MICHIGAN GAMBLING OPPOSITION, a Michigan Non-Profit Corporation, Appellant v. Dirk KEMPTHORNE, in his Official Capacity as Secretary of the United States Department of the Interior, et al., Appellees.
No. 07-5092.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 19, 2007. Decided April 29, 2008.
IV
In conclusion, the district court erred insofar as it dismissed any of the claims because Bestseller failed to raise them before the TTAB. Considering the pleadings on the merits, Bestseller stated two grounds for opposing Fame‘s application: likelihood of confusion with respect to the mark already used by Bestseller and lack of a bona fide intent to use the mark. With respect to the former, Bestseller adequately alleged priority only in the sense of its marketing of Jack & Jones clothing in the United States. The district court was correct to dismiss the third claim for common-law fraudulent misrepresentation, because Bestseller did not claim to have relied on Fame‘s supposedly false statement.
For these reasons, the judgment of the district court is affirmed in part and reversed in part.
So ordered.
Aaron P. Avila, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief was Elizabeth A. Peterson, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Nicholas C. Yost, Seth P. Waxman, Edward C. DuMont, Demian S. Ahn, and Conly J. Schulte were on the brief for appellee Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians.
Before: GINSBURG, ROGERS and BROWN, Circuit Judges.
Opinion dissenting in part by Circuit Judge BROWN.
PER CURIAM:
In 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (“the Tribe“), which plans to construct and operate a Class III casino. This decision followed federal recognition of the Tribe in 1998. A non-profit Michigan membership organization—Michigan Gambling Opposition (“MichGO“)—sued the Secretary of the Interior, the Bureau of Indian Affairs (“BIA“) and the National Indian Gaming Commission (“NIGC“) (collectively the “DOI“) alleging that the DOI‘s approval of the proposed casino violated the National Environmental Protection Act (“NEPA“),
I.
The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians has lived in Michigan continuously since it emerged as a recognizable unit under Chief Match-E-Be-Nash-She-Wish at the turn of the nineteenth century. At that time, the Tribe lived near Kalamazoo, Michigan, along the Kalamazoo River. The Tribe was party to several treaties with the United States, and it was adversely affected by several others, with the result that it lost all of its lands near Kalamazoo by the middle of the nineteenth century. It avoided being moved to reservations further west by taking asylum with a church mission in central Michigan, near the town of Bradley. Around the end of the nineteenth century, land in the church mission was distributed to individual members of the Tribe. This distribution was in accord, although not directly part of, broader federal policies of the time, which emphasized breaking up tribal holdings and distributing parcels of land to individuals. See Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1, 10-12 (1995). Most of the land distributed to individual members of the Tribe was lost because of failure to pay property taxes, as was the case for large portions of the land distributed under broader federal policies, id. at 12, but members of the Tribe continued to reside around the former church mission.
The Tribe, now numbering 277 members, secured federal acknowledgment of its existence in 1998, under the BIA‘s formal recognition procedure. The Tribe and BIA plan for BIA to acquire land as a reservation for the Tribe, using the Secretary of the Interior‘s authority under section 5 of the IRA to take land into trust for Indians,
As BIA studied the Tribe‘s proposal, it prepared an environmental assessment (“EA“) under the auspices of NEPA,
Applying the DOT classification system, a study commissioned as part of the EA identified two local intersections where increased casino-related traffic would result in Level of Service F at certain times. These intersections sit at the junction of US-131, a limited access highway that runs north and south along the west edge of the Bradley property, and Michigan-179 (129th Avenue), a two-lane road that runs east and west along the south edge of the Bradley property. The study predicted that the casino would cause heavy traffic at the right turn from the northbound exit onto 129th Avenue (eastbound) and at the left turn from the southbound exit onto 129th Avenue (eastbound). Resulting delays would be particularly severe during afternoon rush hours.
To mitigate the traffic impact of the casino, the EA recommended construction of a new, dedicated right-turn lane for the northbound intersection and adding a four-way stop to the southbound intersection. It acknowledged the southbound left turn would still operate during peak periods at Level of Service F, so that a traffic light might be necessary. Although MDOT apparently will not commit to a traffic light based on predictions of traffic volume, it apparently would approve a dedicated right turn lane and a four-way stop.1
Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (“FONSI“) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.
MichGO filed this lawsuit in June 2005, advancing four claims. The first alleged that the preparation of a FONSI rather than an environmental impact statement (“EIS“) violated NEPA. The second and
II.
NEPA requires every agency proposing a “major Federal action” to prepare a statement of its environmental impact if the action will “significantly affect[] the quality of the human environment.”
A.
MichGO contends that the Tribe‘s casino is large and controversial, and that the DOI is thus required by law to prepare an EIS. To support this contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,”2 distributed to regional directors by the BIA, which provides that “[p]roposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS.” MichGO maintains that
The premise underlying MichGO‘s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. The CEQ does require each agency to “[d]etermine under its procedures” whether a project is of a type that normally requires an EIS. Id.
Because we are unpersuaded that the Checklist is binding on the DOI, we do not reach MichGO‘s contention that the casino project at issue is “large” and “controversial” within the meaning of the Checklist.
B.
Alternatively, MichGO contends that it was arbitrary or capricious for the DOI to issue a FONSI without having prepared an EIS because two intersections would continue to experience Level of Service F at certain times, even after mitigation measures.4
A court reviews an agency‘s FONSI or EIS under the Administrative Procedure Act,
(1) has accurately identified the relevant environmental concern, (2) has taken a hard look at the problem in preparing its EA, (3) is able to make a convincing case for its finding of no significant impact, and (4) has shown that even if there is an impact of true significance, an EIS is unnecessary because changes or safeguards in the project sufficiently reduce the impact to a minimum.
TOMAC v. Norton, 433 F.3d 852, 861 (D.C.Cir.2006) (internal quotations omitted).
The EA found that at least one intersection would experience Level of Service F at certain times even after mitigation measures. However, contrary to the assumption underlying MichGO‘s contentions, the EA‘s definition of acceptable traffic performance was not based solely on the level-of-service classification. Rather, the EA noted that local authorities had no standards for traffic intensity; thus the EA deployed two separate indicators as proof of acceptable traffic conditions: either Level of Service C or above or approval by relevant local authorities. MDOT, the agency with jurisdiction over these roads, found the traffic levels projected after the DOI‘s mitigation measures
III.
MichGO contends that section 5 of the IRA is an unconstitutional delegation of legislative power because, apart from the DOI‘s internal regulations, which cannot fill the void, it is “completely devoid of intelligible standards to guide or limit the Secretary‘s discretion.” Appellant‘s Br. at 35. We are not convinced. An agency cannot “cure an unconstitutionally standardless delegation of power by declining to exercise some of that power,” Whitman, 531 U.S. at 473, as the district court incorrectly suggested, MichGO, 477 F.Supp.2d at 21-22. But giving due consideration to the purpose and factual background of the IRA and section 5‘s statutory context, as the Supreme Court instructs, see Am. Power & Light Co., 329 U.S. at 104, and having due regard that “Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion,” Yakus v. United States, 321 U.S. 414, 425-26, 64 S.Ct. 660, 88 L.Ed. 834 (1944), we conclude the statute provides an intelligible principle.5
Section 5 of the IRA authorizes the Secretary of the Interior to obtain land “for Indians.”6
Our review of the purpose and structure of the IRA confirms that, as our sister courts have held, and contrary to the view of our dissenting colleague, the statute provides an intelligible principle rather than a tautology when it authorizes the Secretary to acquire land “for the purpose of providing land for Indians“: the Secretary is to exercise his powers in order to further economic development and self-governance among the Tribes. Cf. Dissenting Op. at 37-38. The Supreme Court has noted that “[t]he intent and purpose of the [IRA] was to rehabilitate the Indian‘s economic life and to give him a chance to develop the initiative destroyed by a century of oppression.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (internal quotations omitted). This accords with the IRA‘s stated purpose of “conserv[ing] and develop[ing] Indian lands and resources; ... extend[ing] to Indians the right to form business and other organizations; ... establish[ing] a credit system for Indians; ... grant[ing] certain rights of home rule to Indians; ... and [effectuating] other purposes.” Pub.L. No. 383, 48 Stat. 984, 984 (1934).
In addition to section 5, the IRA includes numerous other provisions addressing land use and economic development; among other things, these extend tribal trusts indefinitely,
The standards revealed by examining the purpose and structure of the IRA are confirmed by reviewing the broader factual context of the statute. The IRA was enacted against a backdrop of great concern over economic and social challenges facing American Indians, and especially over the consequences of the federal government‘s allotment policy, which had resulted in many tribal lands being distributed to individuals who then lost control of them, often because of fraud or inability to pay taxes. Royster, 27 ARIZ. ST. L.J. at 12. By 1928, a report commissioned by the Secretary of the Interior found that the allotment policy had “destructive effects ... on the economic, social, cultural and physical well-being of the tribes.” Id. at 16. As both the Supreme Court, Mescalero Apache Tribe, 411 U.S. at 152, and circuit courts, South Dakota, 423 F.3d at 798; Carcieri, 497 F.3d at 42, have acknowledged, the legislative history of the IRA also underscores its purpose of addressing economic and social challenges facing American Indians by promoting economic development. See H.R.Rep. No. 73-1804, at 6 (1934); S.Rep. No. 73-1080, at 1-2 (1934).7
There is nothing to suggest that section 5 is removed from the overall IRA purpose of advancing economic development among American Indians. While certain sections of the IRA include more specific language than section 5, see, e.g.,
Finally, we note that the Supreme Court has observed that “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at 475. The scope of authority delegated to the Secretary under section 5—to decide whether to grant status as “Indian Country” to specific plots of land owned by Indians or that is acquired for them—is not so broad as to require limiting principles more specific than pursuing Indian economic development. Our conclusion is underscored by examining historical and contemporary context. The Executive has historically enjoyed extensive authority in conducting relations with American Indians, which has included negotiating treaties with Indian tribes and granting reservations to them by executive order. See, e.g., HANDBOOK, supra, §§ 1.03; 15.04[4]; cf. Zemel v. Rusk, 381 U.S. 1, 17-18, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). “[E]ven in sweeping regulatory schemes ... statutes [are not required to] provide a determinate criterion” delimiting precisely how much of a good or harm an agency must address. Whitman, 531 U.S. at 475 (internal quotations omitted). Our dissenting colleague asserts that the Secretary‘s powers under section 5 are vast, Dissenting Op. at 38-40, pointing to the many significant consequences that flow from the Secretary‘s decision to accept land in trust for the Indians. But these consequences follow from section 5 and from other statutes, not from the decision of the Secretary to acquire land in trust, for section 5 gives the Secretary no power to regulate state taxing authority or anything else. Our dissenting colleague further faults Congress for not providing a narrower standard, but Congress must provide only an “intelligible” standard, Whitman, 531 U.S. at 474-75. That standard need not be utterly unambiguous, for it is settled that Congress may delegate interstitial lawmaking authority to executive agencies. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).8
For these reasons, we join the First, Eighth and Tenth Circuits, Carcieri, 497 F.3d at 43; South Dakota, 423 F.3d at 799; Roberts, 185 F.3d at 1137, in upholding section 5 of the IRA. In cases entertaining (and rejecting) challenges asserting an unconstitutional delegation, the Supreme Court has “giv[en] narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional,” Mistretta v. United States, 488 U.S. 361, 373 n. 7, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), and has done so by looking at clauses that neighbor the delegation of power, e.g., Am. Power & Light Co., 329 U.S. at 104-05, as well as the statute‘s overriding purpose, e.g., N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25, 53 S.Ct. 45, 77 L.Ed. 138 (1932). Congress may legislate its goals explicitly, see, e.g., Mistretta, 488 U.S. at 374, but it need not do so. We thus hold, relying upon the text, structure, and purpose of the IRA, as well as the context of its enactment, that section 5 contains an intelligible principle and that it is not an unconstitutional delegation of legislative authority.
Accordingly, we affirm the grant of summary judgment.
BROWN, Circuit Judge, dissenting in part:
I join Parts I and II of the court‘s opinion, but I cannot agree § 5 of the IRA is constitutional. Consequently, I dissent from Part III.
Like other courts that have rejected nondelegation challenges to § 5, Carcieri v. Kempthorne, 497 F.3d 15, 41-43 (1st Cir. 2007) (en banc); South Dakota v. U.S. Dep‘t of the Interior, 423 F.3d 790, 799 (8th Cir. 2005); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir.1999), the majority nominally performs a nondelegation analysis but actually strips the doctrine of any meaning. It conjures standards and limits from thin air to construct a supposed intelligible principle for the § 5 delegation. Although I agree the nondelegation principle is extremely accommodating, the majority‘s willingness to imagine bounds on delegated authority goes so far as to render the principle nugatory. Analyzing the statute using ordinary tools of statutory construction, as the Supreme Court has always done in nondelegation cases, I am forced to conclude § 5 is unconstitutional.
The nondelegation doctrine prohibits Congress from making unbridled delegations of authority. The rule is not only a fundamental aspect of the separation of powers; it is an essential feature of democratic government. “[T]he delegation doctrine[] has developed to prevent Congress from forsaking its duties.” Loving v. United States, 517 U.S. 748, 758, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). “[T]he constitutional question is whether the statute has delegated legislative power to the agency... [The Constitution‘s] text permits no delegation of those powers.” Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001); see also Mistretta v. United States, 488 U.S. 361, 371, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (“The nondelegation doctrine is rooted in the principle of separation of powers....“); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 72 L.Ed. 624 (1928) (“[I]t is a breach of the National fundamental law if Congress gives up its legislative power....“). The nondelegation principle is integral to any notion of democratic accountability.
Thus, when Congress directs an agency to exercise its judgment, it must guide that judgment in some way. I agree with the majority that the nondelegation principle is not an onerous requirement. Nevertheless, Congress must at least “clearly delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” Mistretta, 488 U.S. at 372-73; Am. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946). The central question is whether there are “limits on [an agency‘s] discretion.” Whitman, 531 U.S. at 473.
Like the majority, I take Whitman to have identified two ways in which Congress may provide the necessary bounds on a delegation: standards to guide an agency‘s judgment or, in their absence, stringent limits on the scope of the delegated authority. Standards to guide an agency are the ordinary way to limit its discretion. In the leading case, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 522-23, 542, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), the Supreme Court invalidated § 3 of the National Industrial Recovery Act, which allowed trade associations to develop codes of fair competition the President could adopt as law, with conditions as he thought “necessary.” This statute was flawed because it “conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.‘” Whitman, 531 U.S. at 474. Alternatively, “Congress need not provide any direction” if the “scope of the power congressionally conferred” is sufficiently small. Id. at 475,
Thus, the “intelligible principle” required of a constitutional delegation is fairly minimal: a statute will fail only if it gives an agency too broad an authority with no standards to guide the agency‘s decisions. Section 5 is a rare example of a standardless delegation, allowing the Secretary of the Interior to take land in trust for whichever Indians he chooses, for whatever reasons. This power is far too broad in scope for Congress to have delegated without any standards.
II
A
First, § 5 lacks standards to guide the Secretary in the exercise of his authority. Such standards would not have to provide a “determinate criterion” to govern agency decisions, as long as they provide “substantial guidance.” Whitman, 531 U.S. at 475. Standards need only provide some criteria, some guidelines, or some direction, so that when an agency exercises its judgment, the agency and the courts have some “intelligible principle” by which to gauge whether the agency‘s decision will further the purpose of the delegation. For example, to guide the Sentencing Commission, “Congress directed it to consider seven factors,” listed in the statute. Mistretta, 488 U.S. at 375. In Whitman, the Clean Air Act required the EPA “to set air quality standards at the level that is ‘requisite’ ... to protect the public health with an adequate margin of safety.” Whitman, 531 U.S. at 475-76.
“Whether [a] statute delegates legislative power is a question for the courts,” Whitman, 531 U.S. at 473, and the purpose of an intelligible principle is to make sure it is not “impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.” Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Congress must provide legal standards because “[p]rivate rights are protected by access to the courts to test the application of the policy in the light of” the standards. Am. Power & Light Co., 329 U.S. at 105. Thus, since Congress must lay down these standards by “legislative act,” Mistretta, 488 U.S. at 372, we should seek standards for a delegation using the ordinary tools of statutory construction.
The kinds of tools the majority uses are occasionally appropriate aids for ascertaining the meaning of ambiguous statutory text. On the other hand, when a standard is not ambiguous, but simply absent, we may not supply one by ourselves. See Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); Gen. Elec. Co. v. EPA, 360 F.3d 188, 191 (D.C.Cir.2004). The majority not only supplies an absent standard, it actually invents the standard, imbuing § 5 with a spirit of “economic development” that somehow emanates from the context of the IRA.
In many nondelegation cases, Congress at least hints at a standard by directing an agency to exercise its authority “in the public interest“—words indicating some congressionally imposed limit, even if the vagueness of the phrase makes a court work to interpret it. Here, by contrast, the Secretary “is authorized” to acquire land for Indians “in his discretion.” Rather than an ambiguous standard that requires interpretation, § 5 provides an obvious, unambiguous direction that the Secretary is to have complete discretion.
The majority proceeds, in the teeth of this clear text, to find, in the emanation
First, the court cites the preamble to the IRA: “to conserve and develop Indian land and resources.” Maj. Op. at 31. A policy of developing land is no more informative than a purpose of providing land, as a standard to help the Secretary decide whether to acquire a particular parcel. Nor do the preamble‘s policies of “extending the right to form business[es] ... establishing a credit system,” and the rest, give any better direction.
Second, the majority examines the structure of the IRA. Maj. Op. at 31. Among its many provisions, the IRA makes trust status permanent, §§ 2 and 4, and provides for the recovery of Indian lands that had been opened for sale, § 3. Ironically, the restoration of lands under § 3 is not automatic, but rests in the Secretary‘s hands. Unlike § 5 acquisitions, the Secretary is to restore surplus lands “if he shall find it to be in the public interest.” Ordinarily, a comparison of § 3 and § 5 would lead us, first, to conclude § 5 gives the Secretary authority to acquire new land, and, second, to construe § 5 to grant Secretary broader discretion when he acquires new land than when he restores surplus land. Instead the majority reads into § 5 an “emphasis” on recouping losses of land, an emphasis the text does not support. The majority also sees an emphasis on preventing losses of existing land, even though § 8, which declares that the IRA shall not cover “Indian holdings of allotments or homesteads upon the public domain outside” of reservations, actually limits the effect of the IRA on existing Indian land. Nor is it plausible to find a principle of “self-support” in a statute that actually installs a paternalistic scheme of government support. See § 4 (barring Indians from selling or transferring their trust land); § 12 (directing the Secretary to establish preferences for hiring Indians at the Indian Office); § 11 (appropriating money to send Indians to “vocational and trade schools” of which only a limited amount may be spent for education in “high schools and colleges“); § 6 (establishing the Secretary‘s authority over how Indians should manage their forests and how many cows they may graze on their pastures).
The majority also cites the special trust relationship the United States bears towards Indians, waving the idea of this relationship as a talisman to bless the statute rather than actually using it to interpret the text. Nor could this trust relationship be useful to interpret § 5, because in fact the government has no freestanding duty, outside of specific statutes, treaties, or executive orders, to ensure its actions do not harm Indian interests. N. Slope Borough v. Andrus, 642 F.2d 589, 611 (D.C.Cir.1980) (Secretary‘s trust obligations, if any, were coterminous with the ESA‘s requirements); see also United States v. Wilson, 881 F.2d 596, 600 (9th Cir.1989) (“Absent ... a fiduciary duty based on an authorizing document such as a statute or a regulation ... there can be no trust relationship between [a tribe] and the BIA.“). The only trust responsibility created by § 5 exists after the government acquires a parcel of land and therefore cannot guide the Secretary‘s decision whether to acquire the parcel. The majority adverts to the “unique history” of Indians in the United States, but this history gives rise only to “a moral obligation, without justiciable standards for its enforcement.” Reid P. Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 STAN. L.REV. 1213,
To summarize, the statutory language lacks any discernible boundaries. To rely on the purpose of “providing land for Indians” does nothing to cabin the Secretary‘s discretion over providing land for Indians because it is tautological. To say the purpose is to provide land for Indians in a broad effort to promote economic development (with a special emphasis on preventing land loss) is tautology on steroids. Making a different selection from the same smorgasbord, I might posit quite different principles—to provide land for landless Indians; to acquire trust lands to be used for farming; to supplement grazing and forestry lands; to provide lands in close proximity to existing reservations; to consolidate checkerboarded reservations. All of these goals would be reasonable, but none can be derived from the text of the IRA. The very fact that so many standards can be proposed merely highlights the fact that the statute itself fails to describe how the power conveyed is to be exercised. Thus, the Secretary‘s assertion of unguided power is not subject to any judicial check; nor, conversely, can he be required to act whenever he voluntarily refrains from using his discretionary power.
Even if this mood of economic self-sufficiency can be said to permeate § 5, it has never constituted a standard to guide the Secretary‘s decisions. Courts, like the BIA, have consistently interpreted the statute to mean what it says: the Secretary has unfettered discretion over which land to take in trust. See, e.g., State of Fla., Dep‘t of Bus. Regulation v. U.S. Dep‘t of the Interior, 768 F.2d 1248 (11th Cir.1985) (Secretary may waive BIA regulations to acquire land for a tribal museum, and the court may not review his decision because it is committed to agency discretion). Again and again, courts have rejected challenges to acquisitions as beyond the Secretary‘s power, concluding that the “deliberately broad and flexible grant of power” in § 5, Stevens v. Comm‘r of Internal Revenue, 452 F.2d 741, 748 (9th Cir. 1971), encompasses any possible acquisition. E.g., Chase v. McMasters, 573 F.2d 1011, 1015-16 (8th Cir. 1978) (“Congress did not limit the Secretary‘s discretion to select land for acquisition“; therefore, it was valid to accept land an Indian already owned and was giving to the United States in trust solely for the purpose of avoiding property taxes). The BIA has also regarded the Secretary‘s discretion as absolute, and its review board may only verify whether BIA considered the factors laid out in its own regulations. Eades, 17 I.B.I.A. 198, 200 (1989). Most recently, BIA has begun to deny trust applications for building casinos if it finds the casinos to lie beyond a “commutable” distance from tribes’ existing reservations. See Memorandum from Carl Artman, Ass‘t Sec‘y of the Interior, on Taking Off-Reservation Land into Trust for Gaming Purposes 1, 3 (Jan. 3, 2008) (“The decision whether to take land into trust ... is discretionary with the Secretary.“).1
In light of this history, it is a bit late for the court to claim there is in fact a standard, however loose, to which the Secretary must conform in his exercise of § 5 authority. Nor, given the weight of precedent, would I expect any court to apply the majority‘s “economic development with special emphasis” standard in reviewing an acquisition decision.
My point here is not to quibble with the majority‘s conclusion that the purpose of § 5 is to enable self-support rather than dependency or to prevent losses rather than acquire new land. Rather, the court should not be playing this game at all. Indeed, the court‘s approach differs radically from the Supreme Court‘s analytical process in nondelegation challenges. For example, in the Intermountain Rate Cases, the Court, recognizing that “we must be governed by the statute and its plain meaning,” interpreted a challenged section to incorporate a prohibition on “undue preference and discrimination” from the text of a neighboring section. 234 U.S. 476, 485-86, 488, 34 S.Ct. 986, 58 L.Ed. 1408 (1914). In American Power & Light Co., the Court relied on a statute‘s specific standards for new security issues that constituted “a veritable code of rules” to inform the SEC‘s discretion to ban “unduly or unnecessarily complicate[d]” corporate structures. 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946). I could continue with examples, but they all illustrate the same point: even in a nondelegation challenge, a court must find meaning for an ambiguous phrase in some relevant text. Here, by contrast, the majority perceives a mood of economic development, which Congress did not articulate, and the majority justifies this mood by its own assessment of Congress‘s good intentions.
In short, this court, like the First, Eighth, and Tenth Circuits before it, has constructed an intelligible principle for § 5 that consists simply of knowing why Congress enacted the provision. I do not deny that Congress wanted to alleviate the problems faced by Native Americans. Nevertheless, this alleged intelligible principle is relevant only for nondelegation challenges. The fact that the Supreme Court has also acknowledged the motivation for the IRA, Maj. Op. at 31-32, does not make that motivation any more meaningful as a standard to guide the Secretary‘s decisions on trust acquisitions.2 If it were meaningful, it would be contrary to the plain text of § 5, which gives the Secretary unfettered discretion over such decisions.
B
Given the absence of standards to govern the Secretary‘s exercise of his § 5 authority, I conclude the authority is too broad to be valid. Unquestionably, a standardless delegation is valid if it is small; “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at 475. While the majority recognizes that scope matters, it fails to acknowledge that under established nondelegation doctrine, a standardless delegation must be quite narrow. Whitman provided the canonical example of a sufficiently small delegation: EPA can “define ‘country elevators,’ which are to be exempt from new-stationary-source regula-
By contrast, the § 5 power is quite broad. The majority blandly characterizes it as the power to grant status as Indian country, but the majority ignores the far-reaching consequences of that status.3 By taking land in trust for Indians, the Secretary removes it from the jurisdiction of the State in which it sits and places it under the authority of a tribe. Alaska v. Native Vill. of Venetie Tribal Gov‘t, 522 U.S. 520, 529-31, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (noting federal land held in trust for Indians is Indian country (citing United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938))). Thus, the trust acquisition authority is a power to determine who writes the law, and thus indirectly what the law will be, for particular plots of land.
The consequences of the Indian country designation are profound. Most obviously, Indian country and its beneficial owners are “exempt from State and local taxation.”
C
Section 5 gives the Secretary unguided authority to transfer areas of land from the jurisdiction of state and local government to that of various bands of Indians. None of the foregoing implies BIA has exercised its authority wantonly. But the question is not what it has done, but what it has authority to do. The authority was Congress‘s to give, and the boundaries were for Congress to provide as well. Since it has failed to do so, I am forced to conclude § 5 of the IRA is an unconstitutional delegation.
Notes
The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians.
For the acquisition of such lands, interests in lands, water rights, and surface rights, and for expenses incident to such acquisition, there is authorized to be appropriated, out of any funds in the Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in any one fiscal year....
Title to any lands or rights acquired pursuant to this Act... shall be taken in the name of the United States in trust for the Indian tribe... for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.