Michigan Gambling Opposition v. Kempthorne

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided April 29, 2008

No. 07-5092

MICHIGAN GAMBLING OPPOSITION,

A MICHIGAN NON-PROFIT CORPORATION,

APPELLANT

v.

DIRK KEMPTHORNE, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE UNITED STATES

DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01181)

John J. Bursch argued the cause for appellant. With him on

the briefs were Rebecca A. Womeldorf, Daniel P. Ettinger, and

Joseph A. Kuiper.

Aaron P. Avila, Attorney, U.S. Department of Justice,

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

was Elizabeth A. Peterson, Attorney. R. Craig Lawrence,

Assistant U.S. Attorney, entered an appearance.

2

Nicholas C. Yost, Seth P. Waxman, Edward C. DuMont,

Demian S. Ahn, and Conly J. Schulte were on the brief for

appellee Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians.

Before: GINSBURG, ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion dissenting in part by Circuit Judge BROWN.

PER CURIAM: In 2005, the Assistant Secretary for Indian

Affairs of the Bureau of Indian Affairs of the Department of

Interior decided to take 147 acres of land in Wayland Township,

Michigan, into trust for use by the Match-E-Be-Nash-She-Wish

Band of Pottawatomi Indians (“the Tribe”), which plans to

construct and operate a Class III casino. This decision followed

federal recognition of the Tribe in 1998. A non-profit Michigan

membership organization — Michigan Gambling Opposition

(“MichGO”) — sued the Secretary of the Interior, the Bureau of

Indian Affairs (“BIA”) and the National Indian Gaming

Commission (“NIGC”) (collectively the “DOI”) alleging that

the DOI’s approval of the proposed casino violated the National

Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et

seq., and that section 5 of the Indian Reorganization Act

(“IRA”), 25 U.S.C. § 465, was unconstitutional. The district

court granted summary judgment to the DOI, and MichGO

appeals. We hold that the DOI did not violate NEPA and that

section 5 of the IRA is not an unconstitutional delegation of

legislative authority. Accordingly, we affirm.

I.

The Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians has lived in Michigan continuously since it emerged as

3

a recognizable unit under Chief Match-E-Be-Nash-She-Wish at

the turn of the nineteenth century. At that time, the Tribe lived

near Kalamazoo, Michigan, along the Kalamazoo River. The

Tribe was party to several treaties with the United States, and it

was adversely affected by several others, with the result that it

lost all of its lands near Kalamazoo by the middle of the

nineteenth century. It avoided being moved to reservations

further west by taking asylum with a church mission in central

Michigan, near the town of Bradley. Around the end of the

nineteenth century, land in the church mission was distributed

to individual members of the Tribe. This distribution was in

accord, although not directly part of, broader federal policies of

the time, which emphasized breaking up tribal holdings and

distributing parcels of land to individuals. See Judith V.

Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1, 10-12

(1995). Most of the land distributed to individual members of

the Tribe was lost because of failure to pay property taxes, as

was the case for large portions of the land distributed under

broader federal policies, id. at 12, but members of the Tribe

continued to reside around the former church mission.

The Tribe, now numbering 277 members, secured federal

acknowledgment of its existence in 1998, under the BIA’s

formal recognition procedure. The Tribe and BIA plan for BIA

to acquire land as a reservation for the Tribe, using the Secretary

of the Interior’s authority under section 5 of the IRA to take

land into trust for Indians, 25 U.S.C. § 465. They have

identified a 147-acre tract of land (“the Bradley property”) that

they find suitable for this purpose. The Bradley property is

located in Wayland township (population 3,013), a largely rural

area about twenty-five miles north of Kalamazoo and thirty

miles south of Grand Rapids. Seeking to advance the economic

well-being of its members, who suffer from unemployment rates

approximately six times the average of their surrounding area,

and to promote economic self-sufficiency, the Tribe plans to use

4

the Bradley property to host a Class III gambling casino. The

planned facility would comprise approximately 99,000 square

feet of gambling, with additional floor space devoted to

restaurants, stores, and offices. The Tribe expects 8,500 visitors

per day.

As BIA studied the Tribe’s proposal, it prepared an

environmental assessment (“EA”) under the auspices of NEPA,

42 U.S.C. § 4321 et seq. The EA analyzed the effects the

proposed casino would have on area wildlife, air and water;

farming in the vicinity; and nearby communities. One of the

issues addressed by the EA was the possibility that the casino

would increase local traffic. The EA used the U.S. Department

of Transportation (“DOT”) grading system to assess the severity

of potential traffic delays: “Level Of Service A” means free

passage, while “Level of Service F” means a driver can expect

to wait eighty seconds or more before passing through an

unsignaled intersection. The EA defined acceptable traffic

delays to be “Level of Service C” or better. However, because

Michigan does not grade intersections, the BIA concluded that

approval by the Michigan Department of Transportation

(“MDOT”) would also qualify an intersection’s traffic levels as

acceptable.

Applying the DOT classification system, a study

commissioned as part of the EA identified two local

intersections where increased casino-related traffic would result

in Level of Service F at certain times. These intersections sit at

the junction of US-131, a limited access highway that runs north

and south along the west edge of the Bradley property, and

Michigan-179 (129th Avenue), a two-lane road that runs east

and west along the south edge of the Bradley property. The

study predicted that the casino would cause heavy traffic at the

right turn from the northbound exit onto 129th Avenue

(eastbound) and at the left turn from the southbound exit onto

5

129th Avenue (eastbound). Resulting delays would be

particularly severe during afternoon rush hours.

To mitigate the traffic impact of the casino, the EA

recommended construction of a new, dedicated right-turn lane

for the northbound intersection and adding a four-way stop to

the southbound intersection. It acknowledged the southbound

left turn would still operate during peak periods at Level of

Service F, so that a traffic light might be necessary. Although

MDOT apparently will not commit to a traffic light based on

predictions of traffic volume, it apparently would approve a

dedicated right turn lane and a four-way stop.1

Having concluded that proposed measures would

sufficiently alleviate traffic delays and that other potential

problems identified in the EA would also be mitigated, the BIA

and the NIGC both issued Findings of No Significant Impact

(“FONSI”) with respect to the casino project and announced

their intent to acquire the Bradley property and allow the casino.

MichGO filed this lawsuit in June 2005, advancing four

claims. The first alleged that the preparation of a FONSI rather

than an environmental impact statement (“EIS”) violated NEPA.

The second and third alleged violations of the Indian Gaming

Regulatory Act (“IGRA”). The fourth alleged that the IRA is an

1

The EA relied on a September 25, 2001, letter from MDOT, which

approved the dedicated right-turn lane; this letter did not expressly

mention the four-way stop or any of the traffic study’s conclusions.

Letter from Robert Coy, Region Permit Agent, MDOT, to Marc Start,

URS Corporation (Sept. 25, 2001). However, a letter from MDOT to

the Tribe on February 12, 2002, cited the completed traffic study and

approved its recommendations, which included the four-way stop.

Letter from Robert Coy, Region Permit Agent, MDOT, to D.K.

Sprague, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians,

Gun Lake Tribe (Feb. 12, 2002).

6

unconstitutional delegation of authority to the Secretary of the

Interior because there is no intelligible principle limiting its

discretion on what land to acquire and hold in trust. The Tribe

was allowed to intervene as a defendant. The district court

granted summary judgment to the DOI on February 23, 2007.

Mich. Gambling Opposition (MichGO) v. Norton, 477 F. Supp.

2d 1, 22 (D.D.C. 2007). MichGO appeals and our review is de

novo. Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C.

Cir. 2006). However, in view of Citizens Exposing Truth About

Casinos v. Kempthorne, 492 F.3d 460 (D.C. Cir. 2007),

MichGO does not pursue its IGRA claims. Appellant’s Reply

Br. 2 n.1.

II.

NEPA requires every agency proposing a “major Federal

action” to prepare a statement of its environmental impact if the

action will “significantly affect[] the quality of the human

environment.” 42 U.S.C. § 4332(C). Under regulations

promulgated by the Council on Environmental Quality (“CEQ”)

agencies must create procedures identifying “[s]pecific criteria

for and identification of those typical classes of action” that

require or do not require an EIS. 40 C.F.R. § 1507.3(b)(2). In

considering any particular proposed action, an agency must first

determine whether, under its own regulations, the proposal

would “[n]ormally require[] an [EIS]” or “[n]ormally [would]

not require either an [EIS] or an [EA].” Id. § 1501.4(a). If the

proposed action is not covered by either of these descriptions,

the agency should prepare an EA, and based on its conclusions,

decide whether to prepare an EIS. Id. §§ 1501.4(b)-(c). The

agency may conclude that an EIS is not necessary and instead

issue a FONSI, in which it must explain why there will be no

significant impact. Id. §§ 1501.4(e); 1508.13.

7

A.

MichGO contends that the Tribe’s casino is large and

controversial, and that the DOI is thus required by law to

prepare an EIS. To support this contention, MichGO relies on

the 2005 “Checklist for Gaming Acquisitions,” distributed to

regional directors by the BIA, which provides that “[p]roposals

for large, and/or potentially controversial gaming establishments

should require the preparation of an EIS.”2 MichGO maintains

that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if

mandated by internal DOI guidelines such as the Checklist.

The premise underlying MichGO’s contention is flawed.

Section 1501.4(a) does not make the Checklist binding on the

DOI. The CEQ does require each agency to “[d]etermine under

its procedures” whether a project is of a type that normally

requires an EIS. Id. § 1501.4(a). But it also specifies that these

procedures will be established pursuant to section 1507.3. Id.

Section 1507.3 sets out a specific process for developing the

relevant agency procedures; as part of this process, the CEQ

must approve the procedures before they are implemented. Id.

§ 1507.3(a). The DOI complied with these requirements when

it established its NEPA procedures, now codified in its manual.

DEP’T OF THE INTERIOR, DEPARTMENT MANUAL, Pt. 516, Chpt.

10 (May 27, 2004). These procedures do not encompass the

Checklist, which in any event does not appear to have been

approved by the CEQ as required by section 1507.3(a). The

manual does, however, include lists of activities that under its

procedures normally require or do not require an EIS or EA. Id.

Gaming activities are not included in these lists. In these

circumstances, the section 1501.4(b)-(c) process — EA

preparation followed by a decision on whether to prepare an EIS

2

OFFICE OF INDIAN GAMING MGMT., DEP’T OF THE INTERIOR,

C HECKLIST FOR GAMING A CQUISITIONS G AMING -R ELATED

ACQUISITIONS AND IGRA SECTION 20 DETERMINATIONS 10 (2005)

(“Checklist”).

8

— is applicable. The DOI followed these procedures and

lawfully determined not to prepare an EIS on the basis of the

EA.3

Because we are unpersuaded that the Checklist is binding

on the DOI, we do not reach MichGO’s contention that the

casino project at issue is “large” and “controversial” within the

meaning of the Checklist.

B.

Alternatively, MichGO contends that it was arbitrary or

capricious for the DOI to issue a FONSI without having

prepared an EIS because two intersections would continue to

experience Level of Service F at certain times, even after

mitigation measures.4

A court reviews an agency’s FONSI or EIS under the

Administrative Procedure Act, 5 U.S.C. § 706, and “cannot

substitute [its] judgment for that of an agency if the agency’s

decision was ‘fully informed and well considered.’” Cabinet

Mountains Wilderness v. Peterson, 685 F.2d 678, 684 (D.C. Cir.

1982) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435

3

MichGO’s suggestion in its brief that the Checklist is binding

independent of 40 C.F.R. § 1501.4 is not appropriately developed and

thus not properly before the court. Schneider v. Kissinger, 412 F.3d

190, 200 n.1 (D.C. Cir. 2005). MichGO also maintains that ignoring

non-binding regulations is arbitrary and capricious, but this contention

is waived as it is raised only in the reply brief. Corson & Gruman Co.

v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990).

4

MichGO maintains in a footnote of its initial brief and in its Reply

Brief that increased traffic in the Village of Hopkins will constitute a

significant, unmitigated impact. We do not consider this argument.

“[A]bsent extraordinary circumstances . . . we do not entertain an

argument raised for the first time in a reply brief . . . or . . . a footnote.”

United States v. Whren, 111 F.3d 956, 958 (D.C. Cir. 1997).

9

U.S. 519, 558 (1978)). If the agency decided to issue a FONSI,

it must either have concluded there would be no significant

impact or have planned measures to mitigate such impacts. A

court must review 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

because changes or safeguards in the project

sufficiently reduce the impact to a minimum.

TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006) (internal

quotations omitted).

The EA found that at least one intersection would

experience Level of Service F at certain times even after

mitigation measures. However, contrary to the assumption

underlying MichGO’s contentions, the EA’s definition of

acceptable traffic performance was not based solely on the

level-of-service classification. Rather, the EA noted that local

authorities had no standards for traffic intensity; thus the EA

deployed two separate indicators as proof of acceptable traffic

conditions: either Level of Service C or above or approval by

relevant local authorities. MDOT, the agency with jurisdiction

over these roads, found the traffic levels projected after the

DOI’s mitigation measures would be acceptable. It was not

inherently arbitrary or capricious for the DOI to rely on

MDOT’s assessment, cf. Coliseum Square Ass’n v. Jackson, 465

F.3d 215, 237 (5th Cir. 2006), and MichGO gives us no reason

to question that reliance. The DOI was thus justified in finding

that mitigation of the traffic impact was sufficient, and that an

EIS was unnecessary.

10

III.

Article I of the Constitution provides that “[a]ll legislative

Powers herein granted shall be vested in a Congress of the

United States.” U.S. CONST. art I, § 1. In considering a

challenge to a delegation of power, “the test is whether

Congress has set forth ‘an intelligible principle to which the

person or body authorized to act is directed to conform.’”

TOMAC, 433 F.3d at 866 (quoting Whitman v. Am. Trucking

Ass'ns, 531 U.S. 457, 472 (2001) (alterations and internal

quotations omitted)). The Supreme Court has underscored that

“the general policy and boundaries of a delegation ‘need not be

tested in isolation’ . . . [as] the statutory language may derive

content from the ‘purpose of the Act, its factual background and

the statutory context.’” Id. (quoting Am. Power & Light Co. v.

SEC, 329 U.S. 90, 104 (1946)). Courts “have almost never felt

qualified to second-guess Congress regarding the permissible

degree of policy judgment that can be left to those executing or

applying the law.” Whitman, 531 U.S. at 474-75 (internal

quotations omitted).

MichGO contends that section 5 of the IRA is an

unconstitutional delegation of legislative power because, apart

from the DOI’s internal regulations, which cannot fill the void,

it is “completely devoid of intelligible standards to guide or

limit the Secretary’s discretion.” Appellant’s Br. at 35. We are

not convinced. An agency cannot “cure an unconstitutionally

standardless delegation of power by declining to exercise some

of that power,” Whitman, 531 U.S. at 473, as the district court

incorrectly suggested, MichGO, 477 F. Supp. 2d at 21-22. But

giving due consideration to the purpose and factual background

of the IRA and section 5’s statutory context, as the Supreme

Court instructs, see Am. Power & Light Co., 329 U.S. at 104,

and having due regard that “Congress is not confined to that

method of executing its policy which involves the least possible

11

delegation of discretion,” Yakus v. United States, 321 U.S. 414,

425-26 (1944), we conclude the statute provides an intelligible

principle.5

Section 5 of the IRA authorizes the Secretary of the Interior

to obtain land “for Indians.”6 25 U.S.C. § 465. This court has

5

Hence the court has no occasion to address the Tribe’s contention

that the non-delegation doctrine is inapplicable because section 5 of

the IRA does not involve a delegation of legislative power.

6

Section 5 of the IRA provides in relevant part:

The Secretary of the Interior is authorized, in his

discretion, to acquire, through purchase, relinquishment,

gift, exchange, or assignment, any interest in lands,

water rights, or surface rights to lands, within or without

existing reservations, including trust or otherwise

restricted allotments, whether the allottee be living or

deceased, for the purpose of providing land for Indians.

For the acquisition of such lands, interests in lands,

water rights, and surface rights, and for expenses

incident to such acquisition, there is authorized to be

appropriated, out of any funds in the Treasury not

otherwise appropriated, a sum not to exceed $2,000,000

in any one fiscal year . . . .

...

Title to any lands or rights acquired pursuant to this Act

. . . shall be taken in the name of the United States in

trust for the Indian tribe . . . for which the land is

acquired, and such lands or rights shall be exempt from

State and local taxation.

25 U.S.C. § 465.

12

not previously considered whether section 5 constitutes an

unconstitutionally standardless delegation of power. But on its

face, the delegation is no broader than other statutes, which the

Supreme Court has upheld, that direct agencies to act in the

“public interest,” Nat’l Broad. Co. v. United States, 319 U.S.

190, 216 (1943), or in a way that is “fair and equitable,” Yakus,

321 U.S. at 420, see also Whitman, 531 U.S. at 473-75.

Furthermore, the courts of appeals for the First, Eighth and

Tenth Circuits have rejected challenges contending that section

5 is an unconstitutional delegation. See Carcieri v. Norton, 497

F.3d 15, 41-43 (1st Cir. 2007) (en banc), cert. granted in part,

denied on non-delegation issue, 128 S. Ct. 1443 (2008); South

Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 799 (8th Cir.

2005); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir.

1999). These courts have held “that an intelligible principle

exists in the statutory phrase ‘for the purpose of providing land

for Indians’ when it is viewed in the statutory and historical

context of the IRA.” This principle involves “providing lands

sufficient to enable Indians to achieve self-support and

ameliorating the damage resulting from . . . prior [federal

policy].” South Dakota, 423 F.3d at 799 (quoting 25 U.S.C. §

465); accord Carcieri, 497 F.3d at 42; Roberts, 185 F.3d at

1137.

Our review of the purpose and structure of the IRA

confirms that, as our sister courts have held, and contrary to the

view of our dissenting colleague, the statute provides an

intelligible principle rather than a tautology when it authorizes

the Secretary to acquire land “for the purpose of providing land

for Indians”: the Secretary is to exercise his powers in order to

further economic development and self-governance among the

Tribes. Cf. Dissenting Op. at 7-8. The Supreme Court has

noted that “[t]he intent and purpose of the [IRA] was to

rehabilitate the Indian’s economic life and to give him a chance

to develop the initiative destroyed by a century of oppression.”

13

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973)

(internal quotations omitted). This accords with the IRA’s

stated purpose of “conserv[ing] and develop[ing] Indian lands

and resources; . . . extend[ing] to Indians the right to form

business and other organizations; . . . establish[ing] a credit

system for Indians; . . . grant[ing] certain rights of home rule to

Indians; . . . and [effectuating] other purposes.” Pub. L. No. 383,

48 Stat. 984, 984 (1934).

In addition to section 5, the IRA includes numerous other

provisions addressing land use and economic development;

among other things, these extend tribal trusts indefinitely, 25

U.S.C. § 462; restore lands previously declared “surplus” to

those trusts, id. § 463; restrict land transfers from tribal

reservations, id. § 464; and provide federal appropriations to

support Indian economic development, id. § 470. This context

underscores section 5’s role as part of a broad effort to promote

economic development among American Indians, with a special

emphasis on preventing and recouping losses of land caused by

previous federal policies. The Supreme Court has

acknowledged this emphasis, explaining that the IRA’s passage

brought “an abrupt end” to the previous federal “policy of

allotment” that had led to individuals who were not American

Indians acquiring “over two-thirds of the Indian lands allotted.”

County of Yakima v. Confederated Tribes & Bands of Yakima

Indian Nation, 502 U.S. 251, 255 (1992). The Court also

emphasized that through the IRA Congress “[r]eturn[ed] to the

principles of tribal self-determination and self-governance

which had characterized” earlier federal policy. Id.

The standards revealed by examining the purpose and

structure of the IRA are confirmed by reviewing the broader

factual context of the statute. The IRA was enacted against a

backdrop of great concern over economic and social challenges

facing American Indians, and especially over the consequences

14

of the federal government’s allotment policy, which had

resulted in many tribal lands being distributed to individuals

who then lost control of them, often because of fraud or inability

to pay taxes. Royster, 27 ARIZ. ST. L.J. at 12. By 1928, a report

commissioned by the Secretary of the Interior found that the

allotment policy had “destructive effects . . . on the economic,

social, cultural and physical well-being of the tribes.” Id. at 16.

As both the Supreme Court, Mescalero Apache Tribe, 411 U.S.

at 152, and circuit courts, South Dakota, 423 F.3d at 798;

Carcieri, 497 F.3d at 42, have acknowledged, the legislative

history of the IRA also underscores its purpose of addressing

economic and social challenges facing American Indians by

promoting economic development. See H.R. Rep. No. 73-1804,

at 6 (1934); S. Rep. No. 73-1080, at 1-2 (1934).7

There is nothing to suggest that section 5 is removed from

the overall IRA purpose of advancing economic development

7

The IRA’s provisions constitute one chapter in a long and

complicated history of interactions between the United States and

American Indians. Our dissenting colleague asserts a trust

relationship arises between the Indians and the United States only after

the Government acquires land for the Indians, Dissenting Op. at 6, but

this confuses the fiduciary relationship that arises because the United

States is to hold newly-acquired land “in trust” under section 5 of the

IRA, see Cobell v. Norton, 240 F.3d 1081, 1088 (D.C. Cir. 2001); see

also United States v. Wilson, 881 F.2d 596, 600 (9th Cir. 1989), with

the pre-existing “special relationship” that arose by virtue of the

Government’s historical relations with the Indians, see 1 FELIX R.

COHEN, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 5.04[4][a]

(2005) (“HANDBOOK”). That unique history informs our

understanding of section 5 of the IRA; a statute authorizing the

acquisition of land “for the purpose of providing land for Indians” is

simply not the same as a statute authorizing the acquisition of land

“for the purpose of providing land for persons taller than 6 feet.” See

generally Reid P. Chambers, Judicial Enforcement of the Federal

Trust Responsibility to Indians, 27 STAN. L. REV. 1213 (1975).

15

among American Indians. While certain sections of the IRA

include more specific language than section 5, see, e.g., 25

U.S.C. § 463, this does not detract from the overall purposes of

the statute. Although, as our dissenting colleague suggests,

particular clauses of the IRA could be interpreted as not

advancing the goal of economic development, not alleviating all

the problems caused by the allotment policy, or advancing goals

more narrow than general economic development, Dissenting

Op. at 5-7, this analysis ignores the unambiguous purpose of the

IRA as a whole.

Finally, we note that the Supreme Court has observed that

“the degree of agency discretion that is acceptable varies

according to the scope of the power congressionally conferred.”

Whitman, 531 U.S. at 475. The scope of authority delegated to

the Secretary under section 5 — to decide whether to grant

status as “Indian Country” to specific plots of land owned by

Indians or that is acquired for them — is not so broad as to

require limiting principles more specific than pursuing Indian

economic development. Our conclusion is underscored by

examining historical and contemporary context. The Executive

has historically enjoyed extensive authority in conducting

relations with American Indians, which has included negotiating

treaties with Indian tribes and granting reservations to them by

executive order. See, e.g., HANDBOOK, supra, §§ 1.03;

15.04[4]; cf. Zemel v. Rusk, 381 U.S. 1, 17-18 (1965). “[E]ven

in sweeping regulatory schemes . . . statutes [are not required to]

provide a determinate criterion” delimiting precisely how much

of a good or harm an agency must address. Whitman, 531 U.S.

at 475 (internal quotations omitted). Our dissenting colleague

asserts that the Secretary’s powers under section 5 are vast,

Dissenting Op. at 10-12, pointing to the many significant

consequences that flow from the Secretary’s decision to accept

land in trust for the Indians. But these consequences follow

from section 5 and from other statutes, not from the decision of

16

the Secretary to acquire land in trust, for section 5 gives the

Secretary no power to regulate state taxing authority or anything

else. Our dissenting colleague further faults Congress for not

providing a narrower standard, but Congress must provide only

an “intelligible” standard, Whitman, 531 U.S. at 474-75. That

standard need not be utterly unambiguous, for it is settled that

Congress may delegate interstitial lawmaking authority to

executive agencies. See Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984).8

For these reasons, we join the First, Eighth and Tenth

Circuits, Carcieri, 497 F.3d at 43; South Dakota, 423 F.3d at

799; Roberts, 185 F.3d at 1137, in upholding section 5 of the

IRA. In cases entertaining (and rejecting) challenges asserting

an unconstitutional delegation, the Supreme Court has “giv[en]

narrow constructions to statutory delegations that might

otherwise be thought to be unconstitutional,” Mistretta v. United

States, 488 U.S. 361, 373 n.7 (1989), and has done so by

looking at clauses that neighbor the delegation of power, e.g.,

Am. Power & Light Co., 329 U.S. at 104-05, as well as the

statute’s overriding purpose, e.g., N.Y. Cent. Sec. Corp. v.

United States, 287 U.S. 12, 24-25 (1932). Congress may

legislate its goals explicitly, see, e.g., Mistretta, 488 U.S. at 374,

but it need not do so. We thus hold, relying upon the text,

structure, and purpose of the IRA, as well as the context of its

enactment, that section 5 contains an intelligible principle and

8

Nor are we concerned, for purposes of the non-delegation doctrine,

that the Secretary’s decision to take land in trust might be

unreviewable in a court of law. Dissenting Op. at 7-8 (citing State of

Fla., Dep’t of Bus. Regulation v. U.S. Dep’t of Interior, 768 F.2d 1248

(11th Cir. 1985)). Section 5 of the IRA intelligibly guides the

Secretary’s exercise of discretion, and that is all that the non-

delegation doctrine requires. Yakus, 321 U.S. at 425-26; 5 U.S.C. §

701.

17

that it is not an unconstitutional delegation of legislative

authority.

Accordingly, we affirm the grant of summary judgment.

BROWN, Circuit Judge, dissenting in part: I join Parts I

and II of the court’s opinion, but I cannot agree § 5 of the IRA

is constitutional. Consequently, I dissent from Part III.

I

Like other courts that have rejected nondelegation

challenges to § 5, Carcieri v. Kempthorne, 497 F.3d 15, 41–

43 (1st Cir. 2007) (en banc); South Dakota v. U.S. Dep’t of

the Interior, 423 F.3d 790, 799 (8th Cir. 2005); United States

v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999), the majority

nominally performs a nondelegation analysis but actually

strips the doctrine of any meaning. It conjures standards and

limits from thin air to construct a supposed intelligible

principle for the § 5 delegation. Although I agree the

nondelegation principle is extremely accommodating, the

majority’s willingness to imagine bounds on delegated

authority goes so far as to render the principle nugatory.

Analyzing the statute using ordinary tools of statutory

construction, as the Supreme Court has always done in

nondelegation cases, I am forced to conclude § 5 is

unconstitutional.

The nondelegation doctrine prohibits Congress from

making unbridled delegations of authority. The rule is not

only a fundamental aspect of the separation of powers; it is an

essential feature of democratic government. “[T]he

delegation doctrine[] has developed to prevent Congress from

forsaking its duties.” Loving v. United States, 517 U.S. 748,

758 (1996). “[T]he constitutional question is whether the

statute has delegated legislative power to the agency . . . [The

Constitution’s] text permits no delegation of those powers.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001);

see also Mistretta v. United States, 488 U.S. 361, 371 (1989)

(“The nondelegation doctrine is rooted in the principle of

separation of powers . . . .”); J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 406 (1928) (“[I]t is a breach of

2

the National fundamental law if Congress gives up its

legislative power . . . .”). The nondelegation principle is

integral to any notion of democratic accountability.

Thus, when Congress directs an agency to exercise its

judgment, it must guide that judgment in some way. I agree

with the majority that the nondelegation principle is not an

onerous requirement. Nevertheless, Congress must at least

“clearly delineate[] the general policy, the public agency

which is to apply it, and the boundaries of this delegated

authority.” Mistretta, 488 U.S. at 372–73; Am. Power &

Light Co. v. SEC, 329 U.S. 90, 105 (1946). The central

question is whether there are “limits on [an agency’s]

discretion.” Whitman, 531 U.S. at 473.

Like the majority, I take Whitman to have identified two

ways in which Congress may provide the necessary bounds

on a delegation: standards to guide an agency’s judgment or,

in their absence, stringent limits on the scope of the delegated

authority. Standards to guide an agency are the ordinary way

to limit its discretion. In the leading case, A.L.A. Schechter

Poultry Corp. v. United States, the Supreme Court invalidated

§ 3 of the National Industrial Recovery Act, which allowed

trade associations to develop codes of fair competition the

President could adopt as law, with conditions as he thought

“necessary.” 295 U.S. 495, 522–23, 542 (1935). This statute

was flawed because it “conferred authority to regulate the

entire economy on the basis of no more precise a standard

than stimulating the economy by assuring ‘fair competition.’”

Whitman, 531 U.S. at 474. Alternatively, “Congress need not

provide any direction” if the “scope of the power

congressionally conferred” is sufficiently small. Id. at 475.

Either type of limit suffices on its own, but at least one must

be present.

3

Thus, the “intelligible principle” required of a

constitutional delegation is fairly minimal: a statute will fail

only if it gives an agency too broad an authority with no

standards to guide the agency’s decisions. Section 5 is a rare

example of a standardless delegation, allowing the Secretary

of the Interior to take land in trust for whichever Indians he

chooses, for whatever reasons. This power is far too broad in

scope for Congress to have delegated without any standards.

II

A

First, § 5 lacks standards to guide the Secretary in the

exercise of his authority. Such standards would not have to

provide a “determinate criterion” to govern agency decisions,

as long as they provide “substantial guidance.” Whitman, 531

U.S. at 475. Standards need only provide some criteria, some

guidelines, or some direction, so that when an agency

exercises its judgment, the agency and the courts have some

“intelligible principle” by which to gauge whether the

agency’s decision will further the purpose of the delegation.

For example, to guide the Sentencing Commission, “Congress

directed it to consider seven factors,” listed in the statute.

Mistretta, 488 U.S. at 375. In Whitman, the Clean Air Act

required the EPA “to set air quality standards at the level that

is ‘requisite’ . . . to protect the public health with an adequate

margin of safety.” 531 U.S. at 475–76.

“Whether [a] statute delegates legislative power is a

question for the courts,” Whitman, 531 U.S. at 473, and the

purpose of an intelligible principle is to make sure it is not

“impossible in a proper proceeding to ascertain whether the

will of Congress has been obeyed.” Yakus v. United States,

321 U.S. 414, 426 (1944). Congress must provide legal

4

standards because “[p]rivate rights are protected by access to

the courts to test the application of the policy in the light of”

the standards. Am. Power & Light Co., 329 U.S. at 105.

Thus, since Congress must lay down these standards by

“legislative act,” Mistretta, 488 U.S. at 372, we should seek

standards for a delegation using the ordinary tools of statutory

construction.

The kinds of tools the majority uses are occasionally

appropriate aids for ascertaining the meaning of ambiguous

statutory text. On the other hand, when a standard is not

ambiguous, but simply absent, we may not supply one by

ourselves. See Conn. Nat’l Bank v. Germain, 503 U.S. 249,

254 (1992); Gen. Elec. Co. v. EPA, 360 F.3d 188, 191 (D.C.

Cir. 2004). The majority not only supplies an absent

standard, it actually invents the standard, imbuing § 5 with a

spirit of “economic development” that somehow emanates

from the context of the IRA.

In many nondelegation cases, Congress at least hints at a

standard by directing an agency to exercise its authority “in

the public interest”—words indicating some congressionally

imposed limit, even if the vagueness of the phrase makes a

court work to interpret it. Here, by contrast, the Secretary “is

authorized” to acquire land for Indians “in his discretion.”

Rather than an ambiguous standard that requires

interpretation, § 5 provides an obvious, unambiguous

direction that the Secretary is to have complete discretion.

The majority proceeds, in the teeth of this clear text, to

find, in the emanation from a variety of sources, the supposed

true intelligible principle behind § 5: promoting Indian

economic development so Indians can achieve “self-support,”

and recouping losses of land. But this standard arises from

the majority’s imagination, not from the sources.

5

First, the court cites the preamble to the IRA: “to

conserve and develop Indian land and resources.” Maj. Op. at

13. A policy of developing land is no more informative than

a purpose of providing land, as a standard to help the

Secretary decide whether to acquire a particular parcel. Nor

do the preamble’s policies of “extending the right to form

business[es] . . . establishing a credit system,” and the rest,

give any better direction.

Second, the majority examines the structure of the IRA.

Maj. Op. at 13. Among its many provisions, the IRA makes

trust status permanent, §§ 2 and 4, and provides for the

recovery of Indian lands that had been opened for sale, § 3.

Ironically, the restoration of lands under § 3 is not automatic,

but rests in the Secretary’s hands. Unlike § 5 acquisitions, the

Secretary is to restore surplus lands “if he shall find it to be in

the public interest.” Ordinarily, a comparison of § 3 and § 5

would lead us, first, to conclude § 5 gives the Secretary

authority to acquire new land, and, second, to construe § 5 to

grant Secretary broader discretion when he acquires new land

than when he restores surplus land. Instead the majority reads

into § 5 an “emphasis” on recouping losses of land, an

emphasis the text does not support. The majority also sees an

emphasis on preventing losses of existing land, even though

§ 8, which declares that the IRA shall not cover “Indian

holdings of allotments or homesteads upon the public domain

outside” of reservations, actually limits the effect of the IRA

on existing Indian land. Nor is it plausible to find a principle

of “self-support” in a statute that actually installs a

paternalistic scheme of government support. See § 4 (barring

Indians from selling or transferring their trust land); § 12

(directing the Secretary to establish preferences for hiring

Indians at the Indian Office); § 11 (appropriating money to

send Indians to “vocational and trade schools” of which only

6

a limited amount may be spent for education in “high schools

and colleges”); § 6 (establishing the Secretary’s authority over

how Indians should manage their forests and how many cows

they may graze on their pastures).

The majority also cites the special trust relationship the

United States bears towards Indians, waving the idea of this

relationship as a talisman to bless the statute rather than

actually using it to interpret the text. Nor could this trust

relationship be useful to interpret § 5, because in fact the

government has no free-standing duty, outside of specific

statutes, treaties, or executive orders, to ensure its actions do

not harm Indian interests. N. Slope Borough v. Andrus, 642

F.2d 589, 611 (D.C. Cir. 1980) (Secretary’s trust obligations,

if any, were coterminous with the ESA’s requirements); see

also United States v. Wilson, 881 F.2d 596, 600 (9th Cir.

1989) (“Absent . . . a fiduciary duty based on an authorizing

document such as a statute or a regulation . . . there can be no

trust relationship between [a tribe] and the BIA.”). The only

trust responsibility created by § 5 exists after the government

acquires a parcel of land and therefore cannot guide the

Secretary’s decision whether to acquire the parcel. The

majority adverts to the “unique history” of Indians in the

United States, but this history gives rise only to “a moral

obligation, without justiciable standards for its enforcement.”

Reid P. Chambers, Judicial Enforcement of the Federal Trust

Responsibility to Indians, 27 STAN. L. REV. 1213, 1227

(1975). At best, courts distinguish statutes relating to Indians

by applying the Indian canon of construction, County of

Yakima v. Confederated Tribes & Bands of Yakima Indian

Nation, 502 U.S. 251, 269 (1992), but “[t]he canon of

construction regarding the resolution of ambiguities in favor

of Indians, however, does not permit reliance on ambiguities

that do not exist.” South Carolina v. Catawba Indian Tribe,

Inc., 476 U.S. 498, 506 (1986).

7

To summarize, the statutory language lacks any

discernible boundaries. To rely on the purpose of “providing

land for Indians” does nothing to cabin the Secretary’s

discretion over providing land for Indians because it is

tautological. To say the purpose is to provide land for Indians

in a broad effort to promote economic development (with a

special emphasis on preventing land loss) is tautology on

steroids. Making a different selection from the same

smorgasbord, I might posit quite different principles—to

provide land for landless Indians; to acquire trust lands to be

used for farming; to supplement grazing and forestry lands; to

provide lands in close proximity to existing reservations; to

consolidate checkerboarded reservations. All of these goals

would be reasonable, but none can be derived from the text of

the IRA. The very fact that so many standards can be

proposed merely highlights the fact that the statute itself fails

to describe how the power conveyed is to be exercised. Thus,

the Secretary’s assertion of unguided power is not subject to

any judicial check; nor, conversely, can he be required to act

whenever he voluntarily refrains from using his discretionary

power.

Even if this mood of economic self-sufficiency can be

said to permeate § 5, it has never constituted a standard to

guide the Secretary’s decisions. Courts, like the BIA, have

consistently interpreted the statute to mean what it says: the

Secretary has unfettered discretion over which land to take in

trust. See, e.g., State of Fla., Dep’t of Bus. Regulation v. U.S.

Dep’t of the Interior, 768 F.2d 1248 (11th Cir. 1985)

(Secretary may waive BIA regulations to acquire land for a

tribal museum, and the court may not review his decision

because it is committed to agency discretion). Again and

again, courts have rejected challenges to acquisitions as

beyond the Secretary’s power, concluding that the

8

“deliberately broad and flexible grant of power” in § 5,

Stevens v. Comm’r of Internal Revenue, 452 F.2d 741, 748

(9th Cir. 1971), encompasses any possible acquisition. E.g.,

Chase v. McMasters, 573 F.2d 1011, 1015–16 (8th Cir. 1978)

(“Congress did not limit the Secretary’s discretion to select

land for acquisition”; therefore, it was valid to accept land an

Indian already owned and was giving to the United States in

trust solely for the purpose of avoiding property taxes). The

BIA has also regarded the Secretary’s discretion as absolute,

and its review board may only verify whether BIA considered

the factors laid out in its own regulations. Eades, 17 I.B.I.A.

198, 200 (1989). Most recently, BIA has begun to deny trust

applications for building casinos if it finds the casinos to lie

beyond a “commutable” distance from tribes’ existing

reservations. See Memorandum from Carl Artman, Ass’t

Sec’y of the Interior, on Taking Off-Reservation Land into

Trust for Gaming Purposes 1, 3 (Jan. 3, 2008) (“The decision

whether to take land into trust . . . is discretionary with the

Secretary.”).1

In light of this history, it is a bit late for the court to claim

there is in fact a standard, however loose, to which the

Secretary must conform in his exercise of § 5 authority. Nor,

given the weight of precedent, would I expect any court to

apply the majority’s “economic development with special

emphasis” standard in reviewing an acquisition decision.

1

BIA denies these applications because for far-away applications,

the benefit to Indians does not outweigh the “concerns of state and

local governments.” Id. at 5 (citing 25 C.F.R. § 151.11(b)). If the

majority is right about the principle guiding these decisions, it

cannot be proper for BIA to deny an acquisition because of the

harm to local government caused by “the removal of the land from

the tax rolls,” id.

9

My point here is not to quibble with the majority’s

conclusion that the purpose of § 5 is to enable self-support

rather than dependency or to prevent losses rather than

acquire new land. Rather, the court should not be playing this

game at all. Indeed, the court’s approach differs radically

from the Supreme Court’s analytical process in nondelegation

challenges. For example, in the Intermountain Rate Cases,

the Court, recognizing that “we must be governed by the

statute and its plain meaning,” interpreted a challenged

section to incorporate a prohibition on “undue preference and

discrimination” from the text of a neighboring section. 234

U.S. 476, 485–86, 488 (1914). In American Power & Light

Co., the Court relied on a statute’s specific standards for new

security issues that constituted “a veritable code of rules” to

inform the SEC’s discretion to ban “unduly or unnecessarily

complicate[d]” corporate structures. 329 U.S. at 105. I could

continue with examples, but they all illustrate the same point:

even in a nondelegation challenge, a court must find meaning

for an ambiguous phrase in some relevant text. Here, by

contrast, the majority perceives a mood of economic

development, which Congress did not articulate, and the

majority justifies this mood by its own assessment of

Congress’s good intentions.

In short, this court, like the First, Eighth, and Tenth

Circuits before it, has constructed an intelligible principle for

§ 5 that consists simply of knowing why Congress enacted the

provision. I do not deny that Congress wanted to alleviate the

problems faced by Native Americans. Nevertheless, this

alleged intelligible principle is relevant only for

nondelegation challenges. The fact that the Supreme Court

has also acknowledged the motivation for the IRA, Maj. Op.

at 13–14, does not make that motivation any more meaningful

as a standard to guide the Secretary’s decisions on trust

10

acquisitions.2 If it were meaningful, it would be contrary to

the plain text of § 5, which gives the Secretary unfettered

discretion over such decisions.

B

Given the absence of standards to govern the Secretary’s

exercise of his § 5 authority, I conclude the authority is too

broad to be valid. Unquestionably, a standardless delegation

is valid if it is small; “the degree of agency discretion that is

acceptable varies according to the scope of the power

congressionally conferred.” Whitman, 531 U.S. at 475.

While the majority recognizes that scope matters, it fails to

acknowledge that under established nondelegation doctrine, a

standardless delegation must be quite narrow. Whitman

provided the canonical example of a sufficiently small

delegation: EPA can “define ‘country elevators,’ which are to

be exempt from new-stationary-source regulations governing

grain elevators.” Id.; see 42 U.S.C. § 7411(i) (“Any

regulations promulgated by the Administrator under this

section applicable to grain elevators shall not apply to country

elevators (as defined by the Administrator) which have a

storage capacity of less than two million five hundred

thousand bushels.”).

By contrast, the § 5 power is quite broad. The majority

blandly characterizes it as the power to grant status as Indian

country, but the majority ignores the far-reaching

consequences of that status.3 By taking land in trust for

2

Amusingly, Mescalero Apache Tribe v. Jones, in perhaps ill-

considered dicta, recited the same legislative history as the majority

on its way to limiting the tax immunities enjoyed by Indians. 411

U.S. 145, 152–59 (1973).

3

The majority also regards the power to hold land in trust as having

aspects of Executive authority, apparently akin to the foreign

11

Indians, the Secretary removes it from the jurisdiction of the

State in which it sits and places it under the authority of a

tribe. Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S.

520, 529–31 (1998) (noting federal land held in trust for

Indians is Indian country (citing United States v. McGowan,

302 U.S. 535 (1938)). Thus, the trust acquisition authority is

a power to determine who writes the law, and thus indirectly

what the law will be, for particular plots of land.

The consequences of the Indian country designation are

profound. Most obviously, Indian country and its beneficial

owners are “exempt from State and local taxation.” 25 U.S.C.

§ 465 para. 4. Indeed, tribal residents of Indian country are

even exempt from motor vehicle and state income taxes.

Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 127–

28 (1993); McClanahan v. Ariz. State Tax Comm’n, 411 U.S.

164, 165 (1973). More generally, Indian country is subject to

federal and tribal jurisdiction in both civil and criminal

matters. Native Vill. of Venetie, 522 U.S. at 527 & n.1 (civil);

DeCoteau v. Dist. County Court for the Tenth Judicial Dist.,

420 U.S. 425, 428 n.2 (1975) (civil); see United States v.

John, 437 U.S. 634, 649, 654 (1978) (reversing state

conviction for a crime committed on trust land). A state

“presumptively lacks jurisdiction to enforce” its regulations in

Indian country. Narragansett Indian Tribe v. Narragansett

Elec. Co., 89 F.3d 908, 915 (1st Cir. 1996). A tribal

sovereign ousts a state, unless Congress expressly provides

otherwise. California v. Cabazon Band of Mission Indians,

relations powers that mitigated a delegation in Zemel v. Rusk, 381

U.S. 1, 17–18 (1965). Maj. Op. at 14–15. Regardless of the

Executive’s role in concluding treaties with Indians, “the

Constitution places the authority to dispose of public lands

exclusively in Congress,” and that includes the power to hold lands

in trust. Sioux Tribe of Indians v. United States, 316 U.S. 317, 326

(1942); see also U.S. CONST. art. IV, § 3 cl. 2 (Property Clause).

12

480 U.S. 202, 207 (1987).4 These consequences result not

from other statutes, as the majority claims, Maj. Op. at 15–16,

but from the “attributes of sovereignty” that “Indian tribes

retain.” Id. at 207; see also Okla. Tax Comm’n, 508 U.S. at

128, Surely we need not avert our gaze from the

constitutional backdrop against which Congress legislates.

Thus, § 5 allows the Secretary, by taking land in trust for

Indians, to oust state jurisdiction in favor of government by

the beneficiaries he chooses. Although there are certain limits

on the scope of this power, such as the restriction that land

may only be held “for Indians,” they are not nearly narrow

enough to validate a standardless delegation. By comparison

to the EPA’s authority to define country elevators, the § 5

power is astoundingly broad. While the EPA was allowed to

exempt certain pollution sources, circumscribed by size, from

pollution regulations the EPA itself had imposed under a

specific provision, 42 U.S.C. § 7411, here the Secretary can

completely remove areas of land from the jurisdiction of state

and local governments. Although this power may not need

the “substantial guidance” the Supreme Court thought

necessary for the EPA’s broad authority to set air-quality

standards, Whitman, 531 U.S. at 476, the power it confers is

far too broad to survive without any guidance at all.

C

4

The Gun Lake Band casino project nicely illustrates how

substantially a change to Indian country status can affect both

Indians and non-Indians in the vicinity of trust land. Local

governments stand to lose $85,000 per year in direct property taxes,

while the extra traffic and other activity connected to the casino

will force local police to hire additional staff at a cost of over

$400,000 per year.

13

Section 5 gives the Secretary unguided authority to

transfer areas of land from the jurisdiction of state and local

government to that of various bands of Indians. None of the

foregoing implies BIA has exercised its authority wantonly.

But the question is not what it has done, but what it has

authority to do. The authority was Congress’s to give, and the

boundaries were for Congress to provide as well. Since it has

failed to do so, I am forced to conclude § 5 of the IRA is an

unconstitutional delegation.