Butte County, Cal. v. Hogen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2009 Decided July 13, 2010

No. 09-5179

BUTTE COUNTY, CALIFORNIA,

APPELLANT

v.

PHILIP N. HOGEN, CHAIRMAN, NATIONAL INDIAN GAMING

COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00519)

Dennis J. Whittlesey argued the cause and filed the briefs

for appellant. Bruce S. Alpert entered an appearance.

Robert P. Stockman, Attorney, U.S. Department of Justice,

argued the cause for federal appellees. With him on the brief

were John C. Cruden, Acting Assistant Attorney General, and

Aaron P. Avila, Attorney. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance.

Nicholas C. Yost argued the cause for appellee Mechoopda

Indian Tribe of Chico Rancheria, California. With him on the

brief were Michael J. Anderson and Matthew J. Kelly.

2

Before: ROGERS and GRIFFITH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

I.

RANDOLPH, Senior Circuit Judge: The issue in this appeal

from the judgment of the district court arises from efforts of the

Mechoopda Indian Tribe of Chico Rancheria in Butte County,

California, to obtain federal approval to conduct gaming

operations. The Indian Gaming Regulatory Act, 25 U.S.C.

§§ 2701–2721, permits federally-recognized Indian tribes to

conduct gaming on “Indian lands.” The Act defines “Indian

lands” to mean all lands within any Indian reservation and “any

lands title to which is . . . held in trust by the United States for

the benefit of any Indian tribe . . . .” Id. § 2703(4). Indian

gaming is not permitted on “newly acquired lands” – that is,

lands the Secretary of the Interior took into trust for a tribe after

October 17, 1988, when the Act went into effect. An exception

to this bar allows Indian gaming on lands the Secretary takes

into trust after the 1988 date “as part of . . . the restoration of

lands for an Indian tribe that is restored to Federal recognition.”

Id. § 2719(b)(1)(B)(iii).

The Mechoopda Tribe has been restored to federal

recognition. The issue at the administrative level was whether

land the Tribe purchased and offered to the Department of the

Interior to take into trust for its benefit qualified as restored

lands. The Act does not define “restoration of lands.” The

Interior Department and the agency largely responsible for

regulating Indian gaming – the National Indian Gaming

3

Commission – believed that any lands “located within the areas

historically occupied by the tribes are properly considered to be

lands taken into trust as part of the restoration of lands.” Grand

Traverse Band of Ottawa and Chippewa Indians v. U.S.

Attorney for W. Dist. of Mich., 46 F. Supp.2d 689, 701 (W.D.

Mich.1999). Shortly after final agency action in this case, the

Interior Department codified its view in regulations requiring,

among other things, that a tribe “demonstrate a significant

historical connection to the land.” 25 C.F.R. § 292.12(b).1

The Mechoopda Tribe had approximately 400 enrolled

members when this case began. Most lived in or near what is

now Chico, California, the largest city in Butte County in the

north-central portion of the state. The Tribe traces its history to

a “rancheria” in Chico. In 1849, John Bidwell, a wealthy

California businessman and politician, purchased a 22,000-acre

ranch and hired Indians to live and work there. When Bidwell

died, he left the ranch to his wife. Between 1909 and 1918 Mrs.

Bidwell conveyed 26 acres of the ranch where the Indians were

living – the “rancheria” – to a private board in trust for the

Indians. The United States took over as trustee of the rancheria

in 1939. Acting pursuant to the California Rancheria Act, Pub.

L. No. 85-671 (1958), the government terminated the

Mechoopda Tribe’s recognition in 1967 and ended the trust

status of the land. See Notice of Termination, 32 Fed. Reg. 7981

(June 2, 1967).

1

If the tribe regained recognition through federal legislation

and the legislation authorized the Interior Secretary to take particular

parcels of land into trust for the tribe, the Secretary will consider those

lands “restored.” 25 C.F.R. § 292.11(a)(1). That situation, not present

here, describes City of Roseville v. Norton, 348 F.3d 1020 (D.C. Cir.

2003).

4

The Tribe brought a lawsuit contesting its termination. The

suit ended when the government and the Tribe entered into a

settlement agreement. As the settlement agreement provided,

the government restored the Tribe to federal recognition in 1992.

See Notice of Reinstatement, 57 Fed. Reg. 19,133 (May 4,

1992). The settlement agreement also forbade the Tribe from

reestablishing the boundaries of the rancheria.

In 2001, the Tribe purchased a 645-acre parcel of land in

Butte County. The Tribe’s plan was to have the government

take the land in trust so that the Tribe could develop and operate

a casino there. The parcel is located approximately 10 miles

from the area of the former rancheria, which is in the center of

the city of Chico. In addition to requesting the Secretary to take

the parcel into trust for the Tribe’s benefit, the Tribe submitted

applications to the Gaming Commission for review of a gaming

management contract and for approval of a gaming ordinance.

The matter was initially referred to the Office of the

General Counsel for the Gaming Commission to prepare an

advisory legal opinion on whether gaming on the land would be

permissible – that is, whether the land, if taken into trust, would

qualify under the restored lands exception. Relying on material

the Tribe provided, Acting Deputy Counsel Coleman concluded

that the Tribe had a “historical and cultural nexus” to the

proposed gaming site that was “sufficient to show that the parcel

was not merely an acquisition but a restoration of previously

used lands.” Her conclusion rested, in part, on the fact that the

proposed gaming site was within the boundaries of the

Mechoopda villages before the Mechoopda relocated to the

Bidwell ranch. Her memorandum also indicated that the

proposed site was within land that was promised the Mechoopda

by an unratified treaty of 1851. There was other evidence

showing the historical and cultural significance of the land to the

Mechoopda. The memorandum stated that the Interior

5

Department’s Office of the Solicitor concurred in her

conclusion.

Coleman’s memorandum was dated March 14, 2003. The

Secretary did not make a final decision to take the land into trust

until May 8, 2008. In the interim, on June 16, 2006, the attorney

for Butte County wrote to the Secretary to dispute Coleman’s

opinion. The County objected to Coleman’s conclusion that the

Tribe had a historic connection to the gaming site. As the

County saw it, the tribe that worked and lived on the Bidwell

Ranch, and from whom the modern Tribe is descended, was not

the same tribe as the historic tribe that had allegedly occupied

the gaming site. Rather, the people residing at the ranch were a

disparate group of Indians from many tribes. The County urged

that the only land to which the tribal members could show a

common connection was on the site of the former the Bidwell

Ranch.

To support its assertions, the County attached a report

prepared by its consultant, Dr. Stephen Dow Beckham, a

professor of history at Lewis & Clark College. The report

provided a history of the Bidwell Ranch and those who worked

and resided there. Beckham cited the findings of a Bureau of

Indian Affairs employee who visited the ranch in 1914. The

BIA employee concluded that the Indians did not “belong to any

particular band, but are remnants of various small bands,

originally living in Butte and nearby counties.” Beckham’s

report also included a detailed account of the families who

resided at the ranch between 1928 and 1933. A significant

number of these individuals belonged to a tribe interchangeably

referred to as Michopda, Mishopda, or Mi-Cho-Da. While this

is the historic tribe discussed in Coleman’s analysis, Beckham

found that many of the ranch Indians were from other tribes –

his report lists members of the Wailaki, Concow, Winton, Yuki,

Pit River, and Sioux tribes. Why the Indians of the Bidwell

6

Ranch ultimately assumed the name “Mechoopda” – presumably

a variant of the “Michopda” tribe from which some of them

were descended – is unclear.

The Acting Deputy Assistant Secretary for Policy and

Economic Development responded to the County in a short

rejection letter. The letter, dated August 28, 2006, stated:

“[Y]ou ask that the Department reject the March 14, 2003,

determination of the National Indian Gaming Commission

(NIGC) that the parcel proposed to be taken into trust would

qualify as ‘restored land[.]’ . . . We are not inclined to revisit

this decision now because the Office of the Solicitor reviewed

this matter in 2003, and concurred in the NIGC’s determination

of March 14, 2003.” There is no indication that the Interior

Department ever revisited this determination and actually

considered the County’s evidence.

On February 8, 2007, the Gaming Commission approved

the Tribe’s gaming ordinance, indicating that the approval was

“only for gaming on Indian Lands.” On May 8, 2008, the

Secretary published in the Federal Register his final decision to

take the Tribe’s land into trust.2 The County filed an action

claiming that both agency actions were arbitrary and capricious

in violation of the Administrative Procedure Act, 5 U.S.C.

§ 706. The district court granted summary judgment in favor of

the agencies, ruling that the agencies had considered “the

necessary factors,” and the County appealed.

II.

The case boils down to several straightforward propositions

of administrative law. We have what is known as informal

2

The Secretary has stayed the land conveyance pending the

outcome of this litigation.

7

agency adjudication. Governing procedural rules, derived

mainly from § 555 of the APA, 5 U.S.C. § 555, and the Due

Process Clause, are few. Even so, agency decisions in informal

adjudication are subject to judicial review under § 706 of the

APA. See, e.g., Reliance Elec. Co. v. Consumer Prod. Safety

Comm’n, 924 F.2d 274, 277 (D.C. Cir. 1991). If the agency

decision is arbitrary, capricious or an abuse of discretion it must

be set aside.

Two legal propositions are important to the disposition of

this case.

First, under § 555(e), the agency must provide an interested

party – here Butte County – with a “brief statement of the

grounds for denial” of the party’s request. As this court held in

Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir.

2001), the agency must explain why it decided to act as it did.

The agency’s statement must be one of “reasoning”; it must not

be just a “conclusion”; it must “articulate a satisfactory

explanation” for its action. 259 F.3d at 737 (quoting Henry J.

Friendly, Chenery Revisited: Reflections on Reversal and

Remand of Administrative Orders, 1969 Duke L.J. 199, 222, and

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983)).

Second, an agency’s refusal to consider evidence bearing on

the issue before it constitutes arbitrary agency action within the

meaning of § 706. See, e.g., State Farm, 463 U.S. at 43;

Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009). This

proposition may be deduced from case law applying the

substantial evidence test, under which an agency cannot ignore

evidence contradicting its position. “The substantiality of

evidence must take into account whatever in the record fairly

detracts from its weight.” Universal Camera Corp. v.

NLRB, 340 U.S. 474, 487–88 (1951). Although we are dealing

8

with the question whether agency action is arbitrary or

capricious, “in their application to the requirement of factual

support the substantial evidence test and the arbitrary or

capricious test are one and the same.” Ass’n of Data Processing

Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys., 745

F.2d 677, 683 (D.C. Cir. 1984); accord Am. Radio Relay

League, Inc. v. FCC, 524 F.3d 227, 243 (D.C. Cir. 2008).

The Interior Department managed to violate the minimal

procedural requirements § 555(e) imposed. When Butte County

furnished the Interior Secretary’s office with a copy of the

Beckham Report and gave numerous reasons why the Tribe’s

land did not constitute “restored land,” that issue was still

pending before the Secretary. The Secretary’s final

determination did not come until two years later, on March 14,

2008.3 Yet the entirety of Interior’s response to Butte County

was this: “We are not inclined to revisit this decision [the

opinion of the Gaming Commission] now because the Office of

the Solicitor reviewed this matter in 2003, and concurred in the

NIGC’s determination of March 14, 2003.”

This response violates § 555(e) for the same reason the

response in Tourus Records violated that provision. The

response “provides no basis upon which we could conclude that

3

According to agency guidelines, whether lands qualify as

restored “is a decision made by the Secretary when he or she decides

to take land into trust for gaming”; Indian lands opinions are prepared

because the agencies are “in need, from time to time, for legal advice.”

See Memorandum of Agreement Between the National Indian Gaming

Commission and the Department of the Interior. Indian lands opinions

are “advisory in nature and thus do not legally bind the persons vested

with the authority to make final agency decisions.” See Gaming on

Trust Lands Acquired After October 17, 1988, 73 Fed. Reg. 29,354,

29,372 (May 20, 2008).

9

it was the product of reasoned decisionmaking.” 259 F.3d at

737. It had all the explanatory power of the reply of Bartelby

the Scrivener to his employer: “I would prefer not to.”4 Which

is to say, it provided no explanation.

Interior’s response was also arbitrary. Reasoned

decisionmaking is not a procedural requirement. Cross-Sound

Ferry Servs., Inc. v. ICC, 738 F.2d 481, 487 (D.C. Cir. 1984).

It stems directly from § 706 of the APA. That much was made

clear in another informal adjudication case – Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

Interior’s response speaks as if the Secretary had already

decided the issues – “We are not inclined to revisit” the matter

– when in fact the matter remained pending. The rest of the

response is senseless. So what if the Solicitor had reviewed the

Gaming Commission’s decision in 2003 and agreed with it?

The Secretary had yet to decide whether he agreed, which is

what counted.5 The very point of Butte County’s submission

4

The first of many such exchanges continued thus:

“Prefer not to,” echoed I, rising in high excitement, and

crossing the room with a stride. “What do you mean? Are you moon-

struck? I want you to help me compare this sheet here — take it,” and

I thrust it towards him.

“I would prefer not to,” said he.

Herman Melville, Bartleby, the Scrivener: A Story of Wall

Street 10 (Dover 1990) (1853).

5

It is not correct to say, as the dissent does, that by the time

the County submitted its letter, the issue had been decided and that the

County was asking the Secretary to “reopen” the matter. Dissenting

Op. at 10. The fact is that the Secretary did not make a decision until

two years after the County sent the letter. (The determination in this

case was actually made by the Assistant Secretary – Indian Affairs, to

10

was that the information it submitted called into doubt the

judgment of the Gaming Commission. To refuse to evaluate

that information because the Solicitor – who never looked at it

– agreed with the Gaming Commission is totally irrational.

All that remains is Interior’s argument that several

statements in an environmental assessment6 supplied the missing

reasoning and showed that the Secretary in fact did take into

account the County’s evidentiary submission. The

environmental assessment came after Interior had advised the

County that it would not revisit the restored lands question.

There is nothing to indicate that it changed its mind; in fact the

environmental assessment relied on the response to the County

attorney. And it added that whether the Tribe’s newly-acquired

lands qualified as restored lands was irrelevant to the question

being addressed – namely, whether the Secretary’s taking the

lands into trust to allow the Tribe to operate a casino there

would have a significant environmental impact. The only other

point in the environmental assessment was that Interior could

not rescind the federally-recognized status of the Tribe. This

comment and the others were responsive to an August 2006

letter from a Butte County administrator dealing with

environmental issues. But the comment was not responsive to

the arguments raised in the County attorney’s letter regarding

restoration of the lands.

whom the Secretary had delegated authority. See 209 Departmental

Manual 8.1. The Solicitor may have made up his mind but the

Secretary did not delegate decisionmaking authority to him. See note

3, supra.)

6

Environmental assessments are done to determine whether

the agency needs to prepare an environmental impact statement for

major federal action pursuant to the National Environmental Policy

Act, 42 U.S.C. § 4232(C). See Humane Soc. of the United States, 840

F.2d 45, 61–62 (D.C. Cir. 1988).

11

According to our dissenting colleague, the environmental

assessment “indicated that Interior understood the County and

the Beckham Report to be denying the Tribe’s existence at the

Chico Rancheria on the thesis that the ‘modern’ Tribe had no

connection with the ‘historical’ Mechoopda Tribe that occupied

vast areas of Butte County and hence had no historical

connection to [the historical tribe’s] land.” Dissenting Op. at 12.

But the County attorney’s letter submitted with the Beckham

Report clearly states that the County challenged Coleman’s

restored lands opinion and “[did] not contest the Mechoopda’s

federal recognition.” Rather, it argued that “the only land ever

occupied by the people who ultimately were recognized as a

tribe was the Bidwell Ranch property . . . . [T]he tribal members

cannot demonstrate any ties or connections to any other

property.” The thesis of the Beckham Report, as the dissent

appears to recognize at one point, goes entirely to the restored

lands issue by supporting the County’s argument that the Tribe

had no connection to any land other than its former rancheria.

The later letter from the Butte County administrator did, in fact,

challenge the Tribe’s status, which explains why the

environmental assessment advised the County that recognition

was irreversible. But that point does not speak at all to the

Tribe’s historic connection with the land in question.

Our dissenting colleague provides her own analysis of the

Beckham Report and concludes that it does not undermine the

evidence the Tribe submitted. We are not so sure, but that is not

the point. An “agency’s action must be upheld, if at all, on the

basis articulated by the agency itself.” State Farm, 463 U.S. at

50 (citing SEC v. Chenery, 332 U.S. 194, 196–97 (1947)). The

Secretary mentioned none of the dissent’s reasons for rejecting

the Beckham Report. The Secretary simply refused to give the

County an audience.

12

For all of these reasons, we set aside the Secretary’s final

action to take the Tribe’s lands into trust.7 The case is remanded

for further proceedings consistent with this opinion.

So Ordered.

7

The County also asks us to set aside the Gaming

Commission’s approval of the Tribe’s gaming ordinance. The theory

apparently is that in approving the ordinance, the Commission

determined that the Tribe’s land qualified as restored land. But the

Commission’s letter of approval, which came well before the

Secretary’s final decision regarding the land, belies this theory. The

letter simply stated that the Commission approved the ordinance “only

for gaming on Indian Lands,” without stating whether the land the

Tribe had purchased would wind up in that category. In light of our

decision vacating the Secretary’s land restoration determination, the

Commission’s approval therefore has no effect and we see no reason

to vacate it. The dissent apparently agrees.

ROGERS, Circuit Judge, dissenting: Congress determined in

enacting the Indian Gaming Regulatory Act (“IGRA”) that

Indian tribes restored to federal recognition may be eligible for

a restoration of lands on which gaming is permitted. 25 U.S.C.

§ 2719(b)(1)(B)(iii); see also id. § 465. At issue is whether the

decisions of the Secretary of the Interior and the National Indian

Gaming Commission (“NIGC”) granting the Mechoopda Tribe’s

application for a restoration of lands and for gaming on those

lands were arbitrary and capricious. A review of the

administrative record indicates these decisions are reasonable

and supported by substantial evidence of the Tribe’s ample

historical and cultural connections to land at issue (the “Chico

parcel”). The record demonstrates that the Secretary considered

Butte County’s views and its 2006 report and explained why he

was not inclined to revisit the 2003 determination by the NIGC

and Interior’s Solicitor that the Chico parcel would qualify as

restored lands. The Secretary’s rationale is self-explanatory: The

County’s report addressed only a narrow aspect of the Tribe’s

history and did not challenge the expert studies on which 2003

determination relied in addressing the Tribe’s full history. The

Secretary’s rationale was elaborated in contemporaneous agency

memoranda when the Assistant Secretary for Indian Affairs, who

made the decision on behalf of the Secretary to approve the

Tribe’s application to take the Chico parcel into trust as a

restoration of lands, concluded that the County sought to deprive

a federally recognized Tribe of rights protected by law.

Accordingly, because as Tourus Records, Inc. v. DEA, 259 F.3d

731 (D.C. Cir. 2001), instructs, the Secretary neither violated the

requirements of 5 U.S.C. § 555(e) nor ignored the County’s

views or its 2006 report, and because the challenged decisions

are supported by substantial evidence in the record, I would

affirm the grant of summary judgment to the Secretary, the

NIGC, and the Tribe, and I respectfully dissent.

2

I.

The background to the Tribe’s application to the Secretary

to take the Chico parcel into trust pursuant to section 5 of the

Indian Reorganization Act (“IRA”), 25 U.S.C. § 465, sets the

context for the County’s request to the Secretary on June 16,

2006 and for the Secretary’s response. The applicable statutes

required the Secretary to determine whether the Chico parcel

qualified as a “restoration of lands” allowing gaming under

section 20 of the IGRA, 25 U.S.C. § 2719(b)(1)(B)(iii). In the

Tribe’s case, Interior’s Office of the Solicitor requested that

NIGC assume primary responsibility for providing a legal

opinion on this question. The Secretary also had to examine the

environmental effects of taking the Chico parcel into trust under

the National Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321–4370f. Only if the “restoration of lands” and

environmental determinations favored granting the Tribe’s

application could the Secretary act under the IRA to approve the

Tribe’s application to take the Chico parcel into trust for, in part,

casino gaming. See TOMAC, Taxpayers of Mich. Against

Casinos v. Norton, 433 F.3d 852, 856–57 (D.C. Cir. 2006). In

“mak[ing] any decision or determination . . . with respect to a

federally recognized Indian tribe,” the Secretary could not

subclassify a tribe by denying it privileges and immunities

3

available to other federally recognized tribes. 25 U.S.C.

§ 476(f).1

The County has long been involved with Interior regarding

the Tribe’s efforts to locate a parcel of land qualifying as a

“restoration of lands” under section 20 of the IGRA. As early as

2002, when Interior was considering the “restoration of lands”

determination, a member of the Butte County Board of

Supervisors had written to the NIGC urging the Secretary to take

the Chico parcel into trust because the Tribe “has historical and

cultural ties to the land planned for the reservation,” stating that

“[i]t was part of a large area that was to be deeded to the

Mechoopda under treaties signed in the mid-1800s,” and that the

Tribe’s proposed casino on the Chico parcel “would allow them

to reestablish a connection to the soil of their ancestors.” Letter

from Curt Josiassen, Member of the Butte County Board of

Supervisors (July 26, 2002). The letter also referenced the fact

that the County and the Tribe had discussed the proposed gaming

site in a series of meetings. Articles in Butte County newspapers

emphasized the Tribe’s connection to the Chico parcel. See, e.g.,

Editorial, It’s a Gamble, but at Least It’s a Chance, THE

ENTERPRISE–RECORD, Chico, CA, Apr. 9, 2002 (“Chico and

1

Section 476(f) provides:

Departments or agencies . . . shall not promulgate any

regulation or make any decision or determination . . . with

respect to a federally recognized Indian tribe that classifies,

enhances, or diminishes the privileges and immunities

available to the Indian tribe relative to other federally

recognized tribes by virtue of their status as Indian tribes.

25 U.S.C. § 476(f). See also 25 U.S.C. § 476(g); 25 U.S.C. § 479a,

Pub. L. 103-454, 108 Stat. 4791 Note (1994); 70 Fed. Reg. 71,194,

71,195 (Nov. 25, 2005).

4

much of Butte County is literally built on the bones of the

Mechoopda.”).

The Tribe was originally federally recognized in the Treaty

of 1851, in which the United States promised to the Tribe land

located near the ranch of General John Bidwell.2 However, the

Treaty was never ratified and the land was not turned over to the

Tribe. See Anne H. Currie, Bidwell Rancheria, 36 CAL. HIST.

SOC’Y Q. 313, 315–16 (Dec. 1957). As a result of a change in

federal Indian policy and law, the Tribe’s federal recognition was

withdrawn in 19673 and assets of its rancheria were distributed.

See 32 Fed. Reg. 7981, 7981–82 (June 2, 1967). The Tribe sued

and in 1992 was reinstated to its former federal status as part of

a stipulated judgment between the Tribe, the United States, and

the City of Chico in Butte County, California. See Notice of

Reinstatement to Former Status for the Mechoopda Indian Tribe

of the Chico Rancheria, 57 Fed. Reg. 19,133 (May 4, 1992);

Order for Entry of Judgment and Judgment, Scotts Valley Band

of Pomo Indians of the Sugar Bowl Rancheria, et al. v. United

States, No. C-86-3660-VRW (N.D. Cal. 1992). The Tribe’s

attempt to have the Secretary take a parcel of land into trust in

1996 failed under the Secretary’s then–interpretation of section

20 of the IGRA. However, after litigation required the Secretary

to adopt a broader interpretation, the Tribe requested the

Secretary to take the Chico parcel into trust in November 2001,

finished acquiring the Chico parcel in December 2001, and on

March 26, 2002, requested the NIGC to determine whether the

2

See Treaty Made and Concluded at Bidwell’s Ranch, on

Chico Creek, August 1, 1851, Between O.M. Wozencraft, United

States Indian Agent, and the Chiefs, Captains and Head Men of the

Mi-Chop-Da, Es-Kuin, etc., Tribes of Indians.

3

See California Rancheria Act, Pub. L. No. 85-671, 72 Stat.

619 (1958), amended by Pub. L. No. 88-419, 78 Stat. 390 (1964).

5

Chico parcel would qualify as a gaming site under the restoration

of lands provisions of section 20 of the IGRA.

The Tribe’s historical status with respect to the Chico parcel

was confirmed in a comprehensive determination by the NIGC

in 2003 in which Interior’s Solicitor concurred. The 2003

determination concluded that the Tribe had proven its historical

and cultural connection to the Chico parcel and that the parcel

qualified as restored Indian lands under IGRA and NIGC

regulations and should be taken into trust. See NIGC 2003

Determination at 10–11, 12 (Mar. 14, 2003). The determination

considered the factual circumstances of the Tribe’s acquisition

of the Chico parcel, the location of the Chico parcel (about ten

miles from the Tribe’s former rancheria on the Bidwell ranch,

the “Chico Rancheria”), and the Tribe’s historical and cultural

nexus to it as well as the temporal relationship between the

Tribe’s restoration to federal recognition in 1992 and the Tribe’s

acquisition of the Chico parcel in 2001, concluding that all of

these factors supported finding that taking the Chico parcel into

trust would constitute a “restoration of lands” to the Tribe for

purposes of IGRA section 20. In reaching this conclusion the

determination relied on the key studies of the origins of the

Tribe. These included the field notes of ethnologist C. Hart

Merriam, who had interviewed Chico Rancheria residents in

1903, 1919, and 1923 regarding the locations of Mechoopda

villages; the 2001 declaration of Craig Bates, the curator of

ethnography for Yosemite National Park — who had researched

and published over one hundred articles and papers on Native

Americans, sixteen of which directly related to the history and

culture of the Maidu Indians of California, including the

Mechoopda Tribe of Chico Rancheria — that the Tribe is the

sole surviving group of the Northwestern Valley Maidu Indians

and has historical and cultural connections to the Chico parcel;

and reports prepared in 2002 by ethnographer and historian Brian

Bibby, an expert on California Indian communities, describing

6

connections among the Tribe, the Chico parcel, and the historical

villages of the Mechoopda. The 2003 determination noted that

the Chico parcel was within the boundaries of historical

Mechoopda village locations and within the boundaries of the

land promised to the Mechoopda in the unratified Treaty of

1851.

Also part of the administrative record was the Currie report,

published in 1957 in the California Historical Society Quarterly,

tracing the history of the Mechoopda Tribe since 1849, when

General John Bidwell purchased 22,000 acres of land including

land the Mechoopda Tribe occupied. See also Editorial, THE

ENTERPRISE–RECORD, Apr. 9, 2002 (“The Mechoopda did most

of the mining work that made John Bidwell rich and did much of

the work on his ranch that allowed him to prosper.”). The 2003

determination explained that although General and Mrs. Bidwell

had established a Mechoopda Indian village for their Indian

employees, and Mrs. Bidwell had deeded a 26-acre rancheria in

trust for the Tribe, this land was lost after the Tribe’s federal

recognition was terminated in 1967, and that the city of Chico,

California now occupies the site of the Tribe’s former rancheria.

Further, the 2003 determination noted that the 1992 stipulated

judgment stated the Tribe could not attempt to reestablish the

boundaries of its former rancheria.

The Tribe formally applied to the Secretary on March 19,

2004 to take the Chico parcel into trust as restored lands under

IGRA section 20. On April 8, 2004, the Secretary issued notice

of and sought comment on the Tribe’s application to take the

Chico parcel into trust, requesting comments within thirty days

from numerous California state and county officials. See 25

C.F.R. § 151.10. On July 23, 2004 the County wrote the Tribe

that, in view of its discussions with the Tribe about mitigation

measures, the County “withdraws any formal concerns regarding

the proposed location of the casino and the placement of the 650

7

acres of land [i.e., the Chico parcel] into trust status.” Letter

from Paul McIntosh, Chief Administrative Officer for Butte

County, to Steve C. Santos, Tribal Chairman, Mechoopda Indian

Tribe of Chico Rancheria (July 23, 2004).

A year later, by letter of August 24, 2005 to the Secretary,

the NIGC, and the Solicitor’s Office, the Tribe expressed

concern that the County not “stall the Project” by delaying

agreement on mitigation measures. In a second letter to the

Secretary, dated October 25, 2005, the Tribe reported that after

five years of discussion about the Chico parcel and the Tribe’s

expenditure of over seven million dollars, the County was now

calling for the consideration of other sites.

On March 1, 2006, the County informed the Secretary that

it opposed development of a casino on the Chico parcel, noting

environmental objections. See Letter from Dennis Whittlesey,

Butte County Special Counsel for Gaming, to Gale Norton,

Secretary of the Interior (Mar. 1, 2006). However, three months

later the County shifted gears, challenging the Tribe’s existence

for the first time, and making a new request of the Secretary. It

is this request that underlies the County’s challenges to the

approval of the Tribe’s application to take the Chico parcel into

trust.

II.

By letter of June 16, 2006 to the Secretary, the Board of

Supervisors of Butte County asked the Secretary to “reject” the

legal determination made in 2003 by the NIGC and the Solicitor

that the Mechoopda Tribe is a historical tribe whose Chico parcel

qualifies to be taken into trust as restored lands. Informing the

Secretary that the County opposed the Tribe’s application for

restored lands, the County advised its position now was that “the

tribal members[’]” only “‘homeland’” was “the former Chico

8

Rancheria” at the Bidwell Ranch and they “cannot demonstrate

any ties or connections to any other property.” Letter from

Dennis Whittlesey, Butte County Special Counsel for Gaming,

to Dirk Kempthorne, Secretary of the Interior, at 5 (June 16,

2006) (“County Letter of June 2006”). The letter also stated:

Butte County does not contest the Mechoopda’s

federal recognition. Indeed, we acknowledge that the

Department of the Interior has the legal right under the

Indian Reorganization Act to extend federal recognition

to groups of disparate Indians residing in a common

place. However, the Mechoopda is not a historical tribe

as is documented by the Beckham Report. To the

contrary, it was a “Rancheria Tribe” and the only land

ever occupied by the people who ultimately were

recognized as a tribe was the Bidwell Ranch property

set aside for their residency by the Bidwells.

County Letter of June 2006 at 5.

The Beckham Report, dated January 2006, was submitted to

the Secretary on June 16, 2006, and forwarded by the County to

the NIGC on July 14, 2006. Prepared by Stephen Dow

Beckham, a history professor at Lewis & Clark College in

Portland, Oregon, the report addressed the Bidwells’ history,

including their efforts to protect Indians and provide lands for

them to live on, and the ancestry of the Indians working for them

who lived on the Chico Rancheria set aside for them by the

Bidwells. Beckham concluded those Indians were “never an

Indian tribe with a federal government-to-government

relationship,” County Letter of June 2006 at 5 (quoting the

Beckham Report at 50), and so were not a historical tribe with

ties to the historical Mechoopda. In contrast to the

comprehensive historical analysis of the Tribe by the NIGC and

the Solicitor in 2003, the Beckham Report focused on the Chico

9

Rancheria and did not address whether the Secretary should take

the Chico parcel into trust under section 5 of the IRA. The

Report also did not address the Bates, Bibby, or Currie studies

relied on in the 2003 determination. Neither did it mention the

Tribe’s original federal recognition in 1851. That is, Beckham

opined primarily that the Mechoopda’s inclusion of people of

mixed ancestry and surviving Indians from other Maidu villages

and tribes terminated tribal existence at the Chico Rancheria.

The Secretary responded to the County’s June 16, 2006

request by letter of August 28, 2006, from Acting Deputy

Assistant Secretary George T. Skibine. The Secretary

acknowledged the County’s opposition to the Tribe’s application

to take the Chico parcel into trust and recognized that the County

now was requesting the Secretary to reject the 2003

determination that the parcel would qualify as a “restoration of

lands” under IGRA section 20. The Secretary declined to do so:

“We are not inclined to revisit this decision now because the

Office of the Solicitor reviewed this matter in 2003, and

concurred in the NIGC’s determination of March 14, 2003.”

In Tourus Records, 259 F.3d 731, this court held that an

agency fulfills its obligation under 5 U.S.C. § 555(e)4 to provide

“a brief statement” of the grounds for denying an interested

party’s request where internal agency memoranda clarify the

4

Section 555(e) provides:

Prompt notice shall be given of the denial in whole or in part

of a written application, petition, or other request of an

interested person made in connection with any agency

proceeding. Except in affirming a prior denial or when the

denial is self-explanatory, the notice shall be accompanied by

a brief statement of the grounds for denial.

5 U.S.C. § 555(e).

10

agency’s conclusory denial, id. at 737 (quoting 5 U.S.C. §

555(e)), 739. The court explained that the requirement for an

agency to provide a “brief statement” serves two purposes: first,

to ensure that the agency has given careful consideration to the

request, and second, to give the party an opportunity to inform

the agency of any errors it may have made and to facilitate

judicial review. Id. at 737. The court emphasized, however, that

“nothing more than a ‘brief statement’ is necessary” as long as

the agency explains “why it chose to do what it did.” Id.

(internal quotation marks omitted). In that case the court held

the agency’s denial of an in forma pauperis request, challenged

as being arbitrary and capricious, would have been insufficient,

standing alone, because the conclusory declaration that the

requestor’s affidavit of indigency was “inadequately supported”

did not explain why the agency regarded the request as

unsupported and was not “‘self-explanatory,’ 5 U.S.C. § 555(e)”

from the statement’s context. Id. The agency’s statement of

denial “provide[d] no basis upon which [the court] could

conclude that it was the product of reasoned decisionmaking.”

Id. However, because internal memoranda “represent[ing] the

‘contemporaneous explanation of the agency decision’” clarified

the agency’s rationale, the court determined a remand was

unnecessary and affirmed the agency’s denial. Id. at 738

(quoting Camp v. Pitts, 411 U.S. 138, 143 (1973)). The same

analysis applies here.

Notwithstanding its brevity, the Secretary’s letter revealed,

on its face, familiarity with the substance of the Beckham Report

and recognition that the Beckham Report sought to reopen the

question of the Tribe’s historical status, a matter

comprehensively addressed in the 2003 determination. The

Secretary refuted the assertions by the County and the conclusion

of the Beckham Report — namely that the Tribe had no identity

as a tribe before its federal recognition in 1992, even on the

Chico Rancheria — by pointing to the 2003 determination,

11

which addressed the Chico Rancheria Indians’ status and the

broader reach of the Tribe’s history, including its federal

recognition in 1851, supra note 2. The laconic denial letter also

reflected the fact that the Beckham Report did not mention the

land being considered for trust status, instead challenging the

Tribe’s existence and the ability of Interior to restore any land at

all to the Tribe.

The rationale behind the Secretary’s decision is “self-

explanatory,” 5 U.S.C. § 555(e), upon comparing the 2003

determination and the Beckham Report. The Beckham Report

addressed only a portion of the Tribe’s historical record and did

not challenge, much less identify any deficiencies in, the expert

studies relied upon in the 2003 determination. The report also

did not refer to the Tribe’s broader history. For example, it

omitted any mention of the Tribe’s initial recognition in 1851,

even thought it took place at the Bidwell Ranch, supra note 2,

and it did not otherwise address the legal significance of that

status. Given the comprehensive analysis in 2003 based on

undisputed expert studies of the Tribe’s history and connection

to the Chico parcel, the County’s 2006 submission gave the

Secretary no reason to revisit that matter, particularly as the

County’s request was based in Interior’s view, as reflected in the

administrative record discussed infra, on the outlawed concept

of subcategories of federally recognized tribes, subcategories that

were thus beyond the Secretary’s authority to recognize. See

supra note 1. Rather, in view of the County’s previous efforts to

delay approval of the Tribe’s application, the Secretary had little

reason to conclude other than that the County’s latest attempt to

derail approval presented no basis for revisiting the matter

addressed three years earlier in the comprehensive determination

by the NIGC and the Solicitor.

Furthermore, the Secretary’s letter “does not stand as the

sole ‘explanation’ of the agency’s decisionmaking rationale.”

12

Tourus Records, 259 F.3d at 738. The rationale for the

Secretary’s decision not to revisit the matter, and instead to rely

on the comprehensive and effectively unchallenged 2003

determination by the NIGC and the Solicitor, was elaborated in

contemporaneous documents in the administrative record that

were relied upon by the Assistant Secretary for Indian Affairs

who, on behalf of the Secretary, made the decision to approve

the Tribe’s application. First, Interior’s response to comments

during the NEPA proceeding described the County’s position in

its August 11, 2006 letter, which restated the views expressed in

its June 16, 2006 letter, as “challeng[ing] the [revised

environmental assessment (“REA”)] project site’s historical and

cultural significance to the Mechoopda Tribe.” Response to

Comments at 10. This response indicated that Interior

understood the County and the Beckham Report to be denying

the Tribe’s existence at the Chico Rancheria on the thesis that the

“modern” Tribe had no connection with the “historical”

Mechoopda Tribe that occupied vast areas of Butte County and

hence had no historical connection to any land. The County’s

June 16, 2006 and February 15, 2008 letters to the Secretary, and

its August 11, 2006 letter to the Regional Director of Interior’s

Bureau of Indian Affairs, reaffirm the correctness of this

interpretation of the Beckham Report as seeking to parse the

Tribe’s existence in a manner that undermined its status as a

federally recognized tribe.

Second, the Response to Comments described the Beckham

Report, the 2003 determination, and the Secretary’s letter

declining to revisit that determination, concluding that the Tribe

is federally recognized and listed as such pursuant to federal

statute and that under a statute enacted in 1994 only Congress

can terminate that status. See Response to Comments at 10–11;

supra note 1. The response emphasized that the Beckham Report

was addressing “[i]ssues regarding tribal membership, historical

land ownership and aboriginal territory,” Response to Comments

13

at 10, that the Tribe is now federally recognized, that it “was first

recognized as a sovereign tribal entity in 1851, when the United

States first executed a treaty, never ratified, with the Tribe,” and

that only Congress can terminate the federal recognition of a

Tribe, id. at 11. This is a direct response to the assertions of the

County and the conclusion of the Beckham Report in 2006. The

response was prepared by Interior’s Pacific Regional Office, and

it was that office’s 2007 memorandum recommending that the

Chico parcel be taken into trust on which the Secretary, acting

through the Assistant Secretary for Indian Affairs, relied when

he approved on March 14, 2008 the Tribe’s application to take

the Chico parcel into trust as restored lands.

Thus, the “brief statement” in the Secretary’s August 28,

2006 letter responding to the County’s request was adequate

under 5 U.S.C. § 555(e), because it explained “why [the

Secretary] chose to do what [the Secretary] did,” Tourus

Records, 259 F.3d at 737 (internal quotation marks omitted), and

the rationale for the Secretary’s decision to rely on the 2003

determination was self-explanatory. The Beckham Report did

not purport to address the Tribe’s history comprehensively as did

the 2003 determination and did not suggest the expert studies on

which the 2003 determination relied were flawed. Although the

court “may not supply a reasoned basis for the agency’s action

that the agency itself has not given, SEC v. Chenery, 332 U.S.

194, 196 (1947),” the court “will uphold a decision of less than

ideal clarity if the agency’s path may reasonably be discerned.”

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419

U.S. 281, 286 (1974); Motor Vehicle Mfrs. Ass’n of the U.S. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Contemporaneous agency memoranda elaborated the Secretary’s

rationale, making explicit that what the County and the Beckham

Report were suggesting was that the Indians who lived on the

Chico Rancheria had no tribal existence and so could show no

connection to the Chico parcel or any other land, and thus that

14

the Secretary should reject the 2003 determination and treat the

federally recognized Tribe as entitled to diminished privileges

compared to other federally recognized tribes. The

administrative record further reveals that the Secretary

considered the County’s views and the Beckham Report in

issuing, through the Assistant Secretary for Indian Affairs, a

Finding of No Significant Impact (“FONSI”), stating that “[t]his

[FONSI] conclusion is based on the analysis contained in the

REA, public comments made on the REA, the response to those

comments, and the mitigation imposed.” Carl Artman, Assistant

Secretary for Indian Affairs, FONSI for the Proposed

Mechoopda Indian Tribe Chico Casino Fee-to-Trust Acquisition,

at 19 (Jan. 4, 2008) (emphasis added). Because the NEPA

process is a legal requirement with which the Secretary had to

comply, the statement that the Secretary based his conclusions on

the Response to Comments is not gratuitous.

The Secretary’s response to the County is consistent with

our precedent that an agency need not restart its analysis

whenever a new report is submitted. Cf. Appalachian Power Co.

v. EPA, 249 F.3d 1032, 1059 (D.C. Cir. 2001); Pers. Watercraft

Indus. Ass’n v. Dep’t of Commerce, 48 F.3d 540, 542–43 (D.C.

Cir. 1995). Otherwise, an agency could be “reasonably

concerned that an unyielding avalanche of information might

overwhelm an agency’s ability to reach a final decision,” Village

of Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006), or that

parties could “behave like Penelope,[5] unravelling each day’s

work to start the web again the next day,” Western Coal Traffic

5

So every day she wove on the great loom—

but every night by torchlight she unwove it;

and so for three years she deceived the Akhaians.

Homer, The Odyssey, Book II, lines 112-114 (Robert Fitzgerald trans.

1961).

15

League v. ICC, 735 F.2d 1408, 1411 (D.C. Cir. 1984). The

effect of the County’s 2006 submission of the Beckham Report

was to ask the Secretary to start the fee-to-trust process for the

Chico parcel all over again, when the record shows the County

had opportunities, and took advantage of them, to make its views

known before and after the 2003 legal determination was

rendered. Given the limited analysis in the Beckham Report, the

Secretary could reasonably decide, for the reasons the

contemporaneous administrative record reveals, to rely on the

expert evidence assembled by the NIGC in preparing the

comprehensive 2003 determination showing the Tribe’s

historical connection to the Chico parcel. See City of Roseville

v. Norton, 348 F.3d 1020, 1027 (D.C. Cir. 2003). Although the

Secretary did not publish his final decision of March 14, 2008 to

take the Chico parcel into trust until May 8, 2008, that did not

mean the County’s 2006 submissions required the Secretary, like

Penelope, to begin anew an examination of the issue of the

Tribe’s status as a historical tribe with connections to the Chico

parcel, a matter previously considered in a comprehensive

determination by the NIGC and the Solicitor that remained

effectively unchallenged.

III.

Construing the County’s June 16, 2006 letter as a challenge

to the restored lands determination of 2003, rather than to the

Tribe’s existence, the County fails to show that Interior’s

determination that the Mechoopda Tribe has a significant

historical and cultural nexus to the Chico parcel was arbitrary

and capricious. In this “‘classic example of a factual dispute the

resolution of which implicates substantial agency expertise,’” the

court “only inquire[s] whether the agencies have based their

policy choices on reasonable expert evidence,” and “because the

agencies have relied upon sufficient expert evidence to establish

a rational connection between the facts and the choice made, it

16

was not arbitrary and capricious for them” to weigh the

competing expert opinions as they did. Wis. Valley Improvement

Co. v. FERC, 236 F.3d 738, 747 (D.C. Cir. 2001) (quoting Marsh

v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989)) (internal

quotation marks and citation omitted). The Secretary and the

NIGC satisfied their obligations under the Administrative

Procedure Act, 5 U.S.C. § 706, by “enabl[ing] [the court] to see

what major issues of policy were ventilated . . . and why the

agency reacted to them as it did.” Milk Indus. Found. v.

Glickman, 132 F.3d 1467, 1476 (D.C. Cir. 1998) (quoting

Republican Nat’l Comm. v. Fed. Election Comm’n, 76 F.3d 400,

407 (D.C. Cir. 1996)) (ellipsis in original). The County failed to

show that the challenged decisions were not based on

consideration of the relevant factors, much less that its views or

the Beckham Report were ignored or unevaluated. See State

Farm, 463 U.S. at 43; cf., e.g., City of Waukesha v. EPA, 320

F.3d 228, 257–58 (D.C. Cir. 2003).

The County’s contentions reduce to an argument that the

Tribe, descending from Indians who worked for the Bidwells in

the mid-nineteenth century, lacks a connection to the historical

Mechoopda Tribe and thus lacks a connection to the Chico

parcel. The administrative record is replete with evidence that

establishes the Tribe is the historical Mechoopda tribe with the

requisite connections. The 2003 determination cited expert

reports and materials that the Beckham Report did not consider

or challenge, and the Beckham Report omitted mention of the

Tribe’s federal recognition in the unratified 1851 Treaty and its

significance. Neither Currie nor Bates nor Bibby, who reviewed

Merriam’s field work, concluded the Tribe had no relation to the

historical Mechoopda Tribe. These experts instead viewed the

Tribe as connected to the historical Mechoopda Tribe. The

County’s fundamental argument that the Tribe lost a connection

to the historical Mechoopda Tribe by incorporating people of

mixed race and Indians from Northwestern Valley Maidu

17

villages and other tribes finds no support in the law. See, e.g.,

City of Roseville, 348 F.3d at 1022. Moreover, the records cited

in the Beckham Report did not show that the Tribe included

people with no Indian ancestry (except for some spouses), but

rather that many tribal members identified their ancestors as

Mechoopda Tribe members or survivors of other Maidu tribes

from the region.

Looking to the full historical reach of the Mechoopda and

Northwestern Valley Maidu, rather than narrowly to the time at

the Chico Rancheria, was not arbitrary or capricious. See id. at

1027. In submitting the Beckham Report the County did not

suggest that it represented more than another view of a limited

aspect of the historical record considered in the 2003

determination by the NIGC and the Solicitor. Even in

challenging the Bibby Report in its August 11, 2006 letter, the

County cited only the Beckham Report and ignored the other

expert reports relied upon in the 2003 determination. Both the

Secretary’s August 28, 2006 letter and contemporaneous agency

memoranda revealed familiarity with the County’s views and the

substance of the Beckham Report, and the Secretary, through the

Assistant Secretary for Indian Affairs, in approving the Tribe’s

application relied on the agency commentary addressing the

report’s (and thus the County’s) approach. The Secretary and the

NIGC reasonably looked to the full history of the Mechoopda

and Northwestern Valley Maidu rather than simply the story of

the Chico Rancheria, as the Beckham Report did. See id. at

1027.

Accordingly, because the court, contrary to our precedent in

Tourus Records, in finding a violation of 5 U.S.C. § 555(e) turns

a blind eye to the evidence in the administrative record that

explains the Secretary’s decision not to revisit the matter

addressed in the 2003 determination, and because the challenged

decisions by the Secretary and the NIGC are supported by

18

substantial evidence in the record, I would affirm the grant of

summary judgment to the Secretary, the NIGC, and the Tribe,

and I respectfully dissent.