STAND UP FOR CALIFORNIA!, ET AL., APPELLANTS v. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., APPELLEES
No. 19-5285
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2020 Decided April 16, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-00058)
Jennifer A. MacLean argued the cause for appellants. With her on the briefs was Benjamin S. Sharp.
Brian C. Toth, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, and Mary Gabrielle Sprague, Attorney.
Jessica L. Ellsworth argued the cause for appellee Wilton Rancheria, California. With her on the brief was Benjamin A. Field. Neal K. Katyal entered an appearance.
Before: GARLAND*, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS,
I.
The Wilton Rancheria is an Indian tribe based in the Sacramento area.1 Wilton‘s members are descendants of
Miwok and Niensen speakers. As with its general policy regarding tribal sovereignty, the federal government‘s approach to Wilton has gone through drastic fits and starts, vacillating between coercing assimilation and encouraging tribal self-government. Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CALIF. L. REV. 1137, 1138 (1990). Wilton was first federally recognized in 1927, when Congress initiated a program that provided land to Indians who were not on reservations. After Congress passed the
In 1958, however, Congress disestablished Wilton and forty other reservations through the California Rancheria Act (Rancheria Act).
Register that the Wilton Tribe‘s members were no longer entitled to services reserved for Indians. Termination of Federal Supervision, 29 Fed. Reg. 13,146 (Sept. 15, 1964).
In 1979, members of several California rancherias, including Wilton members, brought a class action against the Department for unlawfully terminating the federal government‘s trust relationship with their tribes. Four years later, the government settled and agree[d] to restore[] and confirm[] Indian status for some who had lost it pursuant to the Rancheria Act, including seventeen tribes that had lost their tribal status under the Act. Stand Up for California! v. U.S. Dep‘t of Interior, 879 F.3d 1177, 1184 (D.C. Cir. 2017) (quoting Stipulation for Entry of Judgment, Hardwick, No. C-79-1710-SW, ¶¶ 2-4 (Aug. 3, 1983)). But Wilton was excluded from the settlement agreement because the district court mistakenly concluded that [n]o class member from [Wilton] currently owns property within the original rancheria boundaries. Wilton Miwok Rancheria v. Salazar, 2010 WL 693420, at *2 (N.D. Cal. Feb. 23, 2010) (quoting Certificate of Counsel re Hearing on Approval
Almost forty years later, members of the Tribe sued the Department, seeking federal recognition of the Wilton Rancheria and the acquisition of certain land into trust by the government on the Tribe‘s behalf. Id. at *3. Two years later, the Tribe and the government entered into a settlement agreement. The Department acknowledged that the United States failed to comply with the Rancheria Act in terminating the Wilton Rancheria and distributing its assets. Id. The Department thus recognized that the Tribe was not lawfully terminated. The Department also agreed to restore federal recognition of the Tribe and to accept in trust certain lands formerly belonging to Wilton. Id. at *3. In June 2009, the district court in California entered the settlement agreement as
a stipulated judgment. After the case settled, the Department published notice оf the restoration of Wilton‘s status as a federally recognized tribe. Since then, the Wilton Rancheria has been listed on the Department‘s annual list of federally recognized tribes.
In 2013, Wilton petitioned the Department to acquire land in trust on the Tribe‘s behalf so that it could build a casino. The Tribe proposed a 282-acre plot near Galt, California. Pursuant to the National Environmental Policy Act (NEPA),
In November 2016, the Depаrtment requested comment from interested parties about a potential casino in the Elk Grove location. The list of notified parties included the State of California, the City of Elk Grove, and Stand Up. Stand Up
responded that transferring title to the Elk Grove location would moot multiple pending state-court challenges seeking to prevent the acquisition and urged the Department to delay title transfer. The Department denied Stand Up‘s request. The Department then published its final EIS, which identified the Elk Grove location as the preferred alternative.
On January 19, 2017, the Department issued a Record of Decision (ROD) that constituted the final agency action to acquire the Elk Grove location in trust on Wilton‘s behalf. Lawrence Roberts—the Principal Deputy Assistant Secretary-Indian Affairs signed the ROD pursuant to delegated authority. Roberts had served as Acting Assistant Secretary-Indian Affairs (AS-IA), but after his acting status lapsed pursuant to the Federal Vacancies
Appellants brought this lawsuit prior to the issuance of the Department‘s ROD and sought a temporary restraining order, which the District Court denied. Appellants’ lawsuit alleged, inter alia, that (1) the FVRA and Department regulations precluded the Principal Deputy from exercising the authority to sign off on the ROD acquiring the Elk Grove land in trust; (2) Principal Deputy Roberts was acting without authority when he acquired the title in trust for the Tribe; (3) the Department could not acquire land in trust on behalf of
Wilton‘s members pursuant to the Rancheria Act; and (4) the Department violated NEPA and the APA by failing to prepare a supplemental or new EIS after it selected the Elk Grove location as its preferred alternative. Wilton intervened on behalf of the Department. After the parties cross-moved for summary judgment, the District Court granted the Department‘s summary judgment motions. This appeal followed.
We review the District Court‘s grant of summary judgment de novo. W. Surety Co. v. U.S. Eng‘g Constr., LLC, 955 F.3d 100, 104 (D.C. Cir. 2020). We evaluat[e] the administrative record directly and invalidat[e] the Department‘s actions only if, based on that record, they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Stand Up!, 879 F.3d at 1181 (internal quotation omitted).
II.
We begin with Appellants’ challenge to the Department‘s redelegation of final decision-making authority to the Principal Deputy. First, Appellants claim that the regulation in question prohibits redelegation beyond the AS-IA. Second, Appellants argue that even if the regulation permitted redelegation, the Department failed to properly redelegate this power to Principal Deputy Roberts.
We reject both of Appellants’ challenges. First, the text, structure, and purpose of the regulation confirm that the Department has the power to redelеgate final decision-making authority. Second, the Department properly redelegated the final decision-making authority to Principal Deputy Roberts. We therefore affirm the District Court‘s grant of summary judgment to the government on these claims.
A.
The Bureau of Indian Affairs (BIA) has promulgated regulations governing who can make land acquisitions on behalf of Indian tribes. The regulations define Secretary as the Secretary of the Interior or authorized representative.
To determine whether redelegation of final decision-making authority is permissible, we must first assess whether the power is an exclusive function or duty of the Secretary or the AS-IA. The FVRA forecloses the delegation of exclusive duties and authorities to a successor official after expiration of the statutorily authorized 210-day period of acting-capacity service. The FVRA also establishes that a function or duty is exclusive when it is either established by statute, and . . . required by statute to be performed by the applicable officer (and only that officer) or when it is established by regulation and . . . is required by such regulation to be performed by the applicable officer (and only that officer).
function or duty is exclusive, it may do so through clear statutory mandates. See, e.g.,
Relying on the text of Section 151.12, Appellants argue that the Department has restricted final decision-making authority to the Secretary or to the AS-IA. Appellants contend that because Section 151.12(c) provides that final decisions can be made by the AS-IA pursuant to delegated authority, while Section 151.12(d) sets out the procedures for non-final decisions made by BIA officials, the Department has made
final decision-making authority an exclusive function. We disagree. While Section 151.12 certainly contemplates that the actions of the Secretary and the AS-IA will constitute final agency action, when fairly read, it does not foreclose redelegation of these duties.
To begin, we hold that, contrary to Appellants’ assertions, the presumption in favor of redelegability applies to regulations. We have previously recognized that
preceding any vacancy.
With this presumption in mind, we turn to the text. As with statutes, regulations must be construed holistically. See Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 356 n.10 (D.C. Cir. 1993); see also Carlson v. Postal Regulatory Comm‘n, 938 F.3d 337, 349 (D.C. Cir. 2019) ([I]n expounding a statute, we must not be guided by a single sentence . . . but look to the provisions of the whole law. (quoting Del. Dep‘t of Nat. Res. & Envtl. Control v. EPA, 895 F.3d 90, 97 (D.C. Cir. 2018))). Here, the regulatory text provides two methods by which the Department can acquire land in trust. Section 151.12(d) contemplates that the decision to take land into trust may be delegated to a BIA official, but the BIA official‘s decision would be subject to administrative review.
The Department‘s other regulations confirm our reading of Section 151.12. As other regulations make clear, the Department knows how to use language that renders a function or duty exclusive to a particular official. See, e.g.,
Assistant Secretary-Indian Affairs pertaining to Indian education functions shall not be delegated to other than the Director, Office of Indian
Appellants invoke the expressio unius canon to argue that the regulation‘s explicit mention of the AS-IA forecloses redelegation beyond the AS-IA. But as we have made clear, the expressio unius canon is often misused because drafters include duplicative language to ensure that the mentioned item is covered—without meaning to exclude the unmentioned ones. Shook v. D.C. Fin. Resp. & Mgmt. Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998). Moreover, as the Second Circuit has recognized, the expressio unius canon carries even less weight in the redelegation context, where the statute or regulation may mention a specific official only to make it clear that this official has a particular power rather than to exclude delegation to other officials. United States v. Mango, 199 F.3d 85, 90 (2d Cir. 1999). Section 151.12(c) is emblematic of the shortcomings of the expressio unius canon in the redelegation context. Although the regulation explicitly mentions the AS-IA, it incorporates the definition of
Secretary from Section 151.2(a) which includes any authorized representative. Nothing else in the regulation‘s text suggests that the Department intended to limit the redelegation to the AS-IA, and invoking the expressio unius canon would require us to ignore the regulation‘s definition of Secretary. Instead, we believe it a fairer reading of the regulation that the Department was merely making clear that the AS-IA had been delegated the authority of final deсision-making, not that the AS-IA alone could exercise this authority. We therefore decline to apply the expressio unius canon to Section 151.12.
Section 151.12‘s purpose also supports our reading of the regulation. As with statutes, we may look to the purpose and drafting history of the regulation to confirm whether our interpretation of the text comports with the Department‘s intent in promulgating Section 151.12. See U.S. Telecom Ass‘n, 359 F.3d at 565; Giordano, 416 U.S. at 514. Here, the Department‘s goal in amending Section 151.12 affirms our understanding that the Department did not intend to prohibit redelegation of this function. Section 151.12 was amended in 2013 to [p]rovide clarification and transparency to the process for issuing decisions by the Department, whether the decision is made by the Secretary, [AS-IA], or a [BIA] official. Land Acquisitions: Appeals of Land Acquisition Decisions, 78 Fed. Reg. 67,928, 67,929 (Nov. 13, 2013). The Department was not focused on who could wield the authority to make final decisions. Rather, the Department sought to clarify whether an acquisition of land was final and what means of review were available to aggrieved parties: The decisions of the Secretary and AS-IA are final and appealable, it explained, and the decisions of BIA officials are not. In adopting that rule of finality,
process, a decision made under Section 151.12(c) permits aggrieved parties to immediately seek judicial review before an Article III court.3 The Department‘s purpose in promulgating Section 151.12 thus сonfirms that the Department did not seek to foreclose redelegation of final decisions to acquire land into trust.
Appellants’ reliance on Giordano is misplaced. There, the Supreme Court interpreted a statute where Congress provided that [t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General could authorize a wiretap, Giordano, 416 U.S. at 513 (quoting
authority, 78 Fed. Reg. at 67,929. We therefore hold that Section 151.12 permits redelegation beyond the AS-IA.
B.
We next turn to Appellants’ argument that the Department failed to properly redelegate the final decision-making authority to Principal Deputy Roberts. Appellants contend that because the Department did not adhere to the redelegation procedures set forth in the Dеpartmental Manual, the redelegation—either through automatic redelegation or through the Connor Memorandum—was impermissible. We reject Appellants’ challenge.
Even if violation of the Departmental Manual supported a third-party claim—which we doubt, see Schweiker v. Hansen, 450 U.S. 785, 789-90 (1981); Chiron Corp. & PerSeptive Biosystems, Inc. v. NTSB, 198 F.3d 935, 944 (D.C. Cir. 1999)—Appellants’ challenge still fails on its merits. Principal Deputy Roberts began serving as the Acting AS-IA in January 2016. After his term as AS-IA lapsed pursuant to the FVRA, Roberts reverted to his position as Principal Deputy. But under the Departmental Manual, the Principal Deputy may exercise the [non-exclusive] authority delegated to the AS-IA [i]n the [AS-IA‘s] absence. 209 DM 8.4A. Appellants attempt to distinguish an absence from a vacancy, but they forfeited this argument by failing to raise it in the District Court. See Weinstein v. Islamic Republic of Iran, 831 F.3d 470, 483 (D.C. Cir. 2016) (To preserve an argument on appeal a party must raise it both in district court and before us.). Regardless, for purposes of delegation under this regulation, a vacancy may be treated as a type of absence. Appellants’ reliance on other provisions of the Departmental Manual where the Department uses the term vacancy is misplaced, as those provisions deal specifically with succession, not redelegation. See 302 DM 1.1. As discussed above, final decision-making authority pursuant to Section 151.12 is a non-exclusive function, so this
is not an issue of a succession, but rather an issue of redelegation. Thus, absence can certainly include a vacancy in office, particularly when the functions at issue are non-exclusive. Therefore, the Department did not violate any of the provisions by automatically redelegating the AS-IA‘s non-exclusive functions and duties to the Principal Deputy.
In any event, any failure to automatically redelegate this non-exclusive function was corrected when the Department issued the Connor Memorandum. The Departmental Manual acknowledges that it can be superseded by any appropriate authority, including but expressly not limited to a Secretary‘s order. J.A. 248 (listing permissible appropriate authority, e.g., a change in statute, regulation, or Executive order; a Secretary‘s Order or a court decision; etc. (emphasis added)). As the Connor Memorandum explained, the Department intended for Principal Deputy Roberts to exercise the nonexclusive functions and duties of the AS-IA, but the succession order incorrectly identified Roberts‘s positiоn. So, although [t]he Department typically uses succession orders to delegate authority, the Department issued the Connor Memorandum to confirm [Roberts‘s] authority to exercise the functions and duties of the AS-IA that are not required by law or regulation to be performed only by the AS-IA. J.A. 276. And given that the Departmental Manual permits deviation from the procedures by any appropriate authority, the Connor Memorandum, issued by the Deputy Secretary of the Interior, permissibly redelegated final decision-making authority to Roberts.4 Thus, to the extent that the delegation was not
automatically made, it was correctly done through the Connor Memorandum.
III.
Appellants also appeal the District Court‘s grant of summary judgment to the Department on Appellants’ Rancheria Act claim. Appellants claim that they do not challenge the court-approved settlement agreement that reestablished federal recognition of Wilton. Instead, Appellants argue that because the Department distributed assets to Wilton members pursuant to the Rancheria Act, Wilton members are no longer entitled to the federal government‘s services on account of their status as Indians. We reject this argument as specious.
As Appellants are well aware, we have previously recognized that a court-approved settlement can invalidate the effect of the Rancheria Act. In another lawsuit brought by Stand Up, we concluded that a court-approved settlement agreement is sufficient to restore recognition of a tribe and to restore Indian status for members of that tribe notwithstanding the Rancheria Act. Stand Up!, 879 F.3d at 1184. The settlement agreement, which a
As a fallback, Appellаnts contend that the District Court erred by relying on the Federally Recognized Indian Tribe List Act of 1994 (List Act).
Because a court-approved settlement agreement reversed the termination of the Wilton Rancheria pursuant to the Rancheria Act, we affirm the District Court‘s grant of summary judgment to the Department.
IV.
Finally, Appellants challenge the District Court‘s grant of summary judgment to the Department on their NEPA claims. Appellants argue that, at a minimum, the Department should
have prepared either a supplemental EIS or a new EIS after it selected the Elk Grove location as the site for the casino. This contеntion also has no merit.
Congress enacted NEPA in 1970.
Where necessary, an agency must also prepare a supplemental EIS. An agency must prepare a supplemental
EIS if (1) [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns, or (2) [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
When we review an EIS prepared under NEPA, our role is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious. Nat‘l Comm. for the New River v. FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004) (quoting Baltimore Gas & Elec. v. NRDC, 462 U.S. 87, 97-98 (1983)). We must ensure that the agency took a ‘hard look’ at the environmental consequences of its decision to go forward with the project. Id. (quoting City of Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002)). In determining whether an agency is rеquired to supplement its EIS, we also apply the arbitrary-and-capricious standard. Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 376 (1989).
In Marsh v. Oregon Natural Resources Council, the Supreme Court evaluated whether NEPA required an agency to prepare a supplemental EIS after finalizing the EIS. 490 U.S. 360 (1989). The Court concluded that, the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance. Id. at 374. If the federal action is pending, then the new information that comes to light must be sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered to require a supplemental EIS. Id. (internal alteration and quotation omitted). Put simply, courts must apply the rule of reason, which turns on the value of the new
information to the still pending decisionmaking process. Id. at 374. In turn, we have held that [t]he overarching question is whether an EIS‘s deficiencies are significant enough to undermine informed public comment and informed decisionmaking. Mayo v. Reynolds, 875 F.3d 11, 20 (D.C. Cir. 2017) (quoting Sierra Club v. FERC, 867 F.3d 1357, 1368 (D.C. Cir. 2017)).
Moreover, nothing prohibited the Department from buttressing its analysis between the draft EIS and the final EIS. In the final EIS, the agency must respond to comments and discuss any responsible view which was not adequately addressed in the draft EIS.
in the final EIS). But this requirement does not, as Stand Up suggests, prohibit the Department from buttressing its initial analysis. And the Seventh Circuit‘s holding in Habitat Education Center does not contradict this proposition. As Stand Up acknowledges, the Seventh Circuit concluded that when [s]trictly construed, NEPA regulations permit an agency to issue a final EIS that does no more than incorporate a previously issued draft EIS and respond to comments received. Habitat Educ. Ctr., Inc. v. U.S. Forest Servs., 673 F.3d 518, 527 (7th Cir. 2012) (emphasis added). That does not mean that an agency is prohibited from going further and bolstering its analysis in the final EIS. The agency must only be sure that the new analysis is not based on new information that paints a seriously different picture of the impact of the project.5
Nor did the Department‘s decision to select the Elk Grove location fail to properly notify the public of its plans. Publication of an EIS, both in draft and final form, also serves a larger informational role and provides a springboard for public comment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). As such, we must review whether an EIS‘s deficiencies are significant enough tо undermine informed public comment and informed decisionmaking. Mayo, 875 F.3d at 20 (quoting Sierra Club, 867 F.3d at 1368). But the designation of the Elk Grove site as the preferred alternative did not deprive the public and interested parties of the opportunity to meaningfully comment on or evaluate the proposal. First, the Department listed the
Elk Grove site as an alternative proposal. J.A. 968,
Appellants’ remaining arguments are similarly without merit. First, Appellants argue that the Department failed to follow NEPA regulations because it only made the City of Elk Grove a cooperating agency later in the process. But as the regulation that Appellants cite makes clear, the lead agency must only request the participation of each cooperating agency in the NEPA process at the earliest possible time.
Second, Appellants argue that the turnaround time between the close of the final EIS‘s comment period and the issuance of the ROD is impermissibly short. Admittedly, the two-day turnaround between the closure of the comment period and the issuance of the ROD is not typical. But Appellants offer no controlling precedent suggesting that the quick turnaround was per se impermissible. And as the District Court
recognized, the one case Appellants cite—a district court case from North Carolina—is inapposite. There, the agency acknowledged that it failed to respond to numerous comments and had already reopened the NEPA process. North Carolina Alliance for Transp. Reform, Inc. v. U.S. Dep‘t of Transp., 151 F. Supp. 2d 661, 676 (M.D.N.C. 2001). Here, however, Appellants have not claimed that the Department failed to respond to any comments. Thus, while it may have been unusual for the Department to have moved so quickly to issue the ROD, that short turnaround in and of itself is insufficient to invalidate the decision.
V.
Over seven years after the Department began the process of acquiring land in trust on behalf of Wilton, it has maintained its position that Wilton is a federally recognized tribe and that the officials who made the decision properly followed the Department‘s regulations. In acquiring this land in trust, the Department followed all of its statutory and regulatory obligations to consider the environmental impact of this acquisition. We therefore affirm.
So ordered.