TOMAC v. Norton, Gale A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2005 Decided January 6, 2006

No. 05-5206

TOMAC, TAXPAYERS OF MICHIGAN AGAINST CASINOS,

A MICHIGAN NON-PROFIT CORPORATION,

APPELLANT

v.

GALE A. NORTON, IN HER OFFICIAL CAPACITY AS

SECRETARY OF THE UNITED STATES

DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00398)

Robert J. Jonker argued the cause for appellant. With him

on the brief were Daniel P. Ettinger, Joseph A. Kuiper, and

Rebecca A. Womeldorf.

Lisa E. Jones, Attorney, U.S. Department of Justice, argued

the cause for Federal Appellees. With her on the brief was

Elizabeth A. Peterson, Attorney.

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Kaighn Smith, Jr. argued the cause for Non-Federal

Appellees. With him on the brief were Matthew T. McGrath

and Cortney O. Morgan.

Before: GINSBURG, Chief Judge, RANDOLPH, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: The Pokagon Band of

Potawatomi Indians (“Pokagon Band” or “Tribe”) consists of

approximately 2,700 members. The Tribe has resided primarily

in its ancestral homeland in the St. Joseph River Valley in

southwestern Michigan and northern Indiana since at least 1634.

See 25 U.S.C. § 1300j (2000); S. REP. NO. 103-266, at 1 (1994).

After years of dealing with the United States in government-to-

government relations, the Tribe was administratively terminated

in 1935, when its application for recognition was denied under

the Indian Reorganization Act of 1934 (“IRA”), 48 Stat. 984

(codified as amended at 25 U.S.C. § 461 et seq. (2000)).

Thereafter, the Tribe made numerous attempts to reclaim its

recognition, and finally achieved that goal in 1994, with the

enactment of the Pokagon Restoration Act (“Restoration Act” or

“Act”), 25 U.S.C. § 1300j et seq. The Act restored federal

services to the Pokagon Band, but it provided no funding, so the

Tribe has been forced to seek ways to achieve economic self-

sufficiency.

The Tribe has determined that the most effective way to

generate revenue is to build and operate a gaming resort. To

that end, the Tribe signed a gaming compact with the State of

Michigan in 1997 and then purchased rights to the land

necessary for the project. Upon application to the Department

of Interior’s Bureau of Indian Affairs (“BIA” or “Bureau”), the

Secretary of the Interior (“Secretary”) agreed to take those lands

into trust under 25 U.S.C. § 1300j-5, which permits the

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Secretary to take land into trust for the purpose of becoming part

of the Tribe’s reservation.

The Bureau’s decision to take this land into trust is now

challenged by the Taxpayers of Michigan Against Casinos

(“TOMAC”), a group that includes residents who live adjacent

to the proposed casino site. In three decisions, the District Court

issued judgments for the Department of the Interior (“Interior”)

on each of TOMAC’s claims. The District Court held, inter

alia, that: (1) BIA reasonably concluded that it only had to

prepare an environmental assessment (“EA”) and not an

environmental impact statement (“EIS”) under the National

Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§

4321-4347, TOMAC v. Norton, No. Civ.A.01-0398, 2005 WL

2375171, at *6 (D.D.C. Mar. 24, 2005) (“TOMAC III”); (2) the

Pokagon Band fell within the “restored lands exception” of the

Indian Gaming Regulatory Act (“IGRA”), because it was

“restored” to federal recognition under the Restoration Act,

TOMAC v. Norton, 193 F. Supp. 2d 182, 192-94 (D.D.C. 2002)

(“TOMAC I”); and (3) Congress’s delegation to the Secretary to

“acquire real property . . . . in trust for the benefit of the Band”

under the Restoration Act, 25 U.S.C. § 1300j-5, was not an

unlawful delegation of legislative power, TOMAC I, 193 F.

Supp. 2d at 191-92.

TOMAC now appeals from the District Court’s successive

grants of summary judgment to Interior, challenging each of the

aforementioned findings. We conclude that TOMAC’s claims

have no merit and affirm the District Court’s grants of summary

judgment.

I. BACKGROUND

A. The Pokagon Band of Potawatomi Indians

The Pokagon Band has a long history of dealings with the

United States government, including involvement in 11 treaties

with the federal government from 1795-1833. See 25 U.S.C. §

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1300j. One such treaty, the Treaty of Chicago, 7 Stat. 431

(1833), involved the ceding of 5,000,000 acres by several tribes

to the federal government in 1833 in exchange for a series of

payments and a tract of equal size west of the Mississippi River.

Hannahville Indian Cmty. v. United States, 4 Cl. Ct. 445, 447

(1983). While this agreement pushed many of the Potawatomi

bands west, the Pokagon Band held steadfast and negotiated a

supplement to the treaty, which gave them the right to remain in

their Michigan homeland. See id. at 447-48; S. REP. NO. 103-

266, at 2; H.R. REP. NO. 103-620, at 2 (1994).

In 1935, the Pokagon Band petitioned for reorganization

under the newly minted IRA, which terminated the federal

government’s allotment policy and restored to Indians the

management of their assets. While tribal governments located

in Michigan’s upper peninsula were granted federal services

under the IRA, those in its lower peninsula, such as the Pokagon

Band, were denied services and benefits due to an administrative

decision predicated on the “misguided assumption that residence

on trust lands held in common for the Band was required for

reorganization and the fact that appropriations to purchase such

lands had run out.” H.R. REP. NO. 103-620, at 5; see also S.

REP. NO. 103-266, at 3-4. According to the Senate committee

report leading to the passage of the Restoration Act authored

nearly 60 years later, the Pokagon Band “was unfairly

terminated as a result of both faulty and inconsistent

administrative decisions contrary to the intent of the Congress,

federal Indian law and the trust responsibility of the United

States.” S. REP. NO. 103-266, at 6.

To remedy this injustice, Congress enacted the Restoration

Act in 1994. The Act’s specific purpose is to “reaffirm and

clarify the federal relationship of the Pokagon Band of

Potawatomi Indians of Michigan as a distinct federally

recognized Indian tribe, to reaffirm the jurisdiction and other

rights of the tribe, provide for the establishment of a trust land

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base for the tribe,” and “authorize the organization of the tribe

and for other purposes.” Id. at 1. The Tribe’s status as a

federally recognized tribe was reestablished, 25 U.S.C. §

1300j-1, thus bringing the Tribe within the umbrella of federal

services and benefits extended to other federally recognized

tribes, 25 U.S.C. § 1300j-2. In recognition of its ancestral

homelands and the need for the Tribe to establish a reservation

land base, Congress directed the Secretary to acquire real

property for the Tribe, by taking land in trust to become part of

its reservation. 25 U.S.C. § 1300j-5. Congress also delineated

a 10-county area – encompassing the Tribe’s current and

ancestral homeland – where it is eligible to receive the federal

services that accompany recognition. See 25 U.S.C. § 1300j-6.

The Restoration Act, however, did not provide any funding,

so the Tribe had to consider economic development projects that

would enable it both to restore its land base and to fund tribal

governmental activities and services. The Tribe concluded that

the only economic development that would attract sufficient

capital would be a gaming and recreational facility.

Consequently, in 1997 the Tribe entered into a compact with the

State of Michigan in accordance with 25 U.S.C. § 2710(d)

(2000) to permit the Tribe to conduct Class III (casino-style)

gaming on “eligible Indian lands.” See Compact Between the

Pokagon Band of Potawatomi Indians and the State of Michigan

Providing for the Conduct of Tribal Class III Gaming by the

Pokagon Band of Potawatomi Indians at 2-3 (Jan. 29, 1997),

reprinted in Pokagon Band of Potawatomi Indians Township of

New Buffalo Trust Consolidation Site Trust Application (Mar.

2000), app. 3 (“Trust App.”), Joint Appendix (“J.A.”) 1324.

Interior approved this agreement on February 18, 1999. Indian

Gaming, 64 Fed. Reg. 8,111 (Feb. 18, 1999).

The Tribe also entered into a “Memorandum of

Understanding” (“Memorandum”) with the Secretary, which

spelled out the amount of land to be taken into trust under the

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Restoration Act, the area in which that land was to be located,

and the preference that, whenever possible, the land acquired

would be contiguous. Memorandum of Understanding (Jan. 11,

1999), reprinted in Trust App., supra, tab 2, J.A. 1321. In

addition, the Secretary confirmed that the Pokagon Band is a

“restored” tribe within the meaning of § 2719(b)(1)(B) of IGRA,

making it eligible for Class III gaming without having to

undertake the more burdensome route to approval under §

2719(b)(1)(A). See 25 U.S.C. § 2719(b)(1)(A), (B).

The Tribe subsequently purchased in fee 26 separate and

contiguous parcels of land across 675 acres within New Buffalo

Township in Berrien County, Michigan, and then submitted an

application to BIA requesting that the United States take the

land into trust for the Tribe. A portion of that land would house

the 110,000 square-foot gaming facility, five or six restaurants,

a variety of gift shops, a child care facility, a 200-room first

class hotel, and a surface parking lot and parking garage.

Before proceeding with the project, the Bureau was required

under NEPA to assess the potential environmental impacts of

the gaming resort. NEPA obligates an agency to prepare a

detailed, comprehensive EIS if its proposal constitutes a “major

Federal action[] significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)(C) (2000). To determine

what actions meet the § 4332(2)(C) threshold, the Bureau has

adopted as advisory guidelines the regulations of the Council of

Environmental Quality (“CEQ”), which was established by

NEPA to interpret the statute. See DOT v. Pub. Citizen, 541

U.S. 752, 757 (2004); NEPA Handbook, Bureau of Indian

Affairs Manual Supplement 1, §§ 1.1(B), 1.2, 1.3, J.A. 730-31.

Those regulations permit agencies to issue first an EA, which is

a “less detailed document which may be used to determine

whether or not an EIS is required.” Id. § 2.2, J.A. 736. If, based

on the EA, the agency finds that an EIS is not necessary, the

Bureau may issue a “Finding Of No Significant Impact”

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(“FONSI”), which “fulfills the documentation requirements

established by the CEQ regulations.” Id.; see 40 C.F.R. §§

1501.4(e), 1508.9, 1508.13 (2005).

After working closely with the Tribe, an environmental

consultant, and other federal agencies including the United

States Fish and Wildlife Service and the Environmental

Protection Agency (“EPA”) for several months, BIA issued a

draft EA of the casino project on November 21, 2000 and made

it available for a 30-day comment period. In response to the

comments received, BIA prepared a revised and modified

assessment in January 2001. The EA analyzed a range of

potential impacts of the proposed trust acquisition on geology

and soils, prime and unique farmland, groundwater, floodplains,

wetlands, wildlife habitat, vegetation, threatened and

endangered species, air quality, noise, and cultural resources.

See EA (Jan. 2001) at 17-30, J.A. 329-42. It also addressed

potential impacts on socioeconomics and other issues related to

growth induced by the proposed facility. Id. at 30-45, J.A. 342-

57.

On January 19, 2001, BIA issued a FONSI for the trust

acquisition. The Bureau explained that implementation of the

proposed actions with corresponding mitigation measures, “will

have no significant impact on the quality of the human

environment” within the meaning of NEPA. Proposed Pokagon

Band of Potawatomi Indians of Michigan Gaming Facility,

FONSI, BIA (Jan. 19, 2001), J.A. 308. Thus, an EIS was not

warranted. BIA subsequently issued a “Notice of Intent to Take

Land into Trust” on January 22, 2001.

B. Procedural History

On February 21, 2001, TOMAC filed a complaint in the

United States District Court for the District of Columbia seeking

injunctive and declaratory relief against Interior on three

grounds that are relevant to this appeal. TOMAC first alleged

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that the Secretary’s trust acquisition decision violated NEPA,

because the gaming and recreation complex will significantly

impact the area surrounding the site. Second, TOMAC asserted

that the Secretary violated IGRA, because the Restoration Act

did not “restore” the Tribe within the meaning of IGRA such

that the Tribe qualified for the “restored land exception” to

IGRA’s gaming ban on lands acquired after October 17, 1988.

Finally, TOMAC contended that Congress unconstitutionally

delegated to the Secretary unlimited authority to acquire land for

the Tribe under the Restoration Act.

In response to TOMAC’s claims, BIA challenged

TOMAC’s Article III and prudential standing to bring its NEPA

and IGRA claims, and also moved to dismiss TOMAC’s IGRA

and constitutional claims for failure to a state claim. In the

alternative, BIA moved for summary judgment. The City and

Township of New Buffalo and the Tribe moved and were

permitted to intervene in the proceedings on behalf of the

Government. Thereafter, the United States and TOMAC entered

into a stipulation whereby the United States agreed not to take

the land into trust during the pendency of the District Court

litigation (which has been renewed for the purposes of this

appeal).

On March 29, 2002, the District Court rejected BIA’s

standing contentions, TOMAC I, 193 F. Supp. 2d at 188, 190-91,

but granted summary judgment against TOMAC on its IGRA

and nondelegation claims, id. at 191-94. In a separate decision,

the District Court considered TOMAC’s NEPA challenges

concerning wetlands, threatened species, endangered species,

and impacts from growth and development. TOMAC v. Norton,

240 F. Supp. 2d 45, 48-52 (D.D.C. 2003) (“TOMAC II”).

Regarding the first three issues, the District Court concluded that

BIA sought out and properly considered the available data,

thereby fulfilling its responsibility under NEPA. Id. at 48-50.

The District Court did not find that BIA engaged in the same

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level of analysis, however, with respect to the indirect effects

related to growth induced by the gaming and recreation

complex. The trial court noted that while this case was “a much

closer call than cases in which agencies simply failed to address

growth inducing effects at all,” BIA failed both to “address

related effects on air and water and other natural systems,

including ecosystems,” and to explain clearly its “conclusion

that an increase of 5,600 new jobs, 800 new employees and their

families, and related changes in physical development and

natural resource use will not have a significant effect on a

community of 4,600.” Id. at 51-52 (quotation marks and citation

omitted). Based on these flaws, the District Court temporarily

enjoined BIA from taking the land into trust, and remanded the

EA to the agency “for such further evaluation and elaboration of

its reasoning as BIA desires to submit concerning secondary

growth issues.” Id. at 52.

C. Supplement to the EA

On remand, BIA prepared a supplement to its EA (“EA

Supplement”) to update and expand its earlier analysis and to

focus on the District Court’s secondary impact concerns. See

EA Supplement (Aug. 2003), J.A. 776. In addition to

identifying the specific geographic areas potentially impacted by

the gaming resort, Interior predicted the pattern and extent of

casino-induced residential and commercial growth by analyzing,

among other things, zoning laws, permitting requirements,

economic forecasts, demographics, available utilities,

environmental regulations, and land use practices. These

development predictions were used to analyze potential impacts

on natural and cultural resources including the water supply,

sewer system, air quality, transportation and traffic, and public

safety. The Bureau also evaluated potential “cumulative

impacts” of the gaming resort in combination with other past,

present, and potential future operations in the area, and provided

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detailed mitigation measures to address any potential significant

impacts.

The Bureau concluded that the only potentially significant

impact from induced growth was an increased demand for water

and sewage services which might tax the existing capacities of

those systems. In both cases, the Bureau found that the Tribe’s

agreement to cover significant portions of the costs to build a

new water plant and distribution system, as well as to install

oversized sewer lines, sufficiently mitigated any potential harm.

Particularly germane to this appeal is BIA’s analysis of the

gaming resort’s direct and indirect impacts on local air quality.

In TOMAC II, the District Court found the EA’s analysis of the

project’s impact on air quality to be lacking, primarily because

BIA’s traffic study was insufficient. TOMAC II, 240 F. Supp.

2d at 51 (noting that the EA failed to estimate the impact of the

non-casino traffic growth generated by the 17% growth in

residency expected as a result of the project). In preparing its

EA Supplement, the Bureau commissioned Soil and Materials

Engineers, Inc. (“SME”) to prepare a revised air quality study.

In the revised assessment, BIA directed SME to broaden its

focus to capture the impact on air quality of the indirect

development activity as a result of the gaming resort. SME thus

examined four potential air quality impacts: (1) “vehicle

emissions resulting from increased traffic associated with

indirect development throughout the region,” (2) “stationary

source emissions from establishments that are anticipated to be

built in the region,” (3) “construction related emissions,” and (4)

“ambient air quality contaminants from facilities and activities

in the vicinity of the project site.” Report of Air Quality Impact

Assessment, Soil & Materials Engineers, Inc. at i (July 11,

2003), reprinted in EA Supplement, supra, at app. BB, J.A.

1105 (“SME Supplementary Report”).

SME employed the same methodology in the revised

analysis as it did in its original examination, using carbon

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monoxide as a predictive tool for meeting the then-existing

National Ambient Air Quality Standards (“NAAQS”) under the

Clean Air Act (“CAA”). Since carbon monoxide is more likely

than the other relevant contaminants (e.g., particulate matter,

nitrogen oxide, and hydrocarbons) to impact air quality, a

finding of de minimis carbon monoxide impact would indicate

that the other criteria air pollutants would likely be in

compliance. Based on SME’s updated study, BIA confirmed

that “[c]arbon monoxide and other NAAQS criteria air

pollutants expected to be produce[d] by the indirect effects from

the Project indicates that those air pollutants will be in

compliance with [then-existing] NAAQS standards.” EA

Supplement, supra, at 48, J.A. 825. In addition, SME concluded

that since ozone, hydrocarbons, and nitrogen oxide are “regional

in nature[,] . . . . meaningful evaluation” of their effects “on a

project-by-project basis is not practical.” SME Supplementary

Report, supra, at 8, J.A. 1113.

In both its EA and EA Supplement, the Bureau continued to

evaluate air quality impact based in part on EPA’s then-existing

more lenient 1-hour ozone standard. Under that standard,

Berrien County was considered an area of “attainment” – i.e., in

compliance with the CAA. While EPA had promulgated a more

rigorous 8-hour standard in 1997 that put Berrien County’s

attainment status in jeopardy, see National Ambient Air Quality

Standards for Ozone, 62 Fed. Reg. 38,856 (July 18, 1997)

(codified at 40 C.F.R. § 50.10 (2005)), on-going litigation left its

implementation in doubt at the time the EA was produced. See

Am. Trucking Ass’ns v. EPA, 283 F.3d 355 (D.C. Cir. 2002)

(“Am. Trucking I”); Am. Trucking Ass’ns v. EPA, 175 F.3d 1027,

reh’g granted in part and denied in part, 195 F.3d 4 (D.C. Cir.

1999), rev’d in part sub nom. Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) (“Am. Trucking II”). In addition, while

EPA’s 8-hour standard was upheld in 2002, Am. Trucking I, 283

F.3d at 379, Berrien County was not designated “nonattainment”

until June 15, 2004. See Air Quality Designations and

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Classifications for the 8-Hour Ozone National Ambient Air

Quality Standards, 69 Fed. Reg. 23,858, 23,910 (Apr. 30, 2004)

(to be codified at 40 C.F.R. pt. 81) (“8-Hour Standards”), which

was almost a year after SME’s second study was completed.

The Bureau suggested, however, that in the event that

Berrien County became designated an area of nonattainment

prior to project construction, “a General Conformity Analysis

would be required.” EA, supra, at 25, J.A. 337. A conformity

analysis, which is required by the CAA for federal actions

within nonattainment and maintenance areas, must demonstrate

how the actions conform to the existing State Implementation

Plan to remedy the air pollution problem. See 42 U.S.C. §

7506(c) (2000).

On November 20, 2003, based upon the analysis in the EA

and the EA Supplement, BIA issued a Revised FONSI, in which

it renewed its position that implementation of the proposed

action would have no significant impact on the human

environment and that an EIS was not required. Following this

issuance, Interior filed a renewed motion for summary judgment

and relief from the temporary injunction imposed by the District

Court. On March 24, 2005, the District Court issued an order

finding that Interior had “fully complied” with NEPA, and

granted its summary judgment motion and lifted the temporary

injunction. TOMAC III, 2005 WL 2375171, at *1. In granting

summary judgment for Interior, the District Court rejected

TOMAC’s claims that BIA had failed to provide an adequate

opportunity for public comment, id. at *2, and held that BIA

adequately addressed the impact of the project on air quality and

local water and sewer systems, as well as the “cumulative

impacts” of the gaming resort. Id. at *2-5.

TOMAC now appeals the District Court’s successive grants

of summary judgment to Interior. In turn, Interior and

intervenors renew their claims that TOMAC lacks standing.

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II. ANALYSIS

We note at the outset that we agree with the District Court’s

finding that TOMAC has Article III and prudential standing to

challenge BIA’s actions under both NEPA and IGRA. See Nat’l

Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S.

479, 492 (1998) (prudential standing); Fla. Audubon Soc’y v.

Bentsen, 94 F.3d 658, 672 (D.C. Cir. 1996) (en banc) (NEPA);

Humane Soc’y of the U.S. v. Hodel, 840 F.2d 45, 53-59 (D.C.

Cir. 1988) (germaneness). There is no serious question about

TOMAC’s standing that warrants further discussion by this

court.

Our review of the District Court’s grants of summary

judgment is de novo. George v. Leavitt, 407 F.3d 405, 410

(D.C. Cir. 2005).

A. Environmental Assessments

The court’s role in reviewing an agency’s decision not to

issue an EIS is a “limited” one, designed primarily to ensure

“that no arguably significant consequences have been ignored.”

Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d

256, 267 (D.C. Cir. 1988). The evaluation of the “‘impact’ of

those consequences on the ‘quality of the human environment,’

. . . is ‘left to the judgment of the agency.’” Id. (quoting Sierra

Club v. DOT, 753 F.2d 120, 128 (D.C. Cir. 1985)). This court

will overturn an agency’s decision to issue a FONSI – and

therefore not to prepare an EIS – only “if the decision was

arbitrary, capricious, or an abuse of discretion.” Sierra Club v.

Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983). When

examining a FONSI, our job is to determine whether the agency:

(1) has “‘accurately identified the relevant environmental

concern,’” (2) has taken a “‘hard look’” at the problem in

preparing its EA, (3) is able to make a convincing case for its

finding of no significant impact, and (4) has shown that even if

there is an impact of true significance, an EIS is unnecessary

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because “‘changes or safeguards in the project sufficiently

reduce the impact to a minimum.’” Town of Cave Creek v. FAA,

325 F.3d 320, 327 (D.C. Cir. 2003) (quoting Sierra Club v.

DOT, 753 F.2d at 127).

1. Public Comment

Before attacking the substance of the EA, TOMAC argues

that BIA’s decision not to afford an additional round of public

comment following the District Court’s remand precludes this

court from finding the Bureau’s ultimate action reasonable.

TOMAC asserts that CEQ regulations encourage public

involvement when preparing an EA, and points to BIA’s own

NEPA handbook which states that the public should have

“meaningful opportunities” for participation in BIA actions that

significantly affect them.

As an initial matter, we note that the binding effect of CEQ

regulations is far from clear. See City of Alexandria v. Slater,

198 F.3d 862, 866 n.3 (D.C. Cir. 1999) (stating that CEQ “has

no express regulatory authority under [NEPA],” as it was only

empowered to issue “binding” regulations by presidential

executive order). But see Andrus v. Sierra Club, 442 U.S. 347,

358 (1979) (noting that the CEQ’s NEPA interpretations are

entitled to “substantial deference”). Even so, nothing in the

CEQ regulations suggests that another comment round is

necessary following an agency’s issuance of a supplemental EA.

And two of our sister Circuits have found that public input

during the EA process is not required. See Alliance to Protect

Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 398 F.3d 105,

115 (1st Cir. 2005); Greater Yellowstone Coal. v. Flowers, 359

F.3d 1257, 1279 (10th Cir. 2004). In rejecting a party’s call for

an EIS, the Tenth Circuit noted that “NEPA’s public

involvement requirements are not as well defined when an

agency prepares only an EA and not an EIS.” Greater

Yellowstone Coal., 359 F.3d at 1279. The Tenth Circuit found

significant the comparison between 40 C.F.R. §§ 1503.1 and

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1503.4, which require agencies preparing an EIS to make an

initial draft available for public comment, and § 1501.4(b),

which only obligates agencies to “involve . . . the public, to the

extent practicable, in preparing [EAs],” and § 1501.4(e)(2),

which requires agencies to make a FONSI available for public

review prior to their final decision only in specific

circumstances that are not applicable here. Id. At a minimum,

this suggests that the agency has significant discretion in

determining when public comment is required with respect to

EAs.

The record here indicates that BIA sought comment on the

original draft EA and provided detailed responses to comments

it received. The EA Supplement merely amplified the issues

that had been addressed in BIA’s original 2001 EA, so the

agency reasonably concluded that further public comment was

unnecessary. On this record, we find no merit in TOMAC’s

claim that another round of public comment was required. BIA

acted appropriately given the prior public involvement, and no

statute or regulation requires anything more.

2. Size of the Project and Report

In contending that an EIS is in order, TOMAC first argues

that the sheer magnitude of the proposed gaming resort, as well

as the length and complexity of the resulting EA, indicates that

an EIS is necessary. In terms of the project’s size, TOMAC

avers that the anticipated arrival of 4.5 million visitors a year to

a rural community of less than 5,000 residents suggests that BIA

should produce an EIS. Similarly, TOMAC claims that because

BIA spent four-and-a-half years and generated almost 900 pages

of data and analysis examining the potential environmental

impacts of the proposed gaming resort, it is clear that an EIS is

needed. These claims miss their mark.

TOMAC offers no support for the proposition that an EIS

is required when a project reaches a certain size. The relevant

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benchmark is whether the federal action “significantly affect[s]

the quality of the human environment.” 42 U.S.C. § 4332(2)(C).

Large federal projects may, on the average, be more likely to

meet this threshold. But there is no categorical rule that sizable

federal undertakings always have a significant effect on the

quality of the human environment.

Similarly, the significant time and effort BIA has spent

preparing its EA does not alone prove that an EIS is obligatory.

TOMAC relies on the CEQ guidelines, which advise that an EA

should be no more than 10-15 pages in length. Br. of Plaintiff-

Appellant at 26 (citing Forty Most Asked Questions Concerning

CEQ’s National Environmental Policy Act Regulations, 46 Fed.

Reg. 18,026 (Mar. 23, 1981)). This guideline is not a binding

regulation, however. See Davis v. Mineta, 302 F.3d 1104, 1125

n.17 (10th Cir. 2002). The simple point here is that the length

of an EA has no bearing on the necessity of an EIS. See Sierra

Club v. Marsh, 769 F.2d 868, 875 (1st Cir. 1985) (“EA length,

complexity, and controversy . . . . do not by themselves show

that the EAs’ conclusion – ‘no significant impact’ – is correct,

nor do they show it is incorrect.”). “What ultimately determines

whether an EIS rather than an EA is required is the scope of the

project itself, not the length of the agency’s report.” Heartwood,

Inc. v. U.S. Forest Serv., 380 F.3d 428, 434 (8th Cir. 2004). The

opposite regime would create perverse incentives for agencies,

as it would only serve to “encourage agencies to produce

bare-bones EA’s.” Id.

3. Impact on Air Quality

As for the substance of BIA’s NEPA analysis, TOMAC

focuses its complaint on BIA’s decision not to address in detail

the gaming resort’s potential impact on air quality under the

impending 8-hour ozone NAAQS. TOMAC contends, and BIA

concedes, that the agency was aware at the time of the

preparation of its EA and EA Supplement that Berrien County

was likely to move from attainment to nonattainment under the

17

CAA. See EA, supra, at 25, J.A. 337. TOMAC argues that the

agency’s failure to act on this knowledge contradicts the District

Court’s finding that BIA took the requisite “hard look” at the

environmental impact, undermines BIA’s FONSI, and should

result in a court-ordered EIS.

This claim fails, however, because Berrien County’s

nonattainment designation was made long after the EA and EA

Supplement were completed. The EA was released in January

2001 and the EA Supplement was completed in August 2003.

Berrien County was not designated nonattainment, however,

until June 15, 2004. See 8-Hour Standards, 69 Fed. Reg. at

23,910. TOMAC points to nothing in NEPA itself or its

implementing regulations that suggests that a supplement to an

EA or FONSI is required when new information potentially

affecting the federal action in question is released.

Supplementation is only required under NEPA implementing

regulations in the context of an EIS. See 40 C.F.R. §

1502.9(c)(1)(ii) (2005) (stating that agencies “[s]hall prepare

supplements to either draft or final environmental impact

statements if . . . . [t]here are significant new circumstances or

information relevant to environmental concerns and bearing on

the proposed action or its impacts”). Furthermore, TOMAC

does not assert that the construction of the facility itself would

push the area into nonattainment. See 40 C.F.R. §

1508.27(b)(10). Therefore, even if we were to import §

1502.9(c)(1)(ii)’s requirement into the EA context, it is not clear

that a pre-project nonattainment designation qualifies as a

“significant new circumstance” for the purposes of determining

the project’s effect on the area’s air quality.

As the District Court noted, “reassessments must end at

some point, or NEPA simply becomes a tool to stall new

projects indefinitely, ‘render[ing] agency decisionmaking

intractable, always awaiting updated information only to find the

new information outdated by the time a decision is made.’”

18

TOMAC III, 2005 WL 2375171, at *4 (quoting Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 373 (1989)) (alteration in

TOMAC III). BIA undertook an extensive analysis of the air

quality impacts likely to occur based on the regime with which

it was faced, which is all that can reasonably be expected.

It is also noteworthy that BIA’s failure to address potential

nonattainment in the EA and EA Supplement does not mean that

the post-analysis nonattainment designation will go unexamined.

The CAA, and not NEPA, is the primary force guiding states

and localities into NAAQS compliance. As intervenors note,

under the CAA, the State of Michigan is required to comply

with EPA regulations governing attainment status. A

nonattainment designation will likely require the State’s own

assessment – a “conformity analysis” – of how Berrien County

will gain compliance. See 42 U.S.C. § 7506(c).

The other pieces of BIA’s air quality analysis are thorough

and reasonably conducted. The Bureau’s choice to model

primarily for carbon monoxide was reasonable, given that

carbon monoxide is the most likely priority pollutant to have a

significant impact on air quality. EPA also concurred with

BIA’s use of carbon monoxide as a screening tool. See Public

Comment Period & Responses to Comments at 15, EA, supra,

at app. U, J.A. 627.

Finally, there is nothing to indicate that BIA’s approach to

non-carbon monoxide impacts was other than sensible. The

Bureau concluded that “[d]ue to the regional nature of ozone,

hydrocarbon, and nitrogen oxide air quality concerns,

meaningful evaluation of these pollutants on a project-by-project

basis is not practical.” EA Supplement, supra, at 48, J.A. 825.

Ozone close to ground level, for example, “can be transported

long distances . . . impacting air quality downwind of the area of

formation.” SME Supplementary Report, supra, at 8, J.A. 1113.

In this case, given that most of the ozone in western Michigan

is attributable to transportation impacts from upwind cities such

19

as Gary, Chicago, and Milwaukee, BIA reasonably determined

that the traffic augmentation in Berrien County would not

significantly contribute to ozone levels in the area.

The Bureau’s thorough analysis of the conditions existing

at the time of its examinations demonstrates clearly that it took

a “hard look” at the project’s potential direct and indirect

impacts on local air quality. BIA was under no obligation to

hypothesize about future regulations. The agency’s handling of

the gaming resort’s potential impact on air quality was neither

arbitrary and capricious, nor an abuse of its discretion.

4. Cumulative Impacts

TOMAC next asserts that BIA’s EA Supplement ignores the

“cumulative impacts” of the gaming resort. NEPA’s

implementing regulations require an agency to evaluate

“cumulative impacts” along with the direct and indirect impacts

of a proposed action. See Grand Canyon Trust v. FAA, 290 F.3d

339, 341, 345 (D.C. Cir. 2002). A “cumulative impact” is “the

impact on the environment which results from the incremental

impact of the action when added to other past, present, and

reasonably foreseeable future actions regardless of what agency

. . . undertakes such other actions.” 40 C.F.R. § 1508.7. We

have held that a “meaningful cumulative impact analysis must

identify” five things: “(1) the area in which the effects of the

proposed project will be felt; (2) the impacts that are expected

in that area from the proposed project; (3) other actions – past,

present, and proposed, and reasonably foreseeable – that have

had or are expected to have impacts in the same area; (4) the

impacts or expected impacts from these other actions; and (5)

the overall impact that can be expected if the individual impacts

are allowed to accumulate.” Grand Canyon Trust, 290 F.3d at

345 (quotation and citation omitted). In other words, the agency

“cannot treat the identified environmental concern in a vacuum.”

Id. at 346.

20

Appellant appears to misunderstand the function of a

cumulative impacts analysis. TOMAC construes the

requirement to mean that BIA was required to consider the

“cumulative impact of all the casino’s expected impacts when

added together.” Br. of Plaintiff-Appellant at 43. This is not

correct. The “cumulative” impacts to which the regulation

refers are those outside of the project in question; it is a

measurement of the effect of the current project along with any

other past, present, or likely future actions in the same

geographic area. See 40 C.F.R. § 1508.7.

The Bureau discusses one identifiable “future action” in its

EA Supplement – the potential for new business development on

a particular parcel of land as a result of the casino. See EA

Supplement, supra, at 51, J.A. 828. It found that the zoning

ordinances of the local governments, as well as taps to the sewer

and water system, were sufficient to account for the “cumulative

impact.” Id. BIA concluded its cumulative impacts statement

by declaring that “no past, present, or reasonably foreseeable

future actions are known or anticipated which might produce a

significant cumulative impact when considered with the added

incremental impact of the Project.” Id. at 53, J.A. 830.

Other than the potential for development on the one parcel

of land, the Bureau notes that no projects are “known or

anticipated” to combine to produce a significant negative impact

on the environment. And TOMAC points to nothing to suggest

that BIA overlooked anything. Therefore, we find that BIA’s

cumulative impacts analysis is sufficient for purposes of NEPA.

B. “Restored” to Federal Recognition

TOMAC’s principal claim is that BIA and the District Court

improperly concluded that the Pokagon Band was a “restored”

tribe under § 20 of IGRA. The Tribe’s designation as “restored”

facilitated BIA’s ability to more easily take the Pokagon Band’s

land into trust. We agree with BIA and the District Court that

21

the language of the statute and the legislative history of the

Restoration Act clearly demonstrate that the Pokagon Band is a

“restored” tribe within the meaning of IGRA.

In 1988, Congress enacted IGRA, in large part to “provide

a statutory basis for the operation of gaming by Indian tribes as

a means of promoting tribal economic development,

self-sufficiency, and strong tribal governments.” 25 U.S.C. §

2702(1); see Diamond Game Enters., Inc. v. Reno, 230 F.3d 365,

366-67 (D.C. Cir. 2000). Section 20 of IGRA generally

provides that regulated Indian gaming is prohibited on off-

reservation lands acquired in trust by the United States after

October 17, 1988. See 25 U.S.C. § 2719(a). A tribe may be

exempted from this prohibition if the Secretary, after local

consultation, determines that a gaming establishment “would be

in the best interest of the Indian tribe . . . and would not be

detrimental to the surrounding community,” and the state

Governor approves the plan. 25 U.S.C. § 2719(b)(1)(A).

Alternatively, the “restored lands exception” eliminates the

aforementioned procedural hurdles where the land in question

is taken into trust as part of “the restoration of lands for an

Indian tribe that is restored to Federal recognition.” 25 U.S.C.

§ 2719(b)(1)(B)(iii). In the case of the Pokagon Band, the

Bureau determined, and the District Court agreed, that the Band

was “restored to Federal recognition” within the meaning of 25

U.S.C. § 2719(b)(1)(B)(iii).

Section 2 of the Restoration Act states: “Federal

recognition of the Pokagon Band of Potawatomi Indians is

hereby affirmed.” 25 U.S.C. § 1300j-1. TOMAC contends that

Congress purposefully used “affirmed” instead of “restored” to

ensure that IGRA’s restored lands exception did not apply to the

Pokagon Band. In addition to offering no support in the record

for this claim, TOMAC’s contention overlooks the language of

the statute as a whole, disregards similar language in related

22

statutes, and fails to account for the recognized history of the

Pokagon Band.

As noted above, the Pokagon Band “was unfairly

terminated as a result of both faulty and inconsistent

administrative decisions contrary to the intent of the Congress,

federal Indian law and the trust responsibility of the United

States.” S. REP. NO. 103-266, at 6. To remedy this injustice,

Congress enacted the Restoration Act in 1994. The Act’s

specific purpose was to reestablish the Tribe’s status as a

federally recognized tribe, 25 U.S.C. § 1300j-1, thus bringing

the Tribe within the umbrella of federal services and benefits

extended to other federally recognized tribes, 25 U.S.C. §

1300j-2.

While IGRA offers no definition of “restore,” the common

use of the term is “to put back into a former or proper position.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1936 (3d

ed. 1993). Congress’s enactment of the Restoration Act did both

with respect to the Pokagon Band. The House and Senate

committee reports, as well as the statute itself, make clear that

the Band’s “proper” place is one of federal recognition. The

Restoration Act also put the Band back into its “former” place

as a recognized tribe. The Senate committee report explicitly

states that while Congress was not responsible for the Tribe’s

termination, it was nevertheless “terminated” for all intents and

purposes due to “faulty and inconsistent administrative

decisions.” S. REP. NO. 103-266, at 6; see also Grand Traverse

Band of Ottawa & Chippewa Indians v. Office of U.S. Atty. for

W. Dist. of Mich., 369 F.3d 960, 970 (6th Cir. 2004). The

Restoration Act clearly remedied that improper termination and

“restored” the Band to its rightful place.

Even more plainly, the Restoration Act explicitly states that

it is “An Act to restore Federal services to the Pokagon Band of

Potawatomi Indians,” Pub. L. No. 103-323, 108 Stat. 2152

(codified at 25 U.S.C. § 1300j) (emphasis added). And the

23

Senate committee report describing the purposes of the act

states: “The [Pokagon] Band’s claim of rights and status as a

treaty-based tribe, and the need to restore and clarify that status,

has been clearly demonstrated.” S. REP. NO. 103-266 at 6

(emphasis added).

Finally, other decisions in related cases clearly support the

District Court’s judgment in this case. For example, 25 U.S.C.

§ 1300k-2 (2000) states: “Federal recognition of the Little

Traverse Bay Bands of Odawa Indians and the Little River Band

of Ottawa Indians is hereby reaffirmed” (emphasis added). The

Sixth Circuit noted that the statute apparently restored federal

recognition to these Bands. See Sault Ste. Marie Tribe of

Chippewa Indians v. United States, 288 F.3d 910, 912 & n.2

(6th Cir. 2002). Likewise, 25 U.S.C. § 1300l(a) (2000), a statute

restoring the Auburn Indians to federal recognition, states:

“Federal recognition is hereby extended to the Tribe” (emphasis

added). We read this statutory language to signify that

“Congress restored the Auburn Band’s rights as a federally

recognized tribe in 1994.” City of Roseville v. Norton, 348 F.3d

1020, 1022 (D.C. Cir. 2003) (emphasis added).

There can be no real doubt here that the Restoration Act

restored the Tribe to federal recognition for the purposes of § 20

of IGRA. We therefore affirm the District Court’s grant of

summary judgment to BIA on this issue.

C. The Lawfulness of Congress’s Delegation Under the

Restoration Act

In a final attempt to derail the Pokagon Band’s pursuit of its

gaming resort, TOMAC argues that § 6 of the Restoration Act,

25 U.S.C. § 1300j-5, constitutes an unlawful delegation of

power from Congress to the Secretary. That section provides:

The Band’s tribal land shall consist of all real property,

including the land upon which the Tribal Hall is situated,

now or on and after September 21, 1994, held by, or in trust

24

for, the Band. The Secretary shall acquire real property for

the Band. Any such real property shall be taken by the

Secretary in the name of the United States in trust for the

benefit of the Band and shall become part of the Band’s

reservation.

25 U.S.C. § 1300j-5. TOMAC contends that the Secretary’s

authority is boundless, because the statute allows her to acquire

land for the tribe without constraint. This is a specious

argument. When § 1300j-5 is read in light of its clear purpose,

the history of the Tribe, and the Restoration Act as a whole, it is

clear that Congress set forth appropriate boundaries to guide the

Secretary in her acquisition of land in trust for the Tribe.

In a nondelegation challenge, the test is whether Congress

has set forth “‘an intelligible principle to which the person or

body authorized to [act] is directed to conform.’” Am. Trucking

II, 531 U.S. at 472 (quoting J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928)) (alteration in Am. Trucking II).

The Supreme Court has explained that the general policy and

boundaries of a delegation “need not be tested in isolation.” Am.

Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946). Instead,

the statutory language may derive content from the “purpose of

the Act, its factual background and the statutory context in

which they appear.” Id.

The trust acquisition direction in § 1300j-5 must be read as

an integral part of the Restoration Act, in light of the history of

the relationship between the United States and the Tribe, and the

Restoration Act’s express purposes as a whole. The Restoration

Act reestablishes the Pokagon Band as a federally recognized

Indian tribe and its primary purpose is to allow the Tribe to

restore its land base – a reservation – and to exercise jurisdiction

on that reservation. See 25 U.S.C. §§ 1300j-5, j-7. The Tribe

has existed in the St. Joseph River Valley in southwestern

Michigan and northern Indiana since at least the early 1600s.

The statute restores federal services to the Tribe within a

25

10-county service area that corresponds to the Tribe’s ancestral

home. 25 U.S.C. § 1300j-6. We categorically reject the

suggestion that the Secretary has been given no direction as to

where she is to take land into trust for the Tribe. It is obvious

here that the Secretary’s delegated authority under § 1300j-5 is

cabined by “intelligible principles” delineating both the area in

and the purpose for which the land should be purchased. We

therefore find that Congress’s delegation to the agency was

lawful.

III. CONCLUSION

For the reasons discussed above, the judgments of the

District Court are hereby affirmed.

So ordered.