*1 copyright in the Omega misused its purchase discounted the opportunity leverage Design attempting from Costco. Globe Omega watches gray market design to monopoly con- by engraving limited over copyright misused Omega of Seamaster importation of its and sale underside trol Design Globe watches, I the district court would affirm watches, copyright use attempting misuse. copyright on the issue competition law eliminate intrabrand market. in the retail watch from Costco A APPENDIX correctly held the district court
Because Redding RANCHERIA, Plaintiff-
Appellant, capacity JEWELL,
Sally her official De United States
as interior;
partment Kevin K.
Washburn, capacity in his official as Af for Indian
the Assistant Depart for the United States
fairs Interior,* Defendants-Ap
ment of
pellees.
No. 12-15817. Appeals, Court of
United States
Ninth Circuit. 8, 2014. April
Argued and Submitted
Filed Jan. * 43(c)(2). R.App. P. are sub- Fed. Sally Jewell and Kevin K. Washburn predecessors pursuant for their stituted *3 (argued) D. and Scott
Scott Crowell Wheat, Offices, Spokane, Crowell Law WA, Plaintiff-Appellant Redding for Ranchería. Moreno,
Ignacia Attorney Assistant S. General, Matthew Marinelli and Lane N. (argued), Attorneys, McFadden United Justice, Department of Environ- States Division, ment & Natural Resources D.C., Defendants-Appel- Washington, for Jewell, Sally lees the De- partment of the Interior K. and Kevin Washburn, Indian Assistant for Affairs. Jay Shapiro,
George Forman and B. Associates, Rafael, CA, for Forman & San Amicus Curiae Robinson Ranchería Indians. Pomo SCHROEDER, MARY Before: M. LIPEZ,** KERMIT VICTOR CALLAHAN, M. CONSUELO Circuit Judges. cuit, Lipez, sitting designation. Kermit Victor Senior
**The Honorable Judge United Circuit for First Cir- States SCHROEDER; Opinion by Judge thing applicable regulations unques- tionably Partial Concurrence and Partial Dissent reasonably are intended to by Judge prevent. CALLAHAN. While the pend- ing agency, however, before the
OPINION advised agency that it was willing to original close down its SCHROEDER, casino once the new Judge: Senior Circuit operation. one was in The agency did not (“the Tribe”) Redding Ranchería meaningfully address the Tribe’s alterna- very small Indian trying tribe to restore position. tive We remand to the agency so away by Reservation that was taken that it can do so. during United States the mid-Twenti- century eth era of City assimilation. See FACTS Norton, Roseville v. 348 F.3d *4 (D.C.Cir.2003); The Redding see Canby, also William C. Ranchería was first recog- by American Indian in nized the 1922, Law a Nutshell 27-30 United States in with a (5th ed.2009) (describing the reservation of about 30 gov- federal acres in located rural general policy 1965, ernment’s of Northern California. terminating In how- ever, it recognition stripped tribal in was of order to assimilate its federal recogni- Cohen, pursuant tion populations); Indian Felix to the S. Fed- California Ranchería (2005) Act, that, 85-671, § eral Indian Law 1.06 Pub.L. No. (noting 72 Stat. 619 (1958). 1950s, in starting The act govern- part general federal was of a began ment an official effort to “policy rapid of assimilate Indians into American termination”). Roseville, society. City assimilation See through The 348 F.3d at of Tribe also 1022. The eventually joined wishes to establish a Tribe successful other gaming operation California in bringing on its land. For that tribes against suit States, purpose, it the United Department has asked the see Hardwick v. United States, (N.D.Cal. the Interior to take No. C-79-1710 22, into trust a substantial Dec. 1983), parcel recently part the Tribe and as of a acquired resulting for the settle- ment, construction and tribal operation gam- recognition of a new federal was re- bling stored in Secretary casino. The 1984. the Interi- or (“Secretary”) request. denied the The Tribe then embarked on a series of
The Gaming Indian Regulatory acquisitions Act to restore lands to its reserva- (“IGRA”) generally tion, and, bans gaming on lands per request, each has been acquire that tribes after its enactment in States, taken into trust the United for a 1988, but an exception creates for tribes total of about Roughly 8.5 acres. 2.3 acres § with restored lands. 25 U.S.C. 2719. were taken into trust for individual tribe This case regulations concerns the part Sec- members as of the settlement agree- retary of the Interior promulgated has in ment Hardwick. The United States define place and reasonable accepted limits on the the Tribe’s trust-to-trust transfer exception. lands agency request 1992, parcels for these in and the found the application did not quali- began casino, Tribe operating a small because, fy submitted, at the time it Casino, was known as the Win-River on the 2.3 operating Tribe was a parcel modest casino acre entering after into a gaming land that it earlier. The dis- compact with the state of in California granted trict court summary judgment for 1999. The Tribe has since submitted sev- government because the Tribe was first, eral additional requests. land seeking operate casinos, multiple some- begun was for a Head Start facili- completed meaning within the was not “restored tribe”
ty, and land in applica- 2009. Another statute. The issue whether the accepted until and question is “restored land.” tion, accepted in 2000 also submitted ground of .5 acres. for burial was place To define and reasonable limits on for administrative In an exceptions, of the Interi- According to the buildings accepted. or, of rules promulgated series Tribe, have of- restoration efforts land 2719 of IGRA. 25 implementing section by lack of funds and hampered ten been purpose rules C.F.R. 292.1. of these nearby unavailability of land. “explain public was to to the how Department interprets” various IGRA’s request submitted a
In the Tribe exceptions exemptions, including to take Department to the Interior 29,- exception. Fed.Reg. restored lands (“the trust additional 152 acres into Undep Secretary’s interpretation, Fields”), Strawberry so the Tribe could qualify as “restored” and can thus be construct another casino. After gaming purposes only used for if the tribe De- completed application on submitted a relationship a sufficient to the establishes applica- cember amended regulations land in “mod- what term July 2010 to include an additional tion ern,” “historical,” and “temporal” connec- Shortly 80 acres. before the original tions to the Tribe’s land. the Tribe wrote a application, denied *5 § only At issue the C.F.R. 292.12. here is to December agency, letter the dated A temporal connection. can demon- tribe willing was to close stating the Tribe a “temporal” strate connection in one of current once its new gaming facilities ways: two Secretary The denied facility was built. (1) The included land is in the tribe’s the Tribe’s on December application request newly acquired first for lands that, applicable under the finding since tribe was restored to Federal conduct regulations, the Tribe could not recognition; or acquired on lands because gaming newly (2) The to application tribe submitted an already gaming was on other lands. years take the into trust land within 25 key governing The the Tribe’s statute after the was Federal tribe restored to portion of IGRA gaming activities is recognition gaming and the tribe is not Congress that covers “restored” tribes. on other lands. pro- in 1988 “as a means of passed IGRA 292.12(c) added). § (emphasis 25 C.F.R. moting development, self- tribal economic Strawberry The Fields included were not sufficiency, strong govern- tribal and request newly in the first ac- Tribe’s for permits ments.” 25 U.S.C. IGRA (1) lands, quired so subsection does not conduct on tribal Indian tribes to apply. The was 25 filed within subject lands to certain limitations. Sec- years recognition, but of the because 2719(a) prohibits tion tribes from (2), proviso last of subsection the Win- on lands taken into trust after IGRA’s stumbling River Casino block. became date, in- but that passage section a operating The Tribe was on other casino Exceptions. cludes Of Exemptions lands. 2719(b)(1)(B), relevance which is section game
allows
land
for
pending
restored tribes
remained
Tribe,
part
years.
taken into
of a “restoration of more than
Then the
trust as
seven
(the
exception”).
lands”
“restored lands
on December
wrote to the Secre-
There
it would
dispute
tary
is no
to advise that
close the Win-
new
menting
Casino when the
casino was
lands exception
River
later,
completed.
the Secre-
Eight days
general
ban on
statutory
tribes using
tary
stating
application,
denied the
acquired
land
after
IGRA for gaming.
the Tribe cannot meet the stan-
“[b]ecause
The restored
exception
lands
therefore
the Par-
dards articulated
Section
must be read in the context of IGRA’s
eligible
are not
for the restored lands
cels
general prohibition against gaming on
did not
exception.” The denial
address
acquired
lands
after 1988.
exception
letter proposing
December
was not intended
give
restored tribes an
to close the Win-River Casino.
open-ended
game
license to
ac
brought
The Tribe then
suit
in the
quired
Rather,
lands.
its purpose was to
California, challeng-
Northern District of
promote parity
tribes,
between established
ing
determination that
which had
land holdings
substantial
at the
Strawberry
Fields
not covered
are
time of
passage,
IGRA’s
and restored
exception.
restored lands
Tribe ar-
tribes, which
See City
did not.
Rose
regulation’s
limitation on
gued
ville,
The Tribe now It contends “modern,” “historical,” tablish a and “tem- regulations arbitrary that the are and ca- poral” in to pricious limiting one casino on connection to tribal tribes land. 25 that, It lands. further contends § C.F.R. 292.12. these Because factors reasonable, if the even limitation general, regulation are further defines arbitrary Secretary capricious was in each. denying its even though it had The “modern” connection means that to casino
offered close the first so that the the land is within the state or in states application would not result more than is, currently which the tribe is located and uphold one casino. We reasonableness regulation itself, but agen- by of direct the at pre- least one of several measures cy regulation to consider whether bars by regulation, proximi- scribed close casino moving operation ty to the lands. 25 tribe’s other C.F.R. from the old casino to a new one. 292.12(a). § Secretary concluded that requirement. the Tribe satisfied this
DISCUSSION Secretary also concluded Regulation I. is Reasonable satisfied the connection “historical” under 292.12(b) § 25 C.F.R. because the land in
In promulgating regulation here, Secretary imple- question at issue is next to lands. historic 712 lands, “temporal attempting con for restored without to establish a
In
to
order
it
ei
the term or
how should be
nection,”
demonstrate
define
dictate
the tribe must
(1)
authorized the
part
Congress
land was
of
administered.
ther
Secretary
promulgate regulations
to
newly acquired
for
request
tribe’s first
recog
purposes,
achieve those
as is standard
being restored to federal
after
lands
(2)
today’s understanding
of
applica
it
ad
nition,
practice
submitted an
or
law.
agency charged
within 25 ministrative
Thus an
the land into trust
tion to take
restored,
has the
administering
power
and that it is with
a statute
being
years after
left,
any gap
implicit
lands.
Id.
make rules “to fill
currently gaming on other
292.12(c).
ly
explicitly, by Congress.”
v.
§
As the
stated
or
Morton
292.12(c),
Ruiz,
199, 231,
§
“the
415
94
25 C.F.R.
U.S.
S.Ct.
39
preamble
(1974).
270
bal L.Ed.2d
limitation effectuates IGRA’s
temporal
newly
of
interests
ancing of
The Administrative Procedure Act
with
restored tribes
acknowledged and/or
accordingly
procedures
sets forth
which
nearby
and the sur
tribes
interests
implement,
agencies promulgate rules “to
29,-
community.”
Fed.Reg.
73
rounding
prescribe
policy.”
interpret,
law or
5
551(4).
agency
§
uses
U.S.C.
When
strikes a
way,
regulation
In this
making authority
rule
to define a gen
allowing restored tribes
balance between
statute,
a
ambiguous provision
eral or
lands,
acquired
at
game
newly
while
on
interpretation
long
is owed deference so
the interests of
protecting
time
same
it is reasonable.'
as
United States Mead
292.12(c) al-
Section
tribes.
established
121
Corp., 533 U.S.
S.Ct.
game
lows a tribe to
(2001)
Chevron,
(citing
The Tribe contends
This
Supreme
because it
in
v.
tion
nonetheless unreasonable
Court Montana
is
Indians,
759,
in the
The stat
Tribe
471 U.S.
contained
statute.
not
Blackfeet
of
(1985).
2399,
ute,
course,
766,
merely
exception
an
105 S.Ct.
713
engaged
even if
in gaming.
might
Tribe therefore asserts that
tribes also
It
The
could be
as reason-
regulation
viewed
well work to their disadvantage.
precludes
able,
presumption
the Blackfeet
apply
The canon should not
in
cir-
such
additional
prohibiting
from
cumstances. The canon has
applied
been
on restored
lands.
only when there is a choice between inter-
points
such “nu-
The Tribe
out that no
pretations that would favor Indians on the
clearly expressed
limitation” is
merical
private
one hand and state or
actors on
language
of the statute. See 25
within
example,
itself,
other. For
in Blackfeet
2719(b)(l)(B)(iii).
The Tribe’s
U.S.C.
Supreme
Court
in
applied the canon
that,
because the limitation is
position
dispute
interests,
between state and tribal
Tribe,
contrary to the interests of the
we
interpreting
1938 Mineral
Act.
Leasing
must
the canon to hold
apply
concluded
Court
the statute
Congressional
limitation violates
numerical
read
permit
should not be
to
of
state
purpose.
government,
other
tax
royalty
Montana to
Indian
income
hand,
to a
points
competing presumption
leases,
from mineral
did
because the Act
agency-
of a
interpretation
of deference
expressly
authorize state taxation of
Chevron,
845,
See
467
104
statute.
U.S. at
Indian royalty interests. 471
at
U.S.
S.Ct.
In
Williams Unexplained III. There Has Been No (9th Cir.1997). circuit, agency’s In this Agency Policy Change in authority to legal interpret ap a statute pears trump practice construing argues The Tribe the Secre statutory provisions in favor of ambiguous tary’s denial was inconsis Indians. agency tent prior practice with and there arbitrary capricious. fore Tribe might Even if the presumption Blackfeet points’ single past agency to a applied be some circumstances our decision however, circuit, Valley Elk apply permitted would not Ranchería *8 case. This is because all interests was game though tribal on restored lands even it aligned. Elk interpretation already gaming are not An of the on other lands. The exception Valley bene- promul restored that would decision was before the tribe, allowing § unlim- particular by gation fit this of 25 C.F.R. 292.12 in 2008 complet gaming pur- application ited of restored land for before the Tribe’s was use not poses, necessarily would benefit other ed
714 subsequent of ac- regulation bars use Elk entirely clear that not
It is any dif- It would have been additional casinos. Valley operate decision quisitions regulation. Un- the current under ferent operating was undisputed that the Tribe is may a tribe regulation, the current der when submitted the Win-River Casino they “in- are provided game on lands Strawberry for the new application its newly request for first in the tribe’s cluded applica- 2008 casino. The Tribe’s Fields restored the tribe was lands since of the construction contemplated tion thus regardless recognition” to federal apparently casino. There were a second already else- gaming is the tribe whether parties, because discussions between § 292.12. The adminis- 25 where. C.F.R. to the 2010 the Tribe wrote December record and part a of our is trative decision in- offering to “memorialize” its Elk lands on which the states from gaming operations to move its tent gam- to conduct sought Valley Ranchería Strawberry to the current location its parcels request- “the first part of ing were argues that the Secre- Fields. The Tribe acquired into trust.” to be by ed application, denying the Tribe’s tary, more, permit agency isWhat the Tribe’s arbitrarily failed to consider long pro so as it change policy ted to oper- that it would not representation 2010 explanation for the minimal vides some facilities. The Secre- multiple gaming ate Morales-Izquierdo Gon change. See application without tary denied the Tribe’s (9th Cir.2007). zales, 493 F.3d 486 offer, although of the Tribe’s any mention Valley Elk decision assuming the Even specific wording emphasized the denial regula the current inconsistent with was requi- regulation that conditions the of the treatment of the agency’s tion and finding case, temporal connection on agency in this site for its explanation land.” provided gaming sufficient “is not on other the tribe 25 promulgating In change policy. 292.12(c)(2). § The district 25 C.F.R. 292.12, that it agency stated C.F.R. the Tribe’s alterna- court did not consider public how the “explain to wanted to as tive offer and construed exception[ interprets th[is] ].” Department necessarily contemplated operation if it 29,354. explained, It further Fed.Reg. multiple casinos. requirement was de temporal the IGRA’s balanc ] signed “effectuate! arbitrary An agency’s decision ... interests of restored ing of important con capricious ignores if it surrounding interests of tribes with or relevant evidence on the siderations community.” Id. at nearby and the tribes Seattle, Wash. v. record. See Port of 29,367. explanation was More extensive (9th F.E.R.C., 1016, 1035 Cir. 499 F.3d v. Hold Robles-Urrea required. See 2007) Ass’n (citing Motor Vehicle Mfrs. (9th Cir.2012) er, 710 n. 6 F.3d Co., Auto. Ins. v. State Farm Mut. U.S. explanation “sparse” that even a (noting 29, 43, 103 S.Ct. 77 L.Ed.2d 463 U.S. suffices). (1983)). Secretary did not ad willingness to close its dress the Tribe’s Agency Have Consid- Should IV. Alternative Offer ered the Tribe’s in order to move its current casino Gaming to the New All to Move lands. to one on operations Casino however, that the agency argues, now required Secretary’s determination ac a restored tribe has
Once casino, meaning regulation. lands, plain and built a quired restored *9 292.12(c)(2), land than nothing 25 C.F.R. is more litigating Under convenient if application position post for is eligible or a hoc ad- rationalizatio[n] years 'within 25 the tribe agency submitted after vanced an seeking to defend (inter- to federal and recognition attack.”) was restored past agency against action not gaming omitted) is on other lands.” “the tribe nal quotation citations and marks year (alterations thus has both a 25 regulation The original). in The in- agency’s a prohibition against gaming and deadline terpretation on the' record administrative agency lands. The must look to on other explanation justification. before us lacks appli- on which a tribe its the date submits remanding In to agency expedite we determine has satis- cation to whether it agency’s consideration of the Tribe’s year regulation fied the deadline. The proposal. alternative We do not tell the clear, however, agency is not that the must agency say. what to While the dissent also look to the date of the to may speculate agency on how and why the determine whether the tribe has satisfied interprets regulation, agency has prohibition against gaming other never these addressed issues. cannot We regulation While the be so lands. could defer the agency to what has done. not agency provided has far interpreted, so accordingly We in part vacate the dis- why Allowing it no reason should. re- grant trict summary court’s of judgment tribe to move a casino does not stored agency with instructions to remand to the statutory pur- to conflict with the appear whether address the Tribe should be ensuring parity pose among of restored permitted to construct a new casino tribes, if and tribes. established Restored replace existing one. to operate allowed an indefinite number of lands, casinos on would of CONCLUSION an advantage course have over established tribes, allowing but is not clear that judgment the district court restored tribes to move a a dif- casino government favor of the is insofar affirmed would have the necessarily ferent location upholds as it denial same effect. operate multiple Tribe’s casi- judgment nos on' restored lands. The The agency point can out that we part, and the case reversed remanded generally agency’s interpreta defer to an the district court with to re- instructions its own regulation. tion of Auer v. See agency mand to the for consideration Robbins, 519 U.S. 117 S.Ct. proposal existing to close its (1997). administrative 137 L.Ed.2d upon of a gaming operation construction case, however, proceedings did not facility. new interpretation, address this issue of much in part, AFFIRMED and REVERSED agency’s less reasons for provide in part. REMANDED Each bear side to position. agency presented current its own costs. brief, for the position first time in sparse explanation and it for it. offered CALLAHAN, Judge, concurring Circuit agency position not defer to an We need dissenting: purposes litigation. when taken for See I, Corp., parts I II III Christopher SmithKline Beecham concur — U.S. -, 2166-67, 183 regu- I majority’s opinion. agree 132 S.Ct. that the (2012) reasonable, (noting L.Ed.2d 153 that “an inter lation at issue is Indi- here is not owed when it has pretation apply, deference canon does and there *10 tion, agency pol- in and we are determined to do what- change unexplained no been words, necessary any that ever is to alleviate con- agree I icy. In other may current reasonably rejected you the Tribe’s cerns have about our Secretary underlying regulation. landholdings gaming operation. to the challenges However, part of the I dissent from IV that our Accordingly, while we contend fairly because the Tribe did opinion existing gaming facility pre- does not Secretary of the United States prompt the obtaining a clude us from (“the Secretary” or of Interior Department Fields, Strawberry I opinion for want to alleged to consider Department”) “the personally you assure of our intent to and did not ask the offer to move its casino facility and relocate existing close our alleged offer district court to consider Strawberry gaming operation our to the Moreover, on this the casino. move Additionally, property. Fields we are record, suggesting for there is no basis willing to memorialize this intent an an offer would merit relief that the such agreement Department with the sympathy for a regulation. Our under talking you look forward to about small, justify tribe does not for- struggling [tjhis further. clearly
malizing a claim that was never Several features of this letter are relevant. Secretary, fairly was not presented to First, press its con- the Tribe continues court, to the district and is of presented “existing gaming facility tention that questionable opinion merit. Our should preclude obtaining does not from [it] litigation. conclude this opinion Strawberry restored lands for Second, only Field.” the letter offers I Chairperson’s personal Vice assurance of notes, the Tribe made its opinion As the the Tribe’s intent to relocate its casino to application in 2003. The Third, Strawberry Fields. the letter as- occasions, includ- supplemented on several “willing Tribe is to memori- serts 2008, ing on December and October Fourth, alize this intent.” the Vice Chair- nothing in either of 2010. There is person indicates that looks forward to she supplements suggests these detailed talking Deputy to the Assistant closing its contemplated about matter. if its for Win-River Casino Thus, it is doubtful that the December Strawberry approved. Fields was can, should, convey- letter or be read as Negotiations through continued a meet- ing a formal offer the Tribe to close the appears It ing in November Strawberry Win-River Casino once the might that the Tribe close possibility Rather, opened. Fields Casino Vice- if it were allowed to its Win-River Casino Chairperson personal offered her assur- Strawberry Fields was build a casino ance as to the Tribe’s intent and that the in letter dated December first raised “willing to this in- Tribe was memorialize Murphy, from Barbara Vice Chair- Moreover, agreement.” tent the let- Ranchería, to Del person, Redding Laver- any argument ter does not contain ex- due, Secretary-Indian Assistant Deputy planation why as to the Tribe’s offer to Affairs, Department of Interior. The let- might move its casino be relevant to the ter stated: ap- consideration meeting Albuquerque, plication. Particularly light ques-
Since our has met and discussed tionable relevance of this offer to the Sec- Tribal Council (see III, retary’s analysis part infra), regard applica- our to this options with attempt Rather, understood as an letter is best detail. suc- *11 negotiations: negoti- continue an effort to cinctly explained that he denied the Tribe’s ate a last minute deal. application “existing because of its gaming facility.” The offer to move the casino did later,
Eight days on December not change the fact that the Tribe an had Secretary of the Interior issued existing casino when it appli- submitted its eight-page, single-spaced denying decision cation. A application. the Tribe’s review of the 22 decision shows that it was
December The conclusion that the December 14 carefully preliminary crafted and letter did not clearly present to the Secre- determinations must have been made well tary an proposal alternate of moving the 14, penulti- before 2010. In its December existing supported casino is by the lack of mate section the letter states: anything in the suggesting record that the
Whether we consider the Tribe’s first thought Tribe otherwise. There is no indi- request newly acquired for lands to be cation that the Tribe asked the Secretary the trust-to-trust transfers or the subse- to reconsider light his decision in quent requests, fee-to-trust it is evident Indeed, December 14 letter. the Tribe’s subject that the Parcels were not includ- complaint filed in the district court does requests. ed either of these There- not even mention the December fore, the Parcels were not “included in letter. Paragraph 28 states that the Tribe request first for ac- [TJribe’s amended request on October 2010. quired lands since the was re- [TJribe Paragraph 24 then states that Department recognition” they stored to Federal and denied the request Tribe’s in the Decem- cannot meet the standard in 25 C.F.R. ber 2010 letter. There is no mention of 292.12(c)(1). § the November 2010 meeting or Ms. To meet the alternate standard Murphy’s under 25 December 2010 letter. 292.12(c)(2), C.F.R. a tribe must dem- existing record support does not onstrate that it submitted the land into majority’s statement the Tribe years trust within 25 after presented the Secretary with an “alterna- the tribe was restored to Federal recog- proposal tive to close the first casino once gaming nition and the is not tribe the new one operational.” Maj. was at other lands. Rather, possibility moving case, In existing gaming this the Tribe’s appears casino to tentatively have been facility precludes finding under this raised in a last minute letter with no ex- section. planation why the proposal would be Even if permissible the Tribe’s letter could be applicable under regula- plea viewed as a for the creation of an tion. The proposal” “alternate was not exception requirement decision, to the Secretary’s “the addressed in the land,” tribe is not on other which the Tribe never asked the contrary meaning, to its natural see reconsider his in light decision of its al- infra, the leged December 14 letter contained no proposal.” “alternate We hold that explanation justification or for such a re- denial of the quest. Accordingly, as the alleged Tribe’s was otherwise reasonable. This decision offer to appear move its casino did not to should not be by subsequent undermined decision, be relevant to the Secretary’s attempts to re-characterize hap- what not, did pened. should not be re- proposal” Because no “alternate to, quired or expected address the fairly presented offer was Secretary, his letter, only but supporting it cannot be described as to address failure Furthermore, capricious. argument Tribe’s that “because arbitrary as merit, conducting gam- proposal” upon has which Tribe if “alternate ing original it anew were within the boundaries of can raise presumably Reservation, had a course Department. Such with the request case on the Tribe’s that the remanding effect surely preferable no. court, pursuant it to the be into trust Property to remand taken district Exception.” that was not the Restored Lands The De- Secretary, to consider a claim *12 14, 2010 does not make an Department. the cember letter raised before fairly in reply Tribe’s brief. appearance the II. only in the district court’s language majority’s opinion the and Contrary to arguably implies that that the dis- opinion in appellate its representations the Tribe’s thought sought trict court that the Tribe 32-page opinion brief, court’s the district is the operate multiple casinos third misperception a that the based on not in the that reads: “The opinion sentence operate multiple sought to casinos. Tribe to expand opera- Tribe seeks its noted, December 14 letter was not As the by casino building tions a second on 230 complaint. the Tribe’s even mentioned riverfront undeveloped acres of lands.” However, statement, this accurate is an Furthermore, a of the briefs filed review if the even Tribe intended close al- court that district reveals Casino. The Tribe did seek to Win-River proposal” was never ar- leged “alternate Moreover, a “second” casino. build to the court. The gued writing district operations its expand Tribe did intend to mentioned in 14 letter is first December Strawberry Fields proposed as the Casino 30, 2011 Motion for September Tribe’s be much than the Win-River larger would “summarizing Judgment as Summary Casino. supporting arguments the Tribe’s many of the Property fell within position The district court did address Exception.”1 Lands Howev- the Restored claim Tribe’s that the “refused er, of the motion was that “the thrust information, to consider and important depends Decision ... on the validity of the arbitrary that the found Decision was Regulations.”2
validity of the court capricious.” or The district conclud- alleg- “explained contain a section ed that the had motion does satisfy Assistant Deci- the Tribe could not the alternate ing that “the establishing temporal the APA he refused criterion for con- sion violates because lands, information and ar- nection to which important de- consider conducting gaming tribe.” on a tribe no guments pends submitted This lands, 292.12(c)(2), see mention the December other because the section does Summary in the motion Paragraph Motion for 2. The stated: Judgement reads: Secretary's The Assistant Decision that the request the Tribe sent be denied based On December must reiterating Property the dis- to Mr. Laverdure conclusion that did not letter during requirements Regulations, occurred the Novem- meet the of the cussions that meeting, summarizing particular §§ 292.2 and 25 C.F.R. 292.7- ber Decision, arguments support validity many the Tribe's 292.12. The of the there- depends validity Regula- Property the Re- position that the fell with fore on the Exception. Lands tions. stored already operated the tribe Win-River Ca- not ‘already-be gaming on other lands.’” sino,” “nothing there was agreement arbi- Our with the district court on trary capricious about these three issues should litiga- end this Regulations.” The district court fur- tion, there is no need for further comment. opined objec- ther that “[t]he Tribe’s real However, section IV of majority tion to the Decision appears to be not how opinion, after incorrectly accepting as fact applied Interior Regulations but rather both that the Tribe made an alternate applied Interior them at all.” proposal to Department and that the Thus, the district court held that district court’s order contemplated that Secretary reasonably denied the Tribe’s sought to operate multiple casi- request because the already Tribe was nos,3 proceeds to offer questionable dicta. gaming on other land. The district court The majority recognizes that regula- (and did not apparently consider was not tion contains a prohibition against gaming consider) asked to whether the regulation lands, on other but then comments: could, be, or should interpreted revised or *13 The regulation clear, is however, not to allow the transfer of from one agency that the must also look to the location to another. Just as the Secre- date of the application to determine tary’s decision should not be set aside for whether the tribe has pro- satisfied the addressing argument not an that was not against hibition gaming on other lands. clearly pro- raised the administrative regulation While the could be so'inter- ceedings, the district court should not be preted, agency provided has so far reversed for not addressing argument an no why reason it should. Mowing a that the Tribe failed to advance before it. restored tribe to move a casino does not It appears that the Tribe waived its alter- appear to conflict with the statutory pur- proposal argument by nate failing pres- pose of ensuring parity among restored ent it to the district court. and established tribes. Maj. at 714.
Ill
Finally, I
agree
majori-
cannot
with the
approach
This
wrong
is
on a number of
ty’s gratuitous
First,
comments on the merits of
fronts.
it
liberty
takes
with the
the Tribe’s “alternate proposal”
regulation’s
to close its
language. The critical subsec-
Win-River Casino
open
a casino on tion reads: “the tribe
appli-
submitted
Strawberry
panel
Fields. The
inis
accord cation to take the land into trust within 25
(1)
(2)
regulation
reasonable,
that
years
is
after the tribe was restored to Fed-
(3)
the Indian canon does not apply, and
eral recognition and the
gam-
tribe is not
there has been no unexplained change
ing
on
Why
other lands.”
isn’t the most
agency policy. These cover
primary
natural reading of the subsection that the
Indeed,
issues raised
the Tribe.
in its Secretary must
look to the date of the
brief,
the Tribe reiterates
that
it
application in determining
ap-
whether the
reply;
consistently
“has
challenged very specific
a
plication was
year
submitted within the 25
component
Secretary’s
interpreta-
period and whether the tribe “is
gam-
not
tion;
requirement
ing
set
forth
25
on other lands?” The subsection di-
292.12(c)(2)
C.F.R.
that
the tribe must
rects the
to look at what
is
majority
3. The
ily contemplated
operation
states that: "The district court
multiple
of
did not consider the Tribe’s alternative offer
casinos.”
and construed its
as if it necessar-
U.S.A.,
might
in the
Inc.
Natural
happen
what
Res.
Coun
happening, not
Def.
Inc.,
cil,
467 U.S.
104 S.Ct.
future.
(1984)).
have
never been it have built
its casino at a better location in the first
instance, it why but is not clear the Tribe’s are, 'be,
particular challenges or should
relevant Secretary’s interpretation I regulation. explain of the am at a loss to WARNER, Benjamin F. Cole, Charles R. majority how the can affirm otherwise through his next friend Robert suggest decision but then Jackson, Grant, S. John M. and Rich
the Tribe’s intent to move its casino rather Glossip, ard Plaintiffs-Appellants, E. operate than a second casino might some- change Secretary’s interpretation how Coddington, James A. Carlos Cuesta- regulation. Rodriguez, Davis, Nicholas A. Richard Fairchild, Grissom, S. A. Wendell IV Harmon, Raymond Marlon D. E. If the Tribe wants ask the Johnson, Littlejohn, Emmanuel A. to reconsider the December 2010 deci- Pavatt, James D. Kendrick A. sion on the basis that “is not Simpson, Underwood, Kevin R. Bren ” be, may, interpreted other land or should Andrew, Jackson, da A. D. Shelton to allow a Tribe to move its casino from Phillip Hancock, Jones, D. D. Julius land, existing newly acquired land to Mitchell, Alfred B. and Tremane *15 presumably may express do so. I no opin- Wood, Plaintiffs, ion as to whether should
entertain, grant, request. such a How- ever, having unanimously determined that GROSS, Roach, Kevin J. Michael W. the Secretary’s interpretation of “is not Burrage, Haynes, Steve Gene Frazier ” reasonable, on other land we Henke, Neal, Linda K. Earnest D. should not comment on the Tribe’s belated Ware, Patton, Robert C. Anita K. offer to move its casino. This is so be- Trammell, Evans, Edward Hunit Sec cause the Tribe fairly present did not X, tion Chief and John Doe Execu argument to the Secretary or to the dis- 1-10, Defendants-Appellees. tioners # Furthermore, trict court. majority’s No. 14-6244. dicta is contrary to the reason- interpretation regulation, able which Appeals, United States Court of deference, is entitled to and the dicta is Tenth Circuit. unsupported by legal facts or argument. Jan. Accordingly, majority’s misguided championing of the Tribe’s offer to move
the casino judiciary’s misconceives the re-