Confederated Tribes of Grand Ronde Community of Oregon v. Jewell

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2016 Decided July 29, 2016

No. 14-5326

CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY

OF OREGON,

APPELLANT

v.

SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF

THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Consolidated with 15-5033

Appeals from the United States District Court

for the District of Columbia

(No. 1:13-cv-00849)

Lawrence Robbins argued the cause for appellants

Confederated Tribes of the Grand Ronde Community of

Oregon. With him on the briefs were Gary A. Orseck, and

Daniel N. Lerman.

Benjamin S. Sharp argued the cause for appellants Clark

County, Washington, et al. With him on the briefs were

Jennifer A. MacLean, Donald C. Baur, Eric D. Miller, Brent

D. Boger, and Christine M. Cook.

2

John L. Smeltzer, Attorney, U.S. Department of Justice,

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

were John C. Cruden, Assistant Attorney General, and

Elizabeth Ann Peterson, Attorney.

Robert D. Luskin argued the cause for intervenor-

appellee the Cowlitz Indian Tribe. With him on the brief

were V. Heather Sibbison, Suzanne R. Schaeffer, and Kenneth

J. Pfaehler.

Craig J. Dorsay was on the brief for amicus curiae

Samish Indian Nation in support of federal appellee Sally

Jewell, Secretary of the United States Department of the

Interior, and intervenor-appellee Cowlitz Indian Tribe.

Elliott A. Milhollin, Gregory A. Smith, and Geoffrey D.

Strommer were on the brief for amici curiae United South and

Eastern Tribes, Inc. and Jamestown S’Klallam Tribe in

support of intervenor-appellee.

Before: PILLARD and WILKINS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

WILKINS, Circuit Judge: The Cowlitz are an American

Indian tribe from southwestern Washington state. After

refusing to sign a land cession treaty with the United States in

1855, President Lincoln by 1863 proclamation opened its land

to non-Indian settlement. Without a land base, the Cowlitz

scattered, and for decades federal Indian policy reflected a

mistaken belief that they no longer existed as a distinct

communal entity. After a formal process for federal

acknowledgment came into being in 1978, the Cowlitz at last

gained legal status as a tribe in the eyes of the government in

2002. Reconsidered Final Determination for Federal

3

Acknowledgment of the Cowlitz Indian Tribe, 67 Fed. Reg.

607 (Jan. 4, 2002). Immediately thereafter, they successfully

petitioned the Department of the Interior to take into trust and

declare as their “initial reservation” a parcel of land. The

Cowlitz wish to use this parcel for tribal government

facilities, elder housing, a cultural center, as well as a casino.

Two groups of Plaintiff-Appellants bring challenges

under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 551 et seq., to the Interior Secretary’s decision to take the

land into trust and to allow casino-style gaming. One group 1

is comprised of Clark County, Washington, homeowners and

community members in the area surrounding the parcel, as

well as competing gambling clubs and card rooms

(collectively, “Clark County”). Another is the Confederated

Tribes of the Grand Ronde Community of Oregon (“Grand

Ronde”), which owns and operates a competing casino. The

District Court consolidated the actions, allowed the Cowlitz to

intervene and, in reviewing cross-motions for summary

judgment, ruled in favor of the Secretary and the Cowlitz.

See Confederated Tribes of the Grand Ronde Cmty. v. Jewell,

75 F. Supp. 3d 387 (D.D.C. 2014).

For the reasons that follow, we affirm the judgment of the

District Court. The Secretary reasonably interpreted and

applied the Indian Reorganization Act (“IRA”), 25 U.S.C.

§ 461 et seq., to conclude that the Cowlitz are a “recognized

Indian tribe now under Federal jurisdiction,” 25 U.S.C. § 479.

The Secretary also reasonably determined that the Cowlitz

meet the “initial-reservation” exception to the Indian Gaming

Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq. Lastly,

1

The City of Vancouver, Washington, was voluntarily dismissed

from the case following oral argument.

4

we reject Appellants’ remaining claims of error under the

IRA, the National Environmental Policy Act (“NEPA”), 42

U.S.C. § 4321 et seq., and 25 C.F.R. § 83.12(b) (1994), based

on the Secretary’s alleged failure independently to verify the

Tribe’s business plan and membership figures.

I.

The 1934 IRA was meant “to promote economic

development among American Indians, with a special

emphasis on preventing and recouping losses of land caused

by previous federal policies.” Mich. Gambling Opposition v.

Kempthorne, 525 F.3d 23, 31 (D.C. Cir. 2008). Whereas a

prior policy of allotment sought “to extinguish tribal

sovereignty, erase reservation boundaries, and force the

assimilation of Indians into the society at large,” Cty. of

Yakima v. Confederated Tribes & Bands of Yakima Indian

Nation, 502 U.S. 251, 254 (1992), Congress enacted the IRA,

among other things, to “conserve and develop Indian lands

and resources,” Pub. L. No. 383, 48 Stat. 984, 984 (1934).

As part of this effort, the statute permits the Secretary of the

Interior to accept lands into federal trust for “Indians.”

25 U.S.C. § 465.

There are three ways to qualify as an “Indian” under the

IRA, which extends to:

[1] [A]ll persons of Indian descent who are

members of any recognized Indian tribe now

under Federal jurisdiction . . .

[2] [A]ll persons who are descendants of

such members who were, on June 1, 1934,

residing within the present boundaries of any

Indian reservation, and . . .

5

[3] [A]ll other persons of one-half or more

Indian blood.

25 U.S.C. § 479. In Carcieri v. Salazar, the Supreme Court

held that the word, “now,” unambiguously limits the first

definition to members of those tribes that were under federal

jurisdiction in the year 1934. 555 U.S. 379, 391 (2009). In

so holding, it did not pass on the exact meaning of

“recognized” or “under Federal jurisdiction.” These two

terms are at the heart of our case.

Appellants challenge whether the Cowlitz qualify as

“Indians” under the IRA because another statute – the

IGRA – permits gaming on land that the Secretary takes into

trust on behalf of Indians pursuant to the IRA. 25 U.S.C.

§ 2719. For lands acquired after October 17, 1988, there is a

blanket prohibition on IGRA-regulated gaming, id. § 2719(a),

unless the land meets certain statutory criteria, id. § 2719(b).

Pertinent to our case, the IGRA contains an exception for

land acquired as part of “the initial reservation of an Indian

tribe acknowledged by the Secretary under the Federal

acknowledgment process” – the so-called “initial-reservation”

exception. Id. § 2719(b)(1)(B)(ii). Another exception – for

so-called “restored lands” – applies where land has been

acquired as part of “the restoration of lands for an Indian tribe

that is restored to Federal recognition.” Id.

§ 2719(b)(1)(B)(iii). These exceptions “ensur[e] that tribes

lacking reservations when [the] IGRA was enacted are not

disadvantaged relative to more established ones.” City of

Roseville v. Norton, 348 F.3d 1020, 1030 (D.C. Cir. 2003).

For the whole point of the IGRA is 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.” Diamond Game Enters. v.

6

Reno, 230 F.3d 365, 366-67 (D.C. Cir. 2000) (quoting 25

U.S.C. § 2702(1)).

After an Indian Claims Commission (“ICC”) 2 decision

concluded that the federal government had “deprived the

Cowlitz Tribe of its aboriginal title as of March 20, 1863,

without the payment of any consideration therefor,” 3 25 Ind.

Cl. Comm. 442, 463 (June 23, 1971), it was not until years

later in 2002 that the Tribe gained federal acknowledgment. 4

Final Determination to Acknowledge the Cowlitz Indian

Tribe, 65 Fed. Reg. 8,436 (Feb. 18, 2000); 67 Fed. Reg. at

607. The federal acknowledgment process requires an

applicant group to show, inter alia, that it has existed as a

distinct community since 1900. See 25 C.F.R. § 83.11(b).

The acknowledgment conferred on the Cowlitz legal status as

an Indian tribe, thereby qualifying them for the protection,

services, and benefits afforded by the federal government to

Indian tribes. FELIX S. COHEN’S HANDBOOK OF FEDERAL

INDIAN LAW 134 (2012 ed.) [hereinafter Cohen].

The same day the Cowlitz gained federal

acknowledgment, they submitted an application to Interior

2

The ICC no longer exists but was a special tribunal created to try

pre-1946 Indian claims against the federal government. Six Nations

Confederacy v. Andrus, 610 F.2d 996, 997 (D.C. Cir. 1979).

3

In 1973, the ICC entered judgment in favor of the Cowlitz for

$1,550,000. 30 Ind. Cl. Comm. 129, 143 (April 12, 1973).

4

Following an administrative appeal and remand, in December

2001, the Assistant Secretary for Indian Affairs issued a

Reconsidered Final Determination affirming the earlier one. J.A.

1143. The Reconsideration was published in the Federal Register

on, and federal acknowledgment was effective as of, January 4,

2002. 67 Fed. Reg. 607 (Jan. 4, 2002).

7

requesting that it accept into trust and declare a 151.87-acre

parcel of land their “initial reservation.” The parcel is located

in Clark County, Washington, closest to the town of La

Center, and is approximately 24 miles from the Tribe’s

headquarters in Longview, Washington, 30 minutes from

Portland, Oregon, and 20 minutes from Vancouver,

Washington. Grand Ronde’s casino, in comparison, is located

approximately 65 miles from Portland. The parties dispute

the Cowlitz’s historical connections to the parcel, but at least

agree that it is 14 miles south of Cowlitz aboriginal territory,

where the tribe exercised exclusive use and occupancy.

As part of the tribal gaming approval process, while the

initial-reservation request and land-into-trust petition were

pending with Interior, the National Indian Gaming

Commission (“NIGC”) 5 issued a 2005 Opinion suggesting

that the parcel also could qualify for the IGRA’s restored-

lands exception. 6 The Bureau of Indian Affairs next prepared

a draft environmental impact statement (“DEIS”) and final

environmental impact statement (“FEIS”) in 2006 and 2008,

respectively. See 42 U.S.C. § 4332(C) (requiring a detailed

environmental impact statement for “major Federal actions

significantly affecting the quality of the human

environment”). In 2010, the Secretary initially approved the

5

Congress created the NIGC, an independent regulatory

commission located within the Interior Department, to implement

the IGRA. See Diamond Game Enters., 230 F.3d at 367; Cohen at

876 n.5.

6

The tribe noted that it was effectively asking to qualify for both

exceptions – one through the Secretary and one through the NIGC.

At the time there was no prohibition on qualifying for both

exceptions at the same time, but that changed in 2008. See

Confederated Tribes, 75 F. Supp. 3d at 395 n.3 (citing 25 C.F.R.

§ 292.6 (2008)); 25 C.F.R. § 292.11(b)(2) (2008).

8

land-trust application, and declared the land to be the initial

reservation of the Cowlitz. Following a separate APA

challenge and remand, Interior issued a revised record of

decision (“ROD”) in April 2013 that, among other things,

confirmed its initial reservation decision.

Grand Ronde and Clark County each challenged the final

ROD in June 2013. They alleged: 1) that the Cowlitz were

neither “recognized” nor “under federal jurisdiction” in 1934,

and therefore cannot be the beneficiary of a trust acquisition

under the IRA; 2) that the Tribe lacks sufficient historic

connections to the parcel to meet the regulatory requirements

for the IGRA’s initial-reservation exception; and 3) that the

FEIS failed, in various ways, to satisfy the requirements of the

National Environmental Policy Act. Clark County

additionally claimed that the Secretary lacked authority to

take the land into trust because it allegedly shirked a

responsibility under 25 C.F.R. § 83.12(b) (1994) regarding

additions to a tribe’s membership roll after federal

acknowledgment.

The District Court consolidated the actions, allowed the

Cowlitz to intervene as a defendant, and granted summary

judgment for Interior and the Cowlitz. This appeal timely

followed.

II.

We review the District Court’s grant of summary

judgment de novo. TOMAC, Taxpayers of Michigan Against

Casinos v. Norton, 433 F.3d 852, 860 (D.C. Cir. 2006). We

will not uphold an agency decision that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A), or “unsupported

by substantial evidence,” 5 U.S.C. § 706(2)(E).

9

When it comes to an agency’s interpretation of a statute

Congress has authorized it to implement, we employ the

familiar Chevron analysis. Citizens Exposing Truth About

Casinos v. Kempthorne, 492 F.3d 460, 465 (D.C. Cir. 2007)

(citing Chevron v. Natural Res. Def. Council, Inc., 467 U.S.

837 (1984)). If Congress has directly spoken to the issue, that

is the end of the matter. Id. (citing Chevron, 467 U.S. at 842-

43). Otherwise, in cases of implicit legislative delegation, we

must determine if the agency’s interpretation is permissible,

and if so, defer to it. Id; Chevron, 467 U.S. at 843-44. We do

so while mindful of the “governing canon of construction

requir[ing] that statutes are to be construed liberally in favor

of the Indians, with ambiguous provisions interpreted to their

benefit.” California Valley Miwok Tribe v. United States, 515

F.3d 1262, 1266 n.7 (D.C. Cir. 2008) (quoting Cobell v.

Norton, 240 F.3d 1081, 1101 (D. C. Cir. 2001)). Of course,

agency action is always subject to arbitrary and capricious

review under the APA, even when it survives Chevron Step

Two – an inquiry that in our case overlaps. See Judulang v.

Holder, 132 S. Ct. 476, 483 n.7 (2011); see also EDWARDS ET

AL., FEDERAL STANDARDS OF REVIEW 217-220 (2d ed. 2013).

Finally, we give substantial deference to an agency’s

interpretation of its own regulations unless it is contrary to the

regulation’s plain language. Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994).

A.

The Secretary’s authority to take land into trust is limited,

in pertinent part, to doing so on behalf of “any recognized

Indian tribe now under Federal jurisdiction.” 25 U.S.C.

§ 479. Appellants challenge the Secretary’s decision with

respect to both what it means to be “recognized” and to be

10

“under Federal jurisdiction.” We first tackle the meaning of

“recognized.”

1.

The Secretary determined that the Cowlitz’s federal

acknowledgment in 2002 satisfied the statute’s recognition

requirement. The Secretary began by explaining that,

although “now under Federal jurisdiction” refers to when the

IRA was enacted, “now” is cabined to that Federal-

jurisdiction requirement and does not modify “recognized.”

Citing Justice Breyer’s approach from his concurrence in

Carcieri, the ROD explained that “[t]he IRA imposes no time

limit upon recognition,” J.A. 255 (quoting 555 U.S. at 398

(Breyer, J., concurring)), and “the tribe need only be

‘recognized’ as of the time the Department acquires the land

into trust,” J.A. 255. Thus, there was no need to further

delineate the precise contours of the term, which the Secretary

acknowledged carries much historical baggage. The concept

of “recognition” has been used at once in the cognitive or

quasi-anthropological sense, in terms of knowing or realizing

that a tribe exists, and alternatively in a political sense, to

refer to a formalized, unique relationship between a tribe and

the United States. Rather than parse the range of interactions

with the government qualifying as recognition, the Secretary

concluded that under any definition, the Cowlitz’s 2002

acknowledgment through the administrative federal

acknowledgment process was sufficient. J.A. 254-55.

According to Appellants, the Secretary’s interpretation

was error because the IRA mandates that a tribe must have

been recognized in the year 1934. When it comes to the

meaning of recognition, they furthermore believe the IRA

uses that term in the political sense. Appellants advocate that

there must have been some “formal political act confirming

11

the tribe’s existence as a distinct political society” back in in

1934, which, they maintain, the Cowlitz cannot show. Grand

Ronde Br. 19 (citing California Valley Miwok, 515 F.3d at

1263).

2.

We first confront whether Congress has directly spoken

to the issue, an inquiry we undertake using traditional tools of

statutory interpretation, and decide it has not. Chevron, 467

U.S. at 842 n.9; Consumer Elecs. Ass’n v. FCC, 347 F.3d 291,

297 (D.C. Cir. 2003).

Before moving to Chevron Step One, though, we pause to

confirm that the Chevron framework is in fact applicable.

Clark County suggests that the Supreme Court already

foreclosed any role by Interior to interpret the first definition

of Indian in the IRA. Clark County Br. 9-10 (citing Carcieri,

555 U.S. at 391). That is too broad a reading of Carcieri,

whose holding reaches only the temporal limits of the

Federal-jurisdiction prong. 555 U.S. at 395. (“We hold that

the term ‘now under Federal jurisdiction’ in § 479

unambiguously refers to those tribes that were under the

federal jurisdiction of the United States when the IRA was

enacted in 1934.”). When the Court in another passage wrote

that there was “no gap in 25 U.S.C. § 479 for the agency to

fill,” Carcieri, 555 U.S. at 391, it was rejecting a government

argument that the IRA’s three definitions of “Indian” were

“illustrative rather than exclusive,” Brief for Respondents at

26, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526).

The Court disagreed that the statute’s phrasing somehow

empowered Interior to create additional categories of Indians.

See Carcieri, 555 U.S. at 391 (citing Brief for Respondents at

26-27). That sentence does not mean, however, that the IRA

is wholly immune to a Chevron analysis.

12

We thus turn to the text of the statute, which defines

“Indian” as:

[1] [A]ll persons of Indian descent who are

members of any recognized Indian tribe now

under Federal jurisdiction . . .

[2] [A]ll persons who are descendants of

such members who were, on June 1, 1934,

residing within the present boundaries of any

Indian reservation, and . . .

[3] [A]ll other persons of one-half or more

Indian blood.

25 U.S.C. § 479. When considering the larger phrase,

“recognized Indian Tribe now under Federal jurisdiction,” the

word, “now” is an adverb, and adverbs modify verbs,

adjectives or other adverbs. MICHAEL STRUMPF & AURIEL

DOGULAS, THE GRAMMAR BIBLE 112 (2004). Adverbs

typically precede the adjectives and adverbs they seek to

modify, which strongly signals that “now” is limited to the

prepositional phrase, “now under Federal jurisdiction.” See

id. at 121. The placement of “now” in reference to “under

Federal jurisdiction” is only half the answer, however. The

more difficult question is whether that temporally limited

prepositional phrase, “now under Federal jurisdiction,”

modifies the noun, “tribe,” before its modification by the

adjective, “recognized,” or whether it modifies the already

modified noun, “recognized tribe.” If “now under Federal

jurisdiction” only modifies “tribe,” there is no temporal

limitation on when recognition must occur. If the

prepositional phrase instead modifies “recognized tribe,”

recognition must have already happened as of 1934. See

Carcieri, 555 U.S. at 391.

13

Understood in this way, we agree with the District Court

that “recognized” is ambiguous and susceptible to either

interpretation. While Appellants disagree, Grand Ronde

offers a grammatical hypothetical that only confirms this

ambiguity. When considering a statute giving benefits to

“any certified veteran wounded in 1934,” Grand Ronde Br.

12, that phrase might very well refer to a universe of veterans

wounded in 1934, but thereafter certified, Confederated

Tribes, 75 F. Supp. 3d at 399. Like in our situation,

“wounded in 1934” modifies the noun, “veteran.” But

“veteran” is also modified by “certified,” and it is unclear

from the sentence’s structure when the certification must

occur. Grande Ronde’s own example shows that Appellants’

construction “is not an inevitable one.” Regions Hosp. v.

Shalala, 522 U.S. 448, 460 (1998); see also id. at 458 (“[T]he

phrase ‘recognized as reasonable’ might mean costs the

Secretary . . . has recognized as reasonable . . . or will

recognize as reasonable”).

The structure of the IRA does not counsel otherwise.

Appellants contend that the IRA’s second definition of

“Indian” erases any ambiguity in the first definition and does

not make sense unless we understand the statute to require

recognition in 1934. The second definition refers to “all

persons who are descendants of such members who were, on

June 1, 1934, residing within the present boundaries of any

Indian reservation.” 25 U.S.C. § 479. Appellants do not

believe a descendant of a tribe recognized in 2002 could have

lived on a reservation in 1934. That assumption is incorrect,

for, as the government explains, recognition that occurs after

1934 “simply means, in retrospect, that any descendant of a

Cowlitz Tribal member who was living on an Indian

reservation in 1934 then met the IRA’s second definition.”

Gov’t Br. 47. As a concrete example, the District Court

pointed to Cowlitz members who lived on the reservation of

14

the Quinault Tribe in 1934. Confederated Tribes, 75 F. Supp.

3d at 400. Thus, the IRA’s second definition does not

overcome the ambiguity we see in the first definition.

We move on to legislative history, which similarly does

not provide any clarity on when recognition must occur or

what it entails. The Senate Committee on Indian Affairs

discussed how to define “Indian” throughout April and May

of 1934, and did so in contradictory ways. One exchange

between Senator Elmer Thomas and Commissioner of Indian

Affairs John Collier suggested the IRA was being crafted

expansively, to “throw[] open Government aid to those

rejected Indians.” To Grant to Indians Living Under Federal

Tutelage the Freedom to Organize for Purposes of Local Self-

Government and Economic Enterprises: Hearing on S. 2755

and S. 3645 Before the S. Comm. on Indian Affairs, 73 Cong.

80 (1934) [hereinafter Subcommittee Hearing]. Other

Senators expressed concern about whether individuals might

evade the blood quantum requirement in the third definition

of Indian, covering persons of one-half or more Indian blood,

25 U.S.C. § 479, if they could show they were “members of

any recognized Indian tribe,” Subcommittee Hearing at 266.

To cabin eligibility, Chairman Wheeler said, “You would

have to have a limitation after the description of the tribe,”

after which Collier suggested inserting “now under Federal

jurisdiction,” after “recognized Indian tribe.” Subcommittee

Hearing at 266. The hearing then abruptly ended, leaving

only so much to glean from these words – certainly nothing

about when recognition must occur. At most, this history

reflects Congressional intent to limit what was a much

broader concept of recognition by some “jurisdictional”

connection to the government, even though, as discussed

later, nobody seemed to know what that jurisdictional

connection might be. While not telling us anything about any

time limitation on recognition, the legislative history at least

15

counters Appellants’ contention that “recognized Indian tribe”

was some established term of art unambiguously referring to a

tribe’s political status.

3.

Proceeding to Chevron Step Two, we note that

Appellants raise claims under both Chevron and State Farm,

which in this case overlap. See EDWARDS, supra, at 217 (“In

[some] situations, what is ‘permissible’ under Chevron is also

reasonable under State Farm.”) (quoting Arent v. Shalala, 70

F.3d 610, 616 n.6 (D.C. Cir. 1995)). Ultimately, we defer to

Interior’s interpretation of the statute. Citizens Exposing

Truth, 492 F.3d at 465. Consistent with Justice Breyer’s

concurrence in Carcieri, it was not unlawful for the Secretary

to conclude that a “tribe need only be ‘recognized’ as of the

time the Department acquires the land into trust.” J.A. 255.

Appellants disagree on account of what they allege is

inconsistent agency interpretation of the IRA. See Alabama

Educ. Ass’n v. Chao, 455 F.3d 386, 392 (D.C. Cir. 2006)

(“When an agency adopts a materially changed interpretation

of a statute, it must in addition provide a ‘reasoned analysis’

supporting its decision to revise its interpretation.” (quoting

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

Auto. Ins. Co., 463 U.S. 29, 57 (1983))). Appellants believe

four things in particular prove their point: 1) a 1976

Department decision regarding the Stillaguamish Tribe; 2) a

1980 decision in Brown v. Commissioner of Indian Affairs by

the Interior Board of Indian Appeals, 8 IBIA 183 (1980); 3) a

1994 Department letter to the House Committee on Natural

Resources; and 4) a 2015 Department decision regarding the

Mashpee Wampanoag Tribe. We reject the inferences

Appellants would have us draw from each of these

documents, none of which shows a “materially changed

16

[agency] interpretation” of the IRA. Alabama Educ. Ass’n,

455 F.3d at 392. Rather, “administrative practice suggests

that the Department has [already] accepted th[e] possibility”

that “[t]he statute . . . imposes no time limit upon

recognition.” Carcieri, 555 U.S. at 398 (Breyer, J.,

concurring).

The Stillaguamish Tribe’s path to qualifying for IRA

benefits actually shows that the IRA does not limit the

benefits it confers only to tribes recognized as of 1934.

Appellants point to Interior’s 1976 decision denying the

tribe’s request to take certain land into trust, but that was not

the end of the story. What they fail to mention is that Interior

reconsidered this decision just a few years later, in 1980. In

so doing, it concluded the opposite – that the Stillaguamish

did in fact “constitute a tribe for purposes of the IRA.” J.A.

527. “It is irrelevant,” explained the Department, “that the

United States was ignorant in 1934 of the rights of the

Stillaguamish.” J.A. 526 (emphasis added). The government

even went so far as to say that it did not matter that it had “on

a number of occasions . . . taken the position that the

Stillaguamish did not constitute a tribe.” J.A. 527. Indeed,

there are several instances throughout history where the

United States initially has determined that a tribe “had long

since been dissolved,” only to correct this misapprehension

later in time. See Carcieri, 555 U.S. at 398-99 (Breyer, J.,

concurring). The Stillaguamish experience is therefore

consistent with Interior’s position vis-à-vis the Cowlitz.

The Brown v. Commissioner of Indian Affairs decision is

of no greater help to Appellants. 8 IBIA 183 (1980). There,

the Interior Board of Indian Appeals confronted whether the

appellant’s Cowlitz nephew could receive a gift deed of a

portion of his uncle’s allotment on the Quinault Tribe

reservation. To receive the gift, the nephew had to be an

17

“Indian” under the IRA. Id. at 184-85. The Board first

considered if the nephew qualified on account of his inclusion

on the official census roll of the “Indians of the Quinault

Reservation” back “when the IRA was passed.” Id. at 187.

The uncle argued that the nephew’s prior membership in that

group provided the necessary statutory hook because the

group had been “under Federal jurisdiction” in 1934. See id.

at 188. The Board, however, declined “to dwell on the import

of th[a]t phrase.” Id. It was furthermore unconvinced that the

“Indians of the Quinault Reservation” were “one and the

same” as the present-day, federally recognized Quinault

Tribe, and so rejected the uncle’s argument. Id. at 188.

The Board therefore did not offer a contrary

interpretation of “recognized” in its discussion of the

nephew’s membership in the “Indians of the Quinault

Reservation.” Nor did the Board elsewhere hold that the IRA

requires Cowlitz recognition in 1934. See Grand Ronde Br.

13. “[I]n the absence” back in 1980 “of any evidence that

[the nephew] was or is now a member of any other federally

recognized tribe,” id. at 190, the Board was left to uphold the

conveyance under the IRA’s second definition, see id.

Knowing what we know now, post-2002, the conclusion that

the nephew could not rely on his membership in the as-yet

unrecognized Cowlitz Tribe is unremarkable. This is

especially true in light of the Stillaguamish opinion, issued

that same year, which confirms that the government has

sometimes mistakenly taken a position that an Indian group

does not constitute a tribe.

We can next dismiss outright the idea that Interior offered

a contrary position in a 2015 record of decision to the

Mashpee Wampanoag Tribe. See Grand Ronde Br. 13-14.

Appellants’ reliance on that decision is odd, given that

Interior expressly said “there is no temporal limitation on the

18

term ‘recognized’ and therefore, recognition in 1934 is not

required.” J.A. 4553 n.237.

Lastly, we find no merit in Appellants’ remaining

argument based on the inclusion of the year, 1934, in brackets

in one sentence of a 1994 letter to the House Committee on

Natural Resources. See J.A. 4636 (paraphrasing the first

definition of “Indian” as including “all persons of Indian

descent who are members of any recognized [in 1934] tribe

under Federal jurisdiction”). We fail to glean from those

brackets or the letter any interpretation of the statute, let alone

a departure from past agency interpretation; instead, the

Assistant Secretary was responding to a request “to provide a

list of nonhistoric Indian tribes.” J.A. 4634. Even when the

Supreme Court adjudicated the meaning of the the IRA’s first

definition of “Indian” in Carcieri, it was unswayed by the

persuasive authority of precisely this type of parenthetical.

Compare United States v. John, 437 U.S. 634, 650 (1978)

(writing that the IRA defined “Indian” in part as “all persons

of Indian descent who are members of any recognized [in

1934] tribe now under Federal jurisdiction”), with Brief of

Petitioner at 25-26, Carcieri v. Salazar, 555 U.S. 379 (2009)

(No. 07-526) (advocating that “[t]he bracketed phrase ‘in

1934’ [in United States v. John] . . . reflects the Court’s

understanding that the word ‘now’ restricts the operation of

the IRA to tribes that were federally recognized and under

federal jurisdiction at the time of enactment”), and Carcieri,

555 U.S. at 381-96 (nowhere citing United States v. John in

holding that “now under Federal jurisdiction” is restricted to

1934.).

As shown above, Interior’s interpretation was reasonable.

Neither the agency decisions pointed to by Appellants, nor the

parenthetical from the 1994 letter – nor United States v. John,

for that matter – persuade us otherwise, and we are bound to

19

defer to the Board’s reasonable interpretation of the statute it

is charged to administer. UC Health v. NLRB, 803 F.3d 669,

681 (D.C. Cir. 2015).

B.

The Secretary’s authority to take land into trust, as

mentioned, is limited to “recognized Indian tribe[s] now

under Federal jurisdiction,” 25 U.S.C. § 479, which leads

Appellants also to challenge the Secretary’s determination on

what is required by the IRA’s jurisdictional requirement.

The Secretary interpreted “now under Federal

jurisdiction” to require a two-part inquiry. J.A. 260. First, the

Secretary considers:

whether there is a sufficient showing in the

tribe’s history, at or before 1934, that it was

under federal jurisdiction, i.e., whether the

United States had in 1934 or at some point in

the tribe’s history prior to 1934, taken an

action or series of actions – through a course

of dealings or other relevant acts for or on

behalf of the tribe or in some instance tribal

members – that are sufficient to establish, or

that generally reflect federal obligations,

duties, responsibility for or authority over the

tribe by the Federal Government.

J.A. 260-61. The second part of the test takes into account

whether the Federal-jurisdiction status remained intact in

1934. J.A. 261.

Applying this test, the Secretary detailed the

government’s course of dealings with the Cowlitz dating from

20

failed treaty negotiations at the 1855 Chehalis River Treaty

Council, J.A. 263, to acknowledgment and communication

with Cowlitz chiefs in the late 19th century, J.A. 264, to

government provision of services into the 1900s, J.A. 265, to

supervision in the 1920s by the local Taholah Agency,

J.A. 265, to organization and claims efforts leading up to the

ICC award, J.A. 266, to allotment activities, J.A. 267-68.

Another “important action by the Federal Government

evidencing the Tribe was under federal jurisdiction in 1934”

was Interior’s approval of an attorney contract for the Tribe in

1932, pursuant to a statute that required contracts between

Indian tribes and attorneys be approved by the Commissioner

of Indian Affairs and Secretary. J.A. 269. Furthermore, the

Secretary explicitly rejected arguments relating to the 2005

NIGC Restored Lands Opinion, which discussed the lack of a

government-to-government relationship with the Tribe, as

conflating the modern, political concept of recognition with

that used in the IRA, which was closer to an “ethnological and

cognitive” concept. J.A. 270-71. In any event, the Secretary

explained, “recognition is not the inquiry before us. Rather, it

is the concept of federal jurisdiction that is addressed.”

J.A. 270.

Appellants urge that the phrase, “under Federal

jurisdiction” is unambiguous, but we disagree. Congress

nowhere in the statute gave further meaning to these words.

Moreover, “jurisdiction” is a term of extraordinary breadth.

Indian tribes are independent sovereigns, but at the same time

“domestic dependent nations,” Cherokee Nation v. Georgia,

30 U.S. 1, 2 (1831), and subject to the “plenary and

exclusive” authority of Congress, United States v. Lara, 541

U.S. 193, 200 (2004). As the government notes, due to

Congress’s plenary powers, every Indian tribe could be

considered “under Federal jurisdiction” in some sense.

See Gov’t Br. 51. As already discussed, the legislative history

21

provides no further clues, except that the jurisdictional nexus

was meant as some kind of limiting principle.

See Subcommittee Hearing at 266. Precisely how it would

limit the universe of recognized tribes is unclear; Assistant

Solicitor of the Interior Felix Cohen contemporaneously

described the Senate bill as including the term, “‘now under

Federal jurisdiction’, whatever that may mean.” S.A. 3

(emphasis added). Interior correctly predicted at the time that

the phrase was “likely to provoke interminable questions of

interpretation.” J.A. 398 (agency analysis of differences

between House and Senate bills, 1934). Indeed it has. We

easily conclude that the phrase is ambiguous.

The Secretary’s two-part test is furthermore reasonable.

It makes sense to take treaty negotiations into account, as one

of several factors reflecting authority over a tribe, even if they

did not ultimately produce agreement. This is all the more so

given the context within which the particular negotiations at

issue occurred. The Cowlitz refused to sign an 1855 land

cession treaty proposed at the Chehalis River Treaty Council,

J.A. 625, whereby Governor Stevens of the Washington

Territory and other federal agents sought to move the Cowlitz

to a reservation on the Pacific Coast, J.A. 660-68. The

Cowlitz resisted relocation and refused the treaty, J.A. 667,

but years later the United States offered the Cowlitz’s land for

sale to settlers without compensation anyway, J.A. 498. As

the District Court explained, the fact that the government

nevertheless took the Cowlitz land even after the tribe resisted

the treaty corroborates that the government treated the

Cowlitz as under its jurisdiction.

We are not persuaded that the Secretary’s interpretation

is unreasonable for failure to require a formal, government-to-

government relationship carried out between the tribe and the

highest levels of the Interior Department. See Clark County

22

Br. 24; Grand Ronde Br. 28 (“[T]he existence of a

government-to-government relationship is the sine qua non of

federal jurisdiction.”). The statute does not mandate such an

approach, which also does not follow from any ordinary

meaning of jurisdiction. Whether the government

acknowledged federal responsibilities toward a tribe through a

specialized, political relationship is a different question from

whether those responsibilities in fact existed. And as the

Secretary explained, we can understand the existence of such

responsibilities sometimes from one federal action that in and

of itself will be sufficient, and at other times from a “variety

of actions when viewed in concert.” J.A. 261. Such

contextual analysis takes into account the diversity of kinds of

evidence a tribe might be able to produce, as well as evolving

agency practice in administering Indian affairs and

implementing the statute. It is a reasonable one in light of the

remedial purposes of the IRA and applicable canons of

statutory construction.

Appellants make several additional arguments urging that

the Secretary applied the two-part test in an arbitrary and

capricious manner. Appellants maintain that the Cowlitz

were “terminated” as a tribe as of 1934, which is the antithesis

of being under federal jurisdiction, and that “the Secretary did

not even address” this fact. Grand Ronde Br. 26. Appellants

further believe that the Tribe conceded that they had been

terminated before the NIGC, while advocating that it met the

restored-lands exception to the IGRA, and that the

Commission accepted this concession.

This version of events is somewhat of a

mischaracterization. First, the Secretary did consider whether

the Cowlitz were previously terminated, and found “no clear

evidence” that the government terminated the Cowlitz, or that

the tribe otherwise lost that status. J.A. 264. Second, the

23

NIGC opinion is of little value when it comes to this

particular inquiry. In order to meet the restored-lands

exception – a requirement of the IGRA, not the IRA – the

Commission interpreted the IGRA to require, inter alia, a

period of non-recognition by the government. J.A. 1362

(citing Grand Traverse Band of Ottawa & Chippewa Indians

v. Office of U.S. Atty. for the W. Div. of Mich., 369 F.3d 960,

967 (6th Cir. 2004)). So, whereas Appellants point to a 1933

quotation within the NIGC opinion, where Commissioner

Collier said the Cowlitz were “no longer in existence as a

communal entity,” Grand Ronde Br. 24-25 (citing J.A. 1364),

that sentiment goes to the government’s mistaken belief at the

time that the Cowlitz had been absorbed into the greater

population. That error is consistent with the NIGC’s

conclusion that “the historical evidence establishes that the

United States did not recognize the Cowlitz Tribe as a

governmental entity from at least the early 1900s until 2002.”

J.A. 1363 (emphasis added). It is a conclusion about

recognition – not whether the Tribe was under Federal

jurisdiction. Finally, neither the Secretary nor this Court is

bound by the Cowlitz’s previous position before the NIGC.

The Cowlitz used the term, “de facto termination,” J.A. 1289,

but essentially argued that the government failed to recognize

it for a period of time, which is true.

The only additional argument we need address is the

assertion that the ROD is contrary to the agency’s history of

“consistently” finding the Cowlitz were not under federal

jurisdiction in 1934. Grand Ronde Br. 30. Appellants focus

on yet another lone sentence within an agency technical report

produced during the federal acknowledgment process. See

J.A. 1076 (discussing documents that purportedly showed the

Cowlitz were not a “reservation tribe under Federal

jurisdiction or under direct Federal supervision”). We think

this statement reflects a narrower and dated understanding

24

that equated land and direct supervision with jurisdiction. But

the Secretary explained in the ROD that jurisdiction can be

shown in more ways than that, see J.A. 260-63, and

adequately documented the dealings that evidenced

jurisdiction in 1934, see J.A. 267 (relying on a March 16,

1934 instruction from the Taholah agency to place Cowlitz

Indians on the census roll for the Quinault Reservation);

J.A. 269 (citing evidence of the agency granting “allotments

[on the Quinault Reservation] to eligible Cowlitz Indians

during the period from 1905 to 1930”); J.A. 269 (referencing

agency approval of an attorney contract that was in the name

of “the Cowlitz Tribe or Band of Indians”). At the end of the

day, there is a large and complex record of Interior

interactions with the Cowlitz for almost a century. The

erroneous assumption that the Cowlitz no longer existed may

have colored lone statements, when taken out of context,

touching on aspects of jurisdiction over the Tribe. However,

after reviewing the record in its entirety, we are confident that

the Secretary reasonably determined the contacts between the

United States and the Cowlitz from 1855 through 1934

satisfied part one of the two-part test, and that those contacts

remained intact despite what was at times the agency’s

equivocal exercise of its authority and responsibilities.

C.

Appellants next dispute the Secretary’s determination

that the Cowlitz parcel met the initial-reservation exception

under the IGRA, so as to permit gaming on that land.

To recall, the IGRA’s initial-reservation exception from

its ban against gaming on Indian lands includes those lands

taken into trust as “the initial reservation of an Indian tribe

acknowledged by the Secretary under the Federal

acknowledgment process.” 25 U.S.C. § 2719(b)(1)(B)(ii).

25

Interior regulations require a tribe seeking to come within that

exception to show, inter alia, that the land in question is

“within an area where the tribe has significant historical

connections.” 25 C.F.R. § 292.6(d) (emphasis added). This is

in contrast to the restored-lands exception, which requires at

least “a significant historical connection to the land” itself.

Id. § 292.12 (b) (emphasis added). A tribe can show

significant historical connections by “demonstrat[ing] by

historical documentation the existence of the tribe’s villages,

burial grounds, occupancy or subsistence use in the vicinity of

the land.” Id. § 292.2. The Secretary has interpreted

“vicinity” in both the initial-reservation and restored-lands

context to mean “those circumstances” of use and occupancy

“lead[ing] to the natural inference that the tribe also made use

of the” parcel in question.” J.A. 292; see also J.A. 4518,

4534.

The Secretary determined that the Cowlitz met the initial-

reservation exception after reviewing a number of historical

sources, including those relied on by the ICC and the

government during the federal acknowledgment

determination. The Secretary identified evidence of Cowlitz

use or occupancy three miles northwest of the Cowlitz parcel,

J.A. 295 (lodges and about 100 “Kowalitsk”), ten miles south,

J.A. 296 (trading presence), and less than three miles north

from the Cowlitz Parcel, J.A. 300-01 (Cowlitz boatmen), as

well as “exclusive use and occupancy . . . within 14 miles,”

J.A. 298 (ICC decision). The ROD further relied on signs of

a major Cowlitz battle in the 1800s less than three miles from

the parcel, J.A. 299, and, only six miles from the parcel,

hunting by the Cowlitz Indian Zack, who also assisted settlers

during the 1855-1856 Indian war, J.A. 300. The record also

includes documentation of the Tribe’s presence at Fort

Vancouver, J.A. 297, 301, which is south of the city of

Vancouver, Washington, which itself is south of the land in

26

question. All of this provided sufficient “historical evidence

of occupancy and use by the Cowlitz of lands in the vicinity

of the Cowlitz Parcel,” and “significant historical connections

to the Cowlitz Parcel.” J.A. 302.

Appellants attack “[t]he Secretary’s IGRA ruling [as]

constitut[ing] the worst sort of ad hoc decision-making.”

Grand Ronde Br. at 42. Specifically, they allege the

Secretary: 1) used the wrong standard; 2) failed to recognize

that, under the right standard, the initial-reservation test

requires significant historical connections “to the parcel

itself,” which the Cowlitz cannot show; and 3) departed from

agency precedent.

Appellants base their first two objections on two

perceived ambiguities within the ROD. At times the

Secretary used language indicating not just that the Cowlitz

had a demonstrable presence within an area of significant

historical connection to the parcel, but that the evidence

showed a connection to the parcel itself. Compare J.A. 291

(“We determine that the Cowlitz Tribe has significant

historical connections to the land in the vicinity of the Cowlitz

Parcel.”), with J.A. 303 (“The key question is whether the

historic Cowlitz Indians had significant historical connections

with the Cowlitz Parcel.”). Second, although the Secretary

cited the Scotts Valley Opinion, explaining that whether a

tribe’s use and occupancy occurred “within the vicinity” of

the land at issue asks whether the circumstances “lead to the

natural inference that the tribe also made use of the parcel in

question,” J.A. 292 (internal quotation marks omitted), the

Secretary did not again use the words, “natural inference,” in

explaining how the numerous pieces of evidence supported

the ROD’s conclusion that the parcel fulfilled the IGRA’s

regulatory requirements.

27

Seeing as the Secretary ultimately “conclude[d] that the

Tribe has significant historical connections with the Cowlitz

Parcel,” J.A. 302, any error the Secretary may have made in

that regard did not amount to reversible error, see 5 U.S.C.

§ 706 (“[D]ue account shall be taken of the rule of prejudicial

error.”). We are unconvinced that the Secretary used the

wrong standard. If anything, the Secretary used the correct

standard but found more than what was necessary for the

initial-reservation exception. To be clear, contrary to the

interpretation pressed by Grand Ronde, this exception does

not mandate that historical documentation implicate the actual

land where gaming will take place. The regulation provides

that the Cowlitz had only to show that the parcel was “within

an area where the tribe has significant historical connections.”

25 C.F.R. § 292.6(d) (emphasis added). Indeed, the

regulation’s breadth comports with the agency’s rejection of

various, strict forms of the test suggested at the time of the

regulation’s adoption, which the agency feared might “create

too large a barrier to tribes in acquiring lands.” Gaming on

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

29,354, 29,360 (May 20, 2008); see also Citizens Exposing

Truth, 492 F.3d at 467 (“IGRA’s [initial-reservation]

exception ‘ensur[es] that tribes lacking reservations when

IGRA was enacted are not disadvantaged relative to more

established ones.’”) (quoting City of Roseville, 348 F.3d at

1030). Thus, the agency’s interpretation of its regulation was

in line with its intent at the time of promulgation, and any

ambiguity in the language used by the agency as it

exhaustively analyzed evidence dating back to the early 1800s

only shows the ROD went above and beyond fulfilling the

regulatory requirements. Cf. PDK Labs. Inc. v. U.S. D.E.A.,

362 F.3d 786, 799 (D.C. Cir. 2004) (“If the agency’s mistake

did not affect the outcome, if it did not prejudice the

petitioner, it would be senseless to vacate and remand for

reconsideration.”).

28

Moving on, Appellants urge that the ROD broke from

past precedent, but the gist of their argument is really that

they disagree with the Secretary’s finding that the record

establishes “significant” connections to the parcel. See Clark

County Br. 47 (“[T]he Secretary has required connections

based on subsistence use and occupancy to be enduring,

substantial, and non-speculative.” (emphasis deleted)); Grand

Ronde Br. 36 (“[N]ot just any historical connections will

do.”). There is no “sharp break” from the opinions regarding

the Scott’s Valley Band of Pomo Indians, Grand Ronde

Br. 39, the Guidiville Band of Pomo Indians, Clark County

Br. 50-51 & n.20, or any others, see Grand Ronde Br. 40 n.18.

To the extent Appellants think this precedent shows Interior

required a higher quantum of evidence in previous cases,

those were restored-lands opinions, see J.A. 4303, 4336,

where a connection was made “often [to] the very heart of the

tribe’s territory.” Grand Ronde 39; see also 25 C.F.R.

§ 292.12(b) (necessitating “a significant historical connection

to the land” (emphasis added)).

Appellants’ strongest argument is that the agency in an

opinion to the Guidiville Band said that documentation of a

trade route was insufficient to establish subsistence use

because “something more than evidence that a tribe merely

passed through a particular area is needed.” J.A. 4316. At

first glance, that is in contrast to the Cowlitz ROD, where

“[e]vidence of trade and trade routes . . . [wa]s a key

consideration.” J.A. 298. The Cowlitz ROD does not stop

there, however, but continues to distinguish the Guidiville

Opinion by explaining that it had not previously “conclude[d]

that activities associated with a trade route or trading

activities in general can never constitute evidence of

significant historical connections.” J.A. 299. “[S]uch

activities have to be substantial enough to be more than ‘a

transient presence in the area,’” explained the Secretary,

29

J.A. 299, which is the same as its prior interpretation of the

regulation, see J.A. 4316 (requiring in the Guidiville Opinion

“something more than a transient presence in an area”).

The ROD is supported by substantial evidence amply

showing that Interior found the Cowlitz parcel to be within a

broader area of historical significance to the Tribe. J.A. 292-

302. The decision is not otherwise arbitrary or capricious,

and thus we find no merit in Appellants’ challenges on this

front.

D.

The Clark County Appellants alone bring these next

claims stemming from the Tribe’s membership growth in the

time since its federal acknowledgment application. We reject

them all.

In April 2006, Interior issued a DEIS for the casino. The

agency subsequently received comments requesting that it

provide the tribe’s business plan, which is required as part of

the tribe’s fee-to-trust application package. See 25 C.F.R.

151.11(c) (“Where land is being acquired for business

purposes, the tribe shall provide a plan which specifies the

anticipated economic benefits associated with the proposed

use.”). The plan showed the Tribe had 3,544 members. It also

stated the Tribe would require approximately $113 million

annually for its “unmet needs,” or, in other words, to fund

government infrastructure, programs, and services. The

Secretary appended the plan to the FEIS, which included the

$113 million figure from the plan in the FEIS Purpose and

Need statement.

Appellants protest that the Tribe’s new membership level

from the business plan represents a dramatic increase from

30

1,482 members in 2002, when the Cowlitz were first federally

acknowledged. See Clark County Br. 27-28. Under IRA

regulation 25 C.F.R. § 83.12(b) (1994), 7 the Cowlitz had

submitted a list of members as part of the federal

acknowledgment process, which became its official “base

roll” for federal funding and other purposes. That regulation

also provides that additions to the roll must meet certain

criteria, such as “maintaining significant social and political

ties with the tribe,” see Clark County Mot. Summ. J. 25

(citing 25 C.F.R. § 83.12(b) (1994)), and so Clark County

believes the agency had a duty to verify the membership

increase, see Clark County Br. 27-28. Clark County

additionally argues that the agency had a duty under NEPA’s

implementing regulations to verify the Tribe’s self-reported

unmet economic needs. Clark County Br. 35-39. Appellants’

concern in that regard relates back to the agency’s

consideration of the range of reasonable alternatives, see

Confederated Tribes, 75 F. Supp. 3d at 420-21; Interior had

originally identified nineteen possible project locations, but

eliminated five locations that were north of the parcel as too

inconvenient to the Seattle and Portland markets to

“adequately meet the economic objectives and needs of the

Tribal government,” id. at 420 (citing J.A. 2805).

We first reject any claim regarding 25 C.F.R. § 83.12(b)

as forfeited. Clark County never raised to the agency a duty

to verify membership enrollment pursuant to this regulation.

The best Appellants can point to are letters expressing the

County’s concern to the agency about the business plan and

the Tribe’s unmet needs in reference to the NEPA process.

7

In 2015, Interior updated and revised the Part 83 regulations,

eliminating this particular “base roll” limitation provision. See

Federal Acknowledgment of American Indian Tribes, 80 Fed. Reg.

37,862, 37,885 (July 1, 2015).

31

See J.A. 2144-46 (letter to BIA submitting supplemental

comments to the DEIS); J.A. 2375 (letter to Interior arguing

that the tribe is using inflated member statistic in its “Business

Plan to inflate its tribal needs to constrain BIA review and

short circuit the NEPA process”); see also Clark County

Br. 30 (citing to instances in the record where it framed the

expansion issue in terms of NEPA reasonable alternatives).

Not only did Clark County fail to invoke Section 83.12(b) in

express terms, but it was not “necessarily implicated” in

discussion of an entirely different statutory scheme.

NetworkIP, LLC v. FCC, 548 F.3d 116, 122 (D.C. Cir. 2008).

And despite referencing NEPA in these letters, Appellants fail

to point us to any of their comments to the FEIS raising

concerns about Cowlitz membership levels. This directly

undercuts their claim that the Secretary failed to address

questions about the Tribe’s expanded enrollment. While

some comments responding to the FEIS referenced the

Tribe’s unmet needs figure, as opposed to membership levels,

see, e.g., J.A. 3381, 3413, the Secretary fully addressed all

questions about the business plan actually raised before the

agency, see J.A. 191 (determining agency review of a

“Tribe’s internal economic planning strategy document” to

“be inappropriate and contrary to federal Indian policies

encouraging tribal sovereignty, self-determination and self-

governance”).

We are similarly unpersuaded that the Secretary had an

obligation under NEPA regulation 40 C.F.R. § 1506.5(a) to

verify that the Cowlitz’s unmet needs report was accurate.

See Clark County Br. 35-39. That regulation provides that

“[i]f an agency requires an applicant to submit environmental

information for possible use by the agency in preparing an

environmental impact statement . . . [t]he agency shall

independently evaluate the information submitted and shall be

responsible for its accuracy.” Id. § 1506.5(a) (emphasis

32

added). Neither the annual unmet needs figure complained of

here, nor the membership numbers that purportedly inflated

the Tribe’s unmet needs, are environmental in nature. It may

be the case that Section 1506.5(a) might in other

circumstances apply to some kind of information that is

simultaneously socioeconomic and environmental, as

Appellants argue. See Clark County Br. 37. But at least as

presented here, Clark County’s quarrel is that the agency’s

failure to do its own investigation resulted in excluding from

consideration reasonable alternatives located farther away

from competing casino interests. See Clark County Br. 38;

see also J.A. 3366 (lamenting the economic impact of the

“emergence of a tribal casino on the outskirts of” La Center,

Washington). That is the gravamen of this particular

complaint, which we are not convinced is appropriately

pursued under Section 1506.5. As Clark County did not

challenge on any other grounds the decision to exclude certain

allegedly reasonable alternatives from the FEIS, see

Confederated Tribes, 75 F. Supp. 3d at 419-20, we have no

occasion to rule on those issues. Clark County ultimately

cannot prevail in any of its claims related to the Tribe’s

membership or business plan.

***

For all of the foregoing reasons, we affirm the judgment

of the District Court in its entirety.

So ordered.