act represents a substantive change from the earlier version of the statute — one designed to reconcile the illegal regulatory procedure set forth in 24 C.F.R. § 1000.318 with the congressional intent clearly expressed in Section 4152(b)(1). Plaintiffs argue, in other words, that the Reauthorization Act, by incorporating the very regulatory provision found to be invalid by the court in Fort Peck I, leaves no doubt that 24 C.F.R. § 1000.318 was inconsistent with the congressional mandate under NA-HASDA 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 49:11, at 145 (7th ed. 2008) (providing that “[w]here a former statute is amended, or a doubtful meaning clarified by subsequent legislation, such amendment or subsequent legislation is strong evidence of the legislative intent of the first statute.”).
Plaintiffs’ argument on this point begins with the circumstances surrounding the passage of the 2008 amendments. According to plaintiffs, the proposed amendments were developed by HUD at the request of Congress in response to the district court’s decision in Fort Peck I. See Housing Issues in Indian Country: Hearing Before the S. Comm, on Indian Affairs, 110th Cong., at 69-70 (2007). Plaintiffs note that on two separate occasions, HUD representatives, in describing the effect of the proposed amendments, testified before Congress that the amendments would “change the way that housing units ... are counted for formula purposes” by ceasing to include housing units in the FCAS component in the year after they are conveyed, demolished, or disposed of. Statement of Orlando J. Cabrera, Ass’t See’y for Pub. & Indian Housing, Hearing Before the H. Comm, on Financial Services Subcomm. on Housing & Community Opportunity, at 3 (June 6, 2007); Statement of Rodger J. Boyd, Deputy Ass’t Sec’y for Native American Programs, Hearing Before S. Comm, on Indian Affairs, at 3 (July 9, 2007). Because Congress went on to enact the amendments substantially as proposed by HUD, plaintiffs maintain that the court should accept the agency’s representation— that the amendment would “change the way that housing units ... are counted for formula purposes” — as reflecting congressional intent. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 48. 10, at 583 (7th ed. 2010) (providing that “if the legislature adopts an amendment urged by a witness [at a committee hearing], it may be assumed that the intent voiced was adopted by the legislature”). Plaintiffs argue, in other words, that by amending the statute as HUD proposed, Congress endorsed HUD’s characterization of the amendment as a change in law.
Indeed, plaintiffs maintain that a side-by-side comparison of the pre- and post-amendment versions of Section 4152(b)(1) makes clear that the Reauthorization Act constituted a substantive change in the way that housing units are to be counted under the FCAS component of the allocation formula. Plaintiffs point out that under the pre-amendment version of the statute, Congress defined the first need factor as “[t]he number of low-income housing dwelling units owned or operated at the time pursuant to a contract between an Indian housing authority for the tribe and the Secretary.” Section 4152(b)(1). Under the Reauthorization Act, by contrast, Congress defined the first need factor as follows:
(i) the recipient ceases to possess the legal right to own, operate, or maintain the unit; or
(ii) the unit is lost to the recipient by conveyance, demolition, or other means.
25 U.S.C. § 4152(b)(1)(A). Plaintiffs argue that if the original version of Section 4152(b)(1) did not in fact mandate the inclusion of the 1997 units in the allocation formula, there would have been no need for Congress to amend that section at all. Plaintiffs point out that courts have traditionally held that when Congress acts to amend a statute, the presumption is that Congress “intends its amendment to have real and substantial effect.” Pierce Cnty., Wash. v. Guillen,
This presumption against such “useless acts” by Congress is particularly applicable, plaintiffs further contend, as it pertains to the Reauthorization Act’s civil action provision. 25 U.S.C. § 4152(b)(1)(E) (specifying that the amendments to Section 4152(b)(1) shall not apply to civil actions filed within 45 days of the Reauthorization Act’s effective date).
Had the intent of Congress been only to state more clearly what the statute had meant from its original enactment, there would have been no point in limiting the effect of the restatement to the period following [the date of the amendment’s enactment]. We think such a limitation shows that it did realize that the amendment enlarged the scope of the original enactment and made sure that taxpayers would understand that it was not to be applied retroactively. It is reasonable to believe that Congress was unwilling to impose harsh burdens upon taxpayers based only upon doubtful interpretation of so drastic a statute and preferred to make its meaning clear before it should have such an effect.
Accord, Teledyne, Inc. v. United States,
B.
Defendant, for its part, does not dispute that Congress’s intent is clear from the plain statutory language of NAHASDA. Yet, while plaintiffs interpret that language as requiring the 1997 housing units to be included as a mandatory term in the allocation formula, defendant reads the statute instead as requiring HUD to fund all tribal housing projects according to their relative need. In defendant’s view, the removal of housing units from the FCAS component under 24 C.F.R. § 1000.318 is consistent with that intent because a tribe’s need is reduced when housing units pass out of its ownership or control.
Defendant’s argument begins with the text of the pre-amendment Section 4152(b) itself. Defendant points out that this section, by its terms, identifies the “[fjaetors for determination of need” and goes on to identify three allocation formula factors that the statute characterizes as “reflecting] the need of the Indian tribes and the Indian areas of the tribes for assistance for affordablе housing activities.” Defendant thus argues that by definition the enumerated factors — (1) the number of housing units under pre-NAHAS-DA contracts with HUD; (2) the extent of poverty and the number of Indians in the relevant area; and (3) any additional “objectively measurable conditions” specified by the Secretary and the tribes — each speaks to some aspect of tribal need.
In defendant’s view, a tribe’s current need for affordable housing is primarily reflected in the second factor — “[t]he extent of poverty and economic distress and the number of Indian families within Indian areas of the tribe.” 25 U.S.C. § 4152(b)(2). Defendant explains, however, that this factor did not provide the full measure of a tribe’s total need in 1997 because it failed to account for the long-term agreements between the tribes and HUD that were entered into under NA-HASDA’s predecessor statute to fund capital investments and improvements. Because NAHASDA terminated those agreements, defendant maintains that the continued funding of such investments constituted one aspect of a tribe’s need, at least until the capital investments at issue were fully funded and/or the units that were the subject of the agrеements had been conveyed. That aspect of a tribe’s need, defendant asserts, was reflected in the first factor — “[t]he number of low-income housing dwelling units owned or operated at the time pursuant to a contract between an Indian housing authority for the tribe and the Secretary.” 25 U.S.C. § 4152(b)(1).
Given this statutory framework, defendant maintains that 24 C.F.R. § 1000.318 is entirely in keeping with the intent of Congress. First, defendant contends that while the number of housing units described in Section 4152(b)(1) reflected the need of Indian tribes for assistance for affordable housing activities in 1997, with each passing year the correlation between that number and tribal need would decrease as housing units were removed from the tribe’s inventory. Defendant thus argues that in order for the allocation formula to achieve the overarching intent of the statute — that the allocations be based on the tribes’ need — the first factor must necessarily be adjusted to reflect changes occurring over time. See, e.g., Fort Peck II,
In addition, defendant refutes plaintiffs’ contention that the phrase “shall be based on ... [t]he number” must be construed as including the number of 1997 housing units in the allocation formula without adjustment. Rather, defendant maintains that the allocation formula is “based on” the first factor if the formula uses the number of units under contract in 1997 as the starting point for the calculation, then adjusts that number based on the second and third factors. McDaniel v. Chevron Corp.,
Nor does defendant accept plaintiffs’ contention that the 2008 amendments to NA-HASDA represent a change in law and therefore confirm the invalidity of 24 C.F.R. § 1000.318 under the statute as originally written. Defendant maintains instead that the Reauthorization Act merely clarified the statute, an assertion it supports with reference to a 2007 Senate committee report which provided that the proposed amendment “clarifies that conveyed units or other units no longer owned or operated by a grant recipient as affordable housing, including those units the recipient no longer has the legal right to. own, operate or maintain, may not be counted in the funding formula.” S.Rep. No. 110-23 8, at 9 (2007) (emphasis added). In addition, defendant points out that Congress amended NAHASDA several times prior to 2008 without altering 24 C.F.R. § 1000.318,
C.
In evaluating the correctness of the parties’ respective positions, we turn to the Supreme Court’s decision in Chevron, USA, Inc. v. Natural Res. Def. Council, Inc.,
In applying the first prong of Chevron, we are unable to conclude that Congress has directly spoken to the precise question at issue, namely, whether housing units owned or operated by the tribes in 1997 must be included in the allocation formula without adjustment. Although Congress identified such housing units as one of three factors on which the allocation formula was to be based, the statute is silent as to how that factor must be incorporated into the formula, or how the relative factors are to be weighed. Indeed, the statute conferred on HUD, working in concert with the tribes, full authority to promulgate regulations, 25 U.S.C. § 4152(a), and permitted thе agency to base the allocation formula on any “objectively measurable conditions as the Secretary and the Indian tribes may specify,” 25 U.S.C. § 4152(b)(3). Such broad discretion, we believe, indicates Congress’s intent to leave such matters up to HUD.
Nor do we believe that the plain language of the statute supports plaintiffs’ position. Contrary to plaintiffs’ assertion, we do not read the phrase “shall be based on” coupled with a definitive number as necessarily requiring that the number appear unchanged in the final allocation. Although such an interpretation is a possible reading of the statute (as evidenced by the district court’s decision in Fort Peck I), it is not an inevitable one. We base our conclusion on several factors.
First, numerous courts, in performing Chevron inquiries similar to ours, have found ambiguity in the phrase “based on.” See, e.g., Sierra Club,
In addition, we believe that the statutory requirements are satisfied if the resulting formula takes into account each of the three factors in its evaluation of need. The formula is “based on” the three factors, in other words, if the factors are considered in turn, with each factor permitted to balance or offset the others. Indeed, we think the use of the word “factor” itself indicates that Congress simply intended the 1997 housing units to contribute to the formula in some way. See, e.g., Black’s Law Dictionary 630 (8th ed. 2004) (defining “factor” as an “agent or cause that contributes to a particular result”); Webster’s Third New Int’l Dictionary 813 (1993) (defining “factor” as “something (as an element, circumstance, or influence) that contributes to the production of a result”). As the Tenth Circuit observеd in Fort Peck II, “NAHASDA clearly required interplay between all three factors in the determination of a Tribal Housing Entity’s need, including those HUD identified in the rulemaking process” and “Section 1000.318’s downward adjustment [is] an example of this interplay.”
In reaching this conclusion, we think it is clear that the funding of units no longer owned or operated by a tribe cannot reasonably be construed as related to the tribe’s need.
Nor do we believe that the 2008 amendments to NAHASDA undermine our conclusion. We read the amendment to Section 4152(b)(1) as essentially adopting the definition of FCAS set forth in Section 1000.318 and, as such, we construe that provision as serving to clarify law made less certain by the district court’s decision in Fort Peck I. 1A Norman J. Singer, Sutherland Statutory Construction § 22:29, at 264 (5th ed. 1993) (an “amended statute should be interpreted in light of the court decisions that may have prompted the amendment.”). We thus believe that Congress resolved in
In reaching this conclusion, we were not persuaded by plaintiffs’ characterization of the testimony given by various HUD representatives as confirming that the proposed amendments to the allocation formula represented a change in law. As defendant points out, the statements that the amendments would “change the way that housing units ... are counted for formula purposes,” were made to Congress in 2007, i.e., after the district court’s decision in Fort Peck I (holding that HUD could not reduce the number of housing units eligible for inclusion in the allocation formula below the level that the tribe had under contract in 1997), but before the Tenth Circuit’s ruling in Fort Peck II (reversing that decision). See, e.g., Statement of Cabrera, at 3; Statement of Boyd, at 3. Defendant thus explains that the characterization of the proposed amendment as a “change” in law referred to a reversal of the precedent established by Fort Peck I, and not, as plaintiffs urge, to a departure from the original statute.
Plaintiffs make a more compelling ease with respect to the Reauthorization Act’s civil action provision, 25 U.S.C. § 4152(b)(1)(E) (allowing tribes to file suit under the pre-amendment allocation formula provision), but here, too, we must ultimately reject their position. In plaintiffs’ view, Congress, by enacting the civil action provision, signaled its acknowledgment that the formula allocation provision had been materially changed by the amendment and, by implication, that 24 C.F.R. § 1000.318 therefore violated the statute as originally written. If plaintiffs were correct that the 2008 amendments substantively altered the original statute’s treatment of the funding formula, however, there would be no need for a civil action provision: an amendment that substantively changes the law would not in any event be given retroactive application. Landgraf v. USI Film Products,
Even, however, were we to put aside the law’s disapproval of retroactive legislation and accept at face value plaintiffs’ contention that the civil action provision reflects Congress’s understanding that the amended statute represented a change in law, the argument would gain plaintiffs no ground. The difficulty we have with the argument is that it endeavors to establish the meaning of an earlier law by invoking the views of a later Congress — an approach to legislative interpretation that the Supreme Court has in the past described as a “hazardous” undertaking. Waterman S.S. Corp. v. United States,
Plaintiffs argue, however, that even if HUD’s interpretation of the statute is found to be reasonable, the court should nevertheless defer to plaintiffs’ interpretation based on the canon of statutory construction requiring courts to construe statutes liberally in favor of the Indians and requiring “ambiguous provisions [to be] interpreted to [the tribe’s] benefit.” Montana v. Blackfeet Tribe of Indians,
In Salazar, a tribe sued to recover contract support costs to which they claimed entitlement under contracts with HUD. Id. at 1056. The agency defended against the claim in part on the ground that the contracts contained a limitation that the reimbursement of support costs was “subject to the availability of appropriations” and Congress had not appropriated sufficient funds to cover all the contract support costs of the affected tribes. Id. at 1063. The court rejected the agency’s argument and found that the tribe was entitled to its full contract support costs — an amount, the court noted, that was to be paid out of the Judgment Fund. Id. at 1076-77.
Thus in Salazar, although the insufficient appropriation by Congress to cover the contract support costs of all the tribes could be described as “a zero-sum game” with respect to the original allocation, id. at 1065, the court’s application of the canon favoring Native Americans resulted in the payment of the plaintiff tribe’s contract support costs from the Judgment Fund, without a corresponding reduction in the аmount any other tribe had received or without adversely affecting any other tribe’s entitlement to its entire contract support costs. Following the Tenth Circuit’s ruling, in other words, the tribes’ interests could no longer be seen as being in conflict and the resolution of their claims no longer a zero-sum game. Here, by contrast, a ruling in plaintiffs’ favor theoreti
CONCLUSION
For the reasons set forth above, plaintiffs’ motion for partial summary judgment as it relates to the alleged invalidity of 24 C.F.R. § 1000.318 is denied and defendant’s cross-motion is granted.
Notes
. In the initial round of litigation in this case, the court issued an opinion on August 4, 2011, holding that NAHASDA is a money-mandating statute whose implementing regulations may be challenged by plaintiffs in this court, and that the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(A), does not prevent the court from awarding the relief sought. Lummi Tribe of the Lummi Reservation v. United States,
. Plaintiffs’ motion for partial summary judgment contains an additional issue for decision: whether HUD acted unlawfully by (1) excluding units from the allocation formula that plaintiffs still own or operate; (2) excluding units that were demolished and replaced despite the fact that the tribes continue to need funding to maintain the replaced units; and (3) reducing funding for units that were converted from homeowner-ship to low rent after a certain date. Such actions, plaintiffs maintain, violate NAHASDA’s
. We limit our discussion to those facts relevant to the issue currently before the court; a more comprehensive recitation of the facts can be found in our earlier decisions. Lummi I,
. 25 U.S.C. § 4152(a) directed as follows:
The Secretary shall, by regulations issued not later than the expiration of the 12-month period beginning on October 26, 1996, in the manner provided under section 4116 of this title [referring to the Negotiated Rulemaking Act, 5 U.S.C. §§ 561-570] establish a formula to provide for allocating amounts availаble for a fiscal year for block grants under this chapter among Indian tribes in accordance with the requirements of this section.
. Pursuant to 24 C.F.R. § 1000.324, the need component consisted of seven criteria, including the number of households without a kitchen or plumbing or with an annual income of less than a certain amount.
. As we noted in Lummi II,
. Although Fort Peck Housing Authority was among the original plaintiffs in the present action, we dismissed their claim in Lummi I on the ground that 28 U.S.C. § 1500 bars this court from exercising jurisdiction over an action that is pending in the district court and is based on substantially the same operative facts as the claim before this court. Lummi I,
. The parties each take the position in their briefs that the phrase "at the time” in Section 4152(b)(1) refers to September 30, 1997, immediately prior to the October 1, 1997, effective date of NAHASDA. Although it is clear that HUD, like the partiеs, equated the phrase "at the time” with September 30, 1997, in promulgating the regulations (see, e.g., 24 C.F.R. § 1000.312, defining current assisted stock as all housing units "under management as of September 30, 1997”; 24 C.F.R. § 1000.322, providing that units “not owned or operated at the time (September 30, 1997)” are not included in FCAS), it is not clear to the court that this interpretation is the correct one. As defendant acknowledged at oral argument, an equally plausible, if not preferable, interpretation of the phrase “at the time” could be that the formula shall “be based on ... units owned or operated at the time” the formula is applied, i.e., on an annual basis. Under such an interpretation, a yearly adjustment in the FCAS calculation to account for housing units no longer owned or operated by a tribe would clearly comport with Section 4152(b)(1). As the parties have neither taken this position nor briefed the issue, however, the court declines to pursue it further here.
. The civil action provision provides in full as follows:
Subparagraphs (A) through (D) [the statutory changes to the formula allocation provision] shall not apply to any claim arising from a formula current assisted stock calculation or count involving an Indian housing block grant allocation for any fiscal year through fiscal year 2008, if a civil action relating to the claim is filed by not later than 45 days after October 14, 2008.
25 U.S.C. § 4152(b)(1)(E).
. See also Statement of Cabrera, at 5 (describing the need-based formula funding allocations as being predicated on two factors: "need, which is the extent of poverty and economic distress and the number of Indian families within the Indian areas of the tribe; and Formula Current Assisted Stock (FCAS), which is the number of dwelling units that are currently owned or operated by the grant recipient that were developed under an Annual Contributions Contract authorized by the 1937 Act”).
. See, e.g., Omnibus Indian Advancement Act, Pub.L. No. 106-568, § 1003, 114 Stat. 2868 (2000); Native American Housing Assistance and Self-Determination Reauthorization Act of 2002, Pub.L. No. 107-292, 116 Stat.2053 (2002); Native American Housing Enhancement Act of 2005, Pub.L. No. 109-136, 119 Stat. 2643 (2005).
. The cases plaintiffs cite for this proposition— Nuclear Energy,
In both Nuclear Energy and Daley, in other words, the courts held that language comparable to ours — "based upon and consistent with” — was ambiguous under Chevron’s first step. Indeed, both courts went on to hold that the challenged agency actions were unreasonable under Chevron’s second step because the agency’s action in each case "so completely diverges from any realistic meaning of the [statute] that it cannot survive scrutiny under Chevron Step Two.” Nuclear Energy,
Simply put, then, Nuclear Energy and Daley do not stand for the proposition that the identification of a particular number in a statute is an unambiguous term that may not be altered by regulation. To the contrary, the Nuclear Energy court went so far as to suggest that an agency’s action would be found to be reasonable where the agency had taken the statutory recommendations into account and then tailored a standard that accommodated the agency’s policy concerns. Nuclear Energy,
. Nor do we accept plaintiffs’ argument that the approach endorsed by defendant and ultimately adopted by the Tenth Circuit — construing FCAS reductions as falling under the "other objectively measurable conditions” language of Section 4152(b)(3), Fort Peck II,
As an initial matter, we do not necessarily see adjustments to FCAS as falling under Section 4152(b)(3). Rather, as discussed below, we believe those adjustments are equally permissible under Section 4152(b)(1) itself. But even if we were to characterize Section 1000.318’s adjustments as arising under the "other objectively measurable conditions” factor, we do not believe the cases on which plaintiffs rely support their position. In RadLAX, for instance, the Supreme Court was called upon to reconcile two subsections of a statute — a general subsection that appeared to permit an action, with a more specific section prescribing it. RadLAX,
Similarly, in Woodall,
. Plaintiffs make the case that the permanent inclusion of the 1997 housing units in the allocation formula indeed reflects need by providing a minimum level of funding to account for expenditures not accounted for at the time by the statute (e.g., housing units that had been demolished but replaced). We cannot, however, accept plaintiffs' contention that Congress intended the 1997 housing units to be incorporated into the allocation formulа, as a funding floor, without adjustment. As defendant notes, Congress did indeed establish a funding floor to prevent a tribe’s allocation from falling too low, but it did so elsewhere in the statute. See 25 U.S.C. § 4152(d). This statutory minimum is detailed and comprehensive and, indeed, reflects both the amount of each annual NAHASDA appropriation and the number of units each tribe owned or operated pursuant to a pre-NAHASDA contract.
. This conclusion is especially true since the funds paid under the FCAS component of the formula were not then available for distribution under the need component. 24 C.F.R. § 1000.324.
. Plaintiffs maintain that the fact that Fort Peck I had already been decided is irrelevant, as the court had explicitly limited its holding to the Fort Peck Housing Authority and the decision thus had no wider application. Fort Peck I,
. There is nothing in the record to indicate why Congress, although it characterized the 2008 amendments as a "clarification" of already existing law, S.Rep. No. 110-23 8, at 9, nevertheless authorized civil actions to go forward without reference to that clarification. A possible explanation — suggested by defendant at oral argument — is that Congress did not want to interfere with the numerous cases brought under the prior version of the statute that were already pending before the courts and wanted to give all the tribes an opportunity to be heard in a consistent manner. Callahan, 143 F.2dat216 (recognizing that Congress may have been unwilling "to impose harsh burdens ... based only upon doubtful interpretation of so drastic a statute and preferred to make its meaning clear before it should have such an effect”). While defendant’s explanation strikes us as being as good as any, to endorse it would be pure speculation. In any event, it is clear that Congress, whatever its motivation in enacting the civil action provision, allowed HUD's interpretation of the statute to prevail going forward, but left open the possibility of the tribes’ interpretation prevailing in litigation.