Petition for Writ of Certiorari — Stand Up for California!, et al., Petitioners v. Department of the Interior, et al.

Supreme Court briefNov 8, 2021

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No. 21-___

IN THE

Supreme Court of the United States

————

STAND UP FOR CALIFORNIA!, ET AL.,

Petitioners,

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

Respondents,

AND

WILTON RANCHERIA, CALIFORNIA,

Intervenor-Respondent.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia

————

PETITION FOR A WRIT OF CERTIORARI

————

JENNIFER A. MACLEAN

Counsel of Record

BENJAMIN S. SHARP

PERKINS COIE LLP

700 Thirteenth St., NW

Suite 800

Washington, DC 20005

(202) 434-1648

jmaclean@perkinscoie.com

bsharp@perkinscoie.com

Counsel for Petitioners

Stand Up for California!

November 8, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

The California Rancheria Termination Act of 1958

directed the Secretary of the Interior to distribute the

land and assets of 41 rancherias to resident Indians.

Pub. L. No. 85-671, 72 Stat. 619. The Indians who received a distribution of rancheria property ceased to

be eligible for services provided to Indians, and federal statutes affecting Indians no longer applied to

them. § 10(b), 72 Stat. 621.

The Indians living on the Wilton Rancheria voted

to be included in the Act, and federal supervision

over them was terminated. Decades later, the Secretary declared that the Wilton Indians were once

again entitled to Indian services. The Secretary then

acquired land in trust on their behalf under Section

5 of the Indian Reorganization Act of 1934, 25 U.S.C.

§ 5108, which authorizes the Secretary to acquire

land “for the purpose of providing land for Indians.”

The question presented is:

Whether the Secretary can acquire land in trust

on behalf of Indians whose federal supervision was

terminated by Congress.

PARTIES TO THE PROCEEDING

Petitioners are Stand Up for California!, an entity

registered with the California Secretary of State as a

nonprofit, public service corporation; and individuals

Patty Johnson, Joe Teixeira, and Lynn Wheat.

Respondents who were defendants and appellees

below are the Department of the Interior; Debra A.

Haaland, in her official capacity as Secretary of the

Department of the Interior; Bryan Newland, in his

official capacity as Assistant Secretary–Indian Affairs of the Department of the Interior; the Bureau of

Indian Affairs of the Department of the Interior; and

Amy Dutchske, in her official capacity as Pacific Regional Director, Bureau of Indian Affairs. *

The Wilton Rancheria was an intervenor and appellee below and is a respondent here.

RULE 29.6 STATEMENT

Stand Up for California! represents that it has no

parent corporation and that no publicly held corporation owns 10% or more of its stock.

* In the court of appeals, Secretary Haaland was automati-

cally substituted for her predecessor under Federal Rule of Appellate Procedure 43(c)(2). In the courts below, defendants-appellants included David L. Bernhardt, Ryan K. Zinke, and Sally

Jewell.

Secretary Newland was automatically substituted for his predecessor under Federal Rule of Appellate Procedure 43(c)(2). In

the courts below, defendants-appellants included John

Tahsuda III, Tara Sweeney, Michael S. Black, and Lawrence S.

Roberts.

iii

STATEMENT OF RELATED PROCEEDINGS

Pursuant to this Court’s Rule 14.1(b)(iii), the following proceedings are related to this case:

Stand Up for California! v. U.S. Dep’t of the Interior, No. 1:17-cv-00058, 298 F. Supp. 3d 136 (D.D.C.

Feb. 28, 2018) (granting summary judgment on

Counts I and II in favor of defendants).

Stand Up for California! v. U.S. Dep’t of the Interior, No. 1:17-cv-00058, 410 F. Supp. 3d 39 (D.D.C.

Oct. 7, 2019) (granting summary judgment on Counts

III through V in favor of federal defendants).

Stand Up for California! v. U.S. Dep’t of the Interior, No. 19-5285, 994 F.3d 616 (D.C. Cir. Apr. 16,

2021) (affirming summary judgment for defendants;

denying petition for rehearing en banc on June 11,

2021).

There are no other proceedings in state or federal

trial or appellate courts directly related to this case

within the meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

Question Presented .................................................. i

Parties to the Proceeding ........................................ ii

Rule 29.6 Statement ................................................ ii

Statement of Related Proceedings ......................... iii

Table of Contents.................................................... iv

Table of Authorities ............................................... vii

Petition for a Writ of Certiorari .............................. 1

Opinions Below ........................................................ 1

Jurisdiction .............................................................. 1

Statutes Involved .................................................... 1

Introduction ............................................................. 3

Statement ................................................................ 4

Reasons for Granting the Petition .......................... 8

I. This Court should grant certiorari to

clarify that the Secretary cannot

acquire land in trust for Indians whose

federal supervision was terminated by

Congress. ....................................................... 8

A. Congress passed the Termination

Act to end federal supervision over

the enumerated rancherias and

resident Indians. ...................................... 9

TABLE OF CONTENTS

(continued)

Page(s)

B. The stipulated settlement

purporting to “restore” the Wilton

Indians contravenes the

Termination Act and is contrary to

this Court’s decisions. ............................ 10

C. The List Act does not confirm the

stipulated settlement or grant the

Secretary power to acquire trust

land for the Wilton Indians. .................. 14

II. Given the jurisdictional significance of

trust decisions, this case raises an

important question of federal law that

this Court should resolve. ........................... 16

A. The decision below expands the

Secretary’s power to take land into

trust. ....................................................... 17

B. By reading the List Act to confirm

the Secretary’s power to recognize

new tribes by stipulated settlement,

the court of appeals vastly expanded

the Secretary’s power. ............................ 19

Conclusion ............................................................. 21

APPENDIX

APPENDIX A: Order, Stand Up For

California!, et al., v. United States

Department of the Interior, et al., No. 195285 (D.C. Cir. June 11, 2021) ......................... 1a

TABLE OF CONTENTS

(continued)

Page(s)

APPENDIX B: Opinion, Stand Up For

California!, et al., v. United States

Department of the Interior, et al., No. 195285, 994 F.3d 616 (D.C. Cir. Apr. 16,

2021) ................................................................. 3a

APPENDIX C: Memorandum Opinion, Stand

Up For California!, et al., v. United States

Department of the Interior, et al.,

California, No. 17-cv-00058, 410 F. Supp.

3d 39 (D.D.C. Oct. 7, 2019) ............................. 31a

APPENDIX D: Record of Decision: Trust

Acquisition of 35.92+/- acres in the City of

Elk Grove, California, for the Wilton

Rancheria (Jan. 19, 2017) (excerpt) .............. 74a

APPENDIX E: Stipulation and Order for

Entry of Judgment; Wilton Miwok

Rancheria v. Salazar, No. C-07-02681

(N.D. Cal. June 8, 2009) .............................. 105a

APPENDIX F: Wilton Rancheria Request for

Final Termination (July 13, 1964) .............. 142a

APPENDIX G: Wilton Rancheria Completion Statement (July 19, 1961) ........ 144a

APPENDIX H: California Rancheria

Termination Act of 1958, Pub. L. No. 85671, 72 Stat. 619 ........................................... 147a

APPENDIX I: Federally Recognized Indian

Tribe List Act of 1994 (List Act), Pub. L.

No. 103-454, 108 Stat. 4791 ........................ 155a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Agua Caliente Band of Cahuilla Indians

v. Riverside Cnty.,

749 Fed. App’x 650 (9th Cir. 2019)...................... 21

Agua Caliente Tribe of Cupeño Indians

of Pala Reservation v. Sweeney,

932 F.3d 1207 (9th Cir. 2019) .............................. 19

Atkinson Trading Co. v. Shirley,

532 U.S. 645 (2001) ................................................ 5

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) .............................................. 10

Carcieri v. Salazar,

555 U.S. 379 (2009) ...................................... passim

Chicago & Grand Trunk Ry. Co. v.

Wellman,

143 U.S. 339 (1892) ........................................ 13, 20

Confederated Tribes of Chehalis

Reservation v. Thurston Cnty. Bd. of

Equalization,

724 F.3d 1153 (9th Cir. 2013) .............................. 21

County of Yakima v. Confederated

Tribes & Bands of the Yakima

Indian Nation,

502 U.S. 251 (1992) ................................................ 5

De Coteau v. Dist. Cnty. Court for Tenth

Jud. Dist.,

420 U.S. 425 (1975) .............................................. 16

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Duncan v. Andrus,

517 F. Supp. 1 (N.D. Cal. 1977) ............... 12, 13, 14

Dunn v. Carey,

808 F.2d 555 (7th Cir. 1986) ................................ 12

Exec. Bus. Media, Inc. v. U.S. Dep’t of

Def.,

3 F.3d 759 (4th Cir. 1993) .............................. 10, 11

Joint Tribal Council of the

Passamaquoddy Tribe v. Morton,

528 F.2d 370 (1st Cir. 1975) ................................ 15

Local No. 93, Int’l Ass’n of Firefighters,

AFL-CIO C.L.C. v. City of Cleveland,

478 U.S. 501 (1986) .............................. 4, 10, 11, 13

Martin v. Wilks,

490 U.S. 755 (1989) .............................................. 13

Mashpee Wampanoag Tribe v. Bernhardt,

466 F. Supp. 3d 199 (D.D.C. 2020) ..................... 20

McGirt v. Oklahoma,

140 S.Ct. 2452 (2020) ................................. 4, 14, 21

Mishewal Wappo Tribe of Alexander

Valley v. Jewell,

84 F. Supp. 3d 930 (N.D. Cal. 2015),

aff’d 688 Fed. App’x 480 (9th Cir.

2017) ..................................................................... 18

Montoya v. United States,

180 U.S. 261 (1901) ........................................ 15, 19

TABLE OF AUTHORITIES

(continued)

Page(s)

New York v. Shinnecock Indian Nation,

686 F.3d 133 (2d Cir. 2012) ................................. 21

Nisenan Tribe of Nevada City

Rancheria v. Jewell,

650 Fed. App’x 497 (9th Cir. 2016)...................... 18

Oklahoma v. Bosse,

141 S.Ct. 2891 (2021), petition for

cert. filed (U.S. Aug. 6, 2021) ............................... 21

Otherson v. Dep’t of Justice, INS,

711 F.2d 267 (D.C. Cir. 1983) .............................. 13

Raines v. Byrd,

521 U.S. 811, 820 (1997) ..................................... 19

Shoshone-Bannock Tribes v. Reno,

56 F.3d 1476 (D.C. Cir. 1995) .............................. 11

Smith v. United States,

515 F. Supp. 56 (N.D. Cal. 1978) ................... 13, 14

Stark v. Wickard,

321 U.S. 288 (1944) .............................................. 10

Table Bluff Band of Indians v. Andrus,

532 F. Supp. 255 (N.D. Cal. 1981) ................. 13, 14

Tillie Hardwick v. United States,

No. 79-cv-1710 (N.D. Cal. Nov. 13,

2020) ............................................................... 13, 14

United States v. Beebe,

180 U.S. 343 (1901) .............................................. 10

United States v. Candelaria,

271 U.S. 432 (1926) .............................................. 15

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Carpenter,

526 F.3d 1237 (9th Cir. 2008) .............................. 11

United States v. Sandoval,

231 U.S. 28 (1913) ................................................ 15

CONSTITUTION, STATUTES, AND REGULATIONS

U.S. Const. art. II, § 3 ................................................. 8

Act of Aug. 1, 1914, Pub. L. No. 160, 38

Stat. 582 ................................................................. 4

Act of Jun. 21, 1906, Pub. L. No. 257, 34

Stat. 325 ................................................................. 4

Auburn Indian Restoration Act, Pub. L.

No. 103-434, § 202, 108 Stat. 4533

(1994) .................................................................... 12

California Rancheria Termination Act

of 1958, Pub. L. No. 85-671, 72 Stat.

619 ................................................................ passim

Federally Recognized Indian Tribe List

Act of 1994, Pub. L. No. 103-454, 108

Stat. 4791 ..................................................... passim

Graton Rancheria Restoration Act, Pub.

L. No. 106–568, § 1404, 114 Stat.

2939 (2000) ........................................................... 12

House Concurrent Resolution 108, 67

Stat. B132 (1953) ............................................... 5, 9

Indian Reorganization Act of 1934

Section 5, 25 U.S.C. § 5108 .............................. 3, 16

TABLE OF AUTHORITIES

(continued)

Page(s)

Indian Reorganization Act, ch. 576, 48

Stat. 984 ................................................................. 3

Klamath Indian Tribe Restoration Act,

Pub. L. No. 99-398, 100 Stat. 849

(1986) .................................................................... 17

Menominee Restoration Act of 1973,

Pub. L. No. 93-196, 87 Stat. 770.......................... 17

Paiute Indian Tribe of Utah Restoration

Act, Pub. L. No. 96-227 § 7, 94 Stat.

317 (1980) ............................................................. 17

Paskenta Rancheria Restoration Act,

Pub. L. No. 103-454, § 303, 108 Stat.

4793 (1994) ........................................................... 12

Siletz Indian Tribe Restoration Act,

Pub. L. No. 95-195, 91 Stat. 1415

(1977) .................................................................... 17

Ysleta del Sur Pueblo and Alabama and

Coushatta Indian Tribes of Texas

Restoration Act, Pub. L. No. 100-89,

101 Stat. 666 (1987) ............................................. 17

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 1331 .......................................................... 7

25 C.F.R. part 83 ............................................. 2, 15, 19

25 C.F.R. § 1.4 ........................................................... 16

25 C.F.R. § 83.4(c) ..................................................... 15

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

OTHER AUTHORITIES

1 F. Cohen, Handbook of Federal Indian

Law § 3.02[3] (N. Newton ed. 2012) .................... 15

18A C. WRIGHT, A. MILLER & E. COOPER,

FEDERAL PRACTICE AND PROCEDURE

§ 4443 (3d ed. 2021 Update) ................................ 13

29 Fed. Reg. 13,146 (Sept. 15, 1964) .......................... 7

43 Fed. Reg. 39,361 (Sept. 5, 1978) .......................... 15

78 Fed. Reg. 67,928 (Nov. 13, 2013) ......................... 20

81 Fed. Reg. 10,477 (Mar. 1, 2016) ........................... 20

86 Fed. Reg. 32,974 (June 23, 2021) .......................... 7

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts 217 (2012) ......................................... 14

Assistant Secretary–Indian Affairs,

U.S. Dep’t of the Interior, Letter to

Tribal Leader (Sept. 10, 2021) ............................. 20

Charles F. Wilkinson & Eric R. Biggs,

The Evolution of the Termination

Policy, 5 AM. INDIAN L. REV. 139

(1977) ...................................................................... 5

Congressional Research Service,

RL34325, Indian Gaming Regulatory

Act (IGRA): Gaming on Newly

Acquired Lands (Aug. 23, 2016) .......................... 18

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Hearings before the Subcommittee on

Indian Affairs on H.R. 2576 [and

other] bills to provide for the

distribution of the land and assets of

certain Indian rancherias and

reservations in California, and for

other purposes, 85th Cong. 11 (1957)

(Hearings) ........................................................... 5, 6

Henry Campbell Black, Handbook on

the Construction and Interpretation

of the Laws 255 (2d ed. 1911) .............................. 14

House Concurrent Resolution 108, 67

Stat. B132 (1953) (H.R. 108).............................. 5, 9

Theodore H. Haas, Ten Years of Tribal

Government Under the I.R.A., U.S.

Indian Service (1947) ............................................. 6

U.S. Dep’t. of the Interior, Investigative

Report of the Tejon Indian Tribe

(Jan. 9, 2013) ........................................................ 19

U.S. Dep’t of the Interior, Obama Administration Exceeds Ambitious Goal

to Restore 500,000 Acres of Tribal

Homelands (Oct. 12, 2016)................................... 20

PETITION FOR A WRIT OF CERTIORARI

Stand Up for California!, Patty Johnson, Joe

Teixeira, and Lynn Wheat respectfully petition for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

3a–30a) and order denying rehearing en banc (App.,

infra, 1a–2a) are reported at 994 F.3d 616. The opinion of the district court (App., infra, 31a–74a) is reported at 410 F. Supp. 3d 39.

JURISDICTION

The court of appeals issued its opinion on April 16,

2021, and denied rehearing en banc on June 11, 2021.

On March 19, 2020, this Court issued an order extending the filing deadline for all petitions for certiorari to 150 days from the date of the lower court’s order denying discretionary review. On July 19, 2021,

this Court rescinded that order, but only for petitions

for certiorari from judgments issued after that date.

This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

The California Rancheria Termination Act of

1958, Pub. L. No. 85-671, 72 Stat. 619, 621 (App., infra, 147a–154a) provides in pertinent part:

That the lands, including minerals, water

rights, and improvements located on the lands,

and other assets of the following rancherias and

reservations in the State of California shall be

distributed in accordance with the provisions of

this Act: . . .

***

After the assets of a rancheria or reservation

have been distributed pursuant to this Act, the

Indians who receive any part of such assets,

and the dependent members of their immediate

families, shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians, all statutes of the United States which affect Indians

because of their status as Indians shall be inapplicable to them. . . .

The Federally Recognized Indian Tribe List Act

of 1994, Pub. L. No. 103-454, 108 Stat. 4791 (App.,

infra, 155a–158a) provides in pertinent part:

Congress finds that—

***

(3) Indian tribes presently may be recognized by

Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal

Regulations denominated “Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;” or by a decision of a

United States court;

***

(5) Congress has expressly repudiated the policy

of terminating recognized Indian tribes, and has

actively sought to restore recognition to tribes

that previously have been terminated; . . .

INTRODUCTION

In 1958, Congress directed the Secretary of the Interior to distribute the property and assets of 41 California rancherias whose members voted to terminate federal supervision and obtain fee title to

rancheria lands. California Rancheria Termination

Act of 1958, Pub. L. No. 85-671, 72 Stat. 619. The Indians who received a distribution under the Termination Act are ineligible for Indian services, and “all

statutes of the United States which affect Indians because of their status as Indians shall be inapplicable

to them.” § 10(b), 72 Stat. 621 (App., infra, 153a).

The Indian Reorganization Act of 1934 (IRA), ch.

576, 48 Stat. 984 (25 U.S.C. 5101, et seq.), is one such

statute. Section 5 of the IRA authorizes the Secretary

to acquire land in trust, but only “for the purpose of

providing land for Indians.” 25 U.S.C. § 5108; Carcieri v. Salazar, 555 U.S. 379, 393 (2009). As a result,

any Indians who received rancheria assets under the

Termination Act cannot qualify for trust land because Section 5 of the IRA is inapplicable to them.

The Wilton Indians received fee title to rancheria

property under the Termination Act in 1961, and the

Secretary terminated federal supervision in 1964.

Yet the Secretary acquired trust land on their behalf

decades later, citing a 2009 court-approved settlement purporting to relieve the Wilton Indians from

the effects of the Termination Act.

The court of appeals agreed and held that “a courtapproved settlement agreement is sufficient to restore recognition of a tribe and to restore Indian status for members of that tribe . . . .” App., infra, 22a.

That decision conflicts with the plain language of the

Termination Act and ignores authority requiring a

consent decree to further the objectives of the statute

on which it is based. See Local No. 93, Int’l Ass’n of

Firefighters, AFL-CIO C.L.C. v. City of Cleveland,

478 U.S. 501, 525 (1986).

Acquiring land in trust disrupts the jurisdictional

balance among the federal government, the states,

and tribes. This disruption is felt acutely in California, where the Secretary acquires land in trust on behalf of 109 federally recognized tribes, including dozens that were terminated under the same circumstances as Wilton. Whether the Secretary has such

power is the same fundamental question that this

Court deemed worthy of review in Carcieri.

As the Court recently observed, “[i]f Congress

wishes to withdraw its promises, it must say so.”

McGirt v. Oklahoma, 140 S.Ct. 2452, 2482 (2020).

Here, it did—in unequivocal terms. Whether the Secretary can undo Congress’s work warrants review by

this Court.

STATEMENT

1. Between 1893 and 1929, Congress passed a series of appropriations acts to provide funds to purchase small tracts of land for homeless Indians living

in central and northern California. See, e.g., Act of

Jun. 21, 1906, Pub. L. No. 257, 34 Stat. 325, 333; Act

of Aug. 1, 1914, Pub. L. No. 160, 38 Stat. 582, 589.

Using appropriated funds, the Secretary purchased

approximately 54 “rancherias.” 1

Congress passed the IRA in 1934 to repudiate the

allotment policies of the late 19th century, provide

1 See https://libguides.sdsu.edu/c.php?g=494769&p=3389018.

for the health and welfare of Indians, and encourage

the reestablishment of tribal organization. See Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650 n.1

(2001); County of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation, 502 U.S. 251,

254–56 (1992). The Indians living on many of the

rancherias chose to organize under the Act. 2 Still, the

Act had assimilationist underpinnings, and the expectation was that Indians would transition away

from federal supervision. See Charles F. Wilkinson &

Eric R. Biggs, The Evolution of the Termination Policy, 5 AM. INDIAN L. REV. 139, 145 (1977). By the

1940s, frustration with the slow progress of assimilation under the IRA grew, and Congress began to

debate bills providing for the emancipation of Indians. Id. at 145–148.

After almost a decade of hearings and investigations, Congress adopted termination as official congressional policy. See House Concurrent Resolution

108, 67 Stat. B132, 150 (1953) (H.R. 108) (declaring

it “to be the sense of Congress that, at the earliest

possible time, all of the Indian tribes and the individual members thereof located within the States of California . . . should be freed from Federal supervision

and control”).

2. Congress enacted the Termination Act in furtherance of H.R. 108. See Hearings before the Subcommittee on Indian Affairs on H.R. 2576 [and other]

bills to provide for the distribution of the land and

2 See Theodore H. Haas, Ten Years of Tribal Government Un-

der

the

I.R.A.,

U.S.

Indian

Service

(1947),

https://www.doi.gov/sites/doi.gov/files/migrated/library/internet/subject/upload/Haas-TenYears.pdf.

assets of certain Indian rancherias and reservations

in California, and for other purposes, 85th Cong. 11

(1957) (Hearings) (Statement of Hatfield Chilson,

Acting Secretary of the Interior). Only those rancheria groups that, by a majority vote, sought “immediate termination of Federal trust responsibilities

without waiting for the enactment of a bill of

statewide applicability” were included in the Act. Id.

The Termination Act provides that “the lands, including minerals, water rights, and improvements located on the lands, and other assets of the [enumerated rancherias] shall be distributed” under a distribution plan jointly developed and approved by the

Secretary and resident Indians. Termination Act

§§ 1, 2, 72 Stat. 619 (App., infra, 147a–148a). Indians

who receive “any part” of rancheria assets (and their

dependents) cease to be eligible for Indian services

and “all statutes of the United States which affect Indians because of their status as Indians shall be inapplicable to them.” Id. at 153a, § 10(b).

3. The Wilton Rancheria is one of the 41 rancherias named in the Termination Act. Id. at 147a, § 1.

In 1955, the Indians living on the rancheria requested by formal resolution that they be given fee

title to their assignments. Hearings 19. The Wilton

Indians and the Secretary then developed a distribution plan in 1958 that was formally noticed and approved in 1959. App., infra, 6a, 128a–139a. The Secretary transferred fee title to rancheria lands to the

Wilton Indians in 1961. Id. at 144a–146a. Later, the

Department installed sanitation facilities at the Indians’ request. Id. at 142a–143a.

In September 1964, the Secretary published notice

that the distributees and their dependents were no

longer “entitled to any of the services performed by

the United States for Indians because of their status

as Indians.” Termination of Federal Supervision, 29

Fed. Reg. 13,146 (Sept. 15, 1964).

4. More than 40 years after termination, the Wilton Indians sued the Department seeking restoration. Compl., Wilton Miwok Rancheria v.

Kempthorne, No. 07-02681 (N.D. Cal., May 21, 2007),

ECF No. 1. They alleged that the Department had

failed to provide adequate road, water, and sanitation improvements and had breached its fiduciary

duties in formulating the 1958 distribution plan. Id.

¶ 1. After extended negotiations, the parties stipulated that Wilton had not been lawfully terminated

and that the Department would restore them and acquire land in trust on their behalf. App., infra, 108a–

127a. The California district court entered judgment.

Id. at 111a–112a.

In 2017, the Secretary acquired 35.92 acres of land

in Elk Grove, California in trust for the Tribe. Land

Acquisitions; Wilton Rancheria, 86 Fed. Reg. 32,974

(June 23, 2021). The Secretary reasoned that the

trust acquisition was not contrary to the Termination

Act because the United States is bound by the stipulated judgment, and the petitioners “have no standing to challenge it, more than seven years later.”

App., infra, 92a. In her view, “the List Act confirms

that a court-approved settlement agreement . . . is a

‘decision of a United States court’ that can restore”

Wilton’s status. Id. at 97a–98a.

5. The petitioners challenged the trust decision

in the United States District Court for the District of

Columbia, invoking that court’s jurisdiction under 28

U.S.C. § 1331. Wilton Rancheria intervened. The

district court granted summary judgment for respondents. App., infra, 73a–74a. Although the court

acknowledged that the “stark language” of the Termination Act supported petitioners’ argument, it

held that the stipulated settlement relieved the Wilton Indians from the Termination Act’s effects. Id. at

39a, 40a. The court also cited the “Findings” section

in the List Act, which it reasoned “specifically authorized the restoration of terminated tribes to their

pre-[Termination Act] status.” Id. at 41a.

The court of appeals affirmed, also concluding that

“a court-approved settlement agreement is sufficient

to restore recognition of a tribe and to restore Indian

status for members of that tribe notwithstanding the

[Termination] Act.” Id. at 22a. The court acknowledged that the List Act does not “expressly authorize

the recognition of tribes through court decisions,” but

read the Act as confirming that courts can recognize

tribes in the circumstances presented here. Id. at

23a.

Rehearing en banc was denied on June 11, 2021.

Id. at 1a–2a.

REASONS FOR GRANTING THE PETITION

I. This Court should grant certiorari to clarify

that the Secretary cannot acquire land in

trust for Indians whose federal supervision

was terminated by Congress.

The Secretary cannot circumvent an act of Congress. U.S. Const. art. II, § 3 (requiring the Executive

to “take care that the Laws be faithfully executed”).

The decision below departs from this fundamental

principle, warranting this Court’s review.

A. Congress passed the Termination Act to

end federal supervision over the enumerated rancherias and resident Indians.

Congress directed the Secretary to terminate 41

rancherias in unambiguous terms. The Termination

Act states “[t]hat the lands, including minerals, water rights, and improvements located on the lands,

and other assets” of 41 rancherias “shall be distributed in accordance with” the Act. App., infra, 147a,

§ 1 (emphasis added). The Secretary and the rancheria Indians “shall prepare” a distribution plan, which

“shall be carried out” upon approval. Id. at 148a, §

2(a),(b). Those receiving rancheria assets “shall not

be entitled” to Indian services, and Indian statutes

“shall be inapplicable to them.” Id. at 153a, § 10(b).

The statutory language leaves no doubt as to Congress’s intent. The wisdom of its termination policy

aside, Congress was clear that it intended to terminate the enumerated rancherias, consistent with its

statement of congressional policy in H.R. 108. The

Termination Act cannot plausibly be read differently. 3

3 Following H.R. 108, Congress terminated approximately 109

tribes in specific termination acts. Wilkinson & Briggs, 5 AM.

INDIAN L. REV. at 151. With respect to California tribes, Congress enacted legislation terminating federal supervision over

the Indians living on rancherias, but did not terminate other

tribes.

B. The stipulated settlement purporting to

“restore” the Wilton Indians contravenes

the Termination Act and is contrary to

this Court’s decisions.

Agency power is circumscribed by the authority

granted it by Congress. See, e.g., Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It

is axiomatic that an administrative agency’s

power . . . is limited to the authority delegated by

Congress.”); Stark v. Wickard, 321 U.S. 288, 309

(1944). That is just as true when an agency is compromising litigation.

1. A consent decree is a contract that can be enforced as a judicial order. “[I]t is the agreement of the

parties, rather than the force of the law upon which

the complaint was originally based, that creates the

obligations embodied in a consent decree.” Local No.

93, 478 U.S. at 522. Its validity thus depends on the

parties’ authority to give consent. See United States

v. Beebe, 180 U.S. 343, 351–55 (1901). For that reason, the parties to a consent decree cannot “agree to

take action that conflicts with or violates the statute

upon which the complaint was based.” Local No. 93,

478 U.S. at 526. But that is exactly what the Secretary did in the stipulated settlement.

The Attorney General’s role in compromising Wilton Miwok Rancheria does not alter the inherent limits on the Secretary’s authority. The Fourth Circuit

has explained that the Attorney General’s broad

power to settle cases “does not include license to

agree to settlement terms that would violate the civil

laws governing the agency.” Exec. Bus. Media, Inc. v.

U.S. Dep’t of Def., 3 F.3d 759, 762 (4th Cir. 1993).

That is because “the Attorney General in

representing a government agency is bound by the

same laws that control the agency.” Id.; accord

United States v. Carpenter, 526 F.3d 1237, 1242 (9th

Cir. 2008) (“[w]e think it alien to our concept of law

to allow the chief legal officer of the country to violate

its laws under the cover of settling litigation”) (alternation in original). The court below acknowledged

this limitation in other cases, but it failed to apply it

here. See Shoshone-Bannock Tribes v. Reno, 56 F.3d

1476, 1481 (D.C. Cir. 1995) (citing Exec. Bus. Media,

3 F.3d at 761).

2. In affirming the Secretary’s trust decision, the

court of appeals understood the California district

court to have “made clear that the Rancheria Act did

not apply to Wilton because the Tribe’s assets were

not distributed pursuant to the law.” App., infra, 22a.

The court found it “irrelevant that some Wilton members may have received assets because those assets

were not distributed pursuant to the statute.” Id.

Even if there had been some deficiency in the distribution of rancheria property, the Secretary still

lacked power to “restore” federal supervision via stipulated settlement. A consent decree must (1) “spring

from and serve to resolve a dispute within the court’s

subject-matter jurisdiction”; (2) “‘com[e] within the

general scope of the case made by the pleadings’”;

and (3) “further the objectives of the law upon which

the complaint was based.” Local No. 93, 478 U.S. at

525 (alterations in original) (citations omitted). Here,

it did not. The objective of the Termination Act was

the termination of federal supervision over rancheria

Indians in exchange for fee title to rancheria property. Restoration and new trust acquisitions achieve

the opposite.

Adherence to this Court’s rules for consent decrees

is critical to protect constitutional separation of powers. As Judge Easterbrook observed, those rules “are

designed to limit the authority of public officeholders,

to make them return to other branches of government or to the voters for permission to engage in certain acts.” Dunn v. Carey, 808 F.2d 555, 560 (7th Cir.

1986). There, the court allowed a state court challenge to the collection of taxes that local governments

agreed to assess under a federal consent decree. In so

holding, Judge Easterbrook stressed that courts

“must be alert to the possibility that the consent decree is a ploy in some other struggle,” such as when

parties “have been frustrated by their ability to win

political approval” for certain actions. Id.

The same concerns are present here. Although

Congress has now repudiated its termination policy,

and has restored many tribes it terminated, it has

not restored the Wilton Indians. In fact, it has not

restored most of the rancherias it terminated. 4 Instead, dozens of rancherias have been restored

through court-approved settlements. And in each

case, the parties have been aligned, agreeing on the

statements of facts and the appropriate remedy—restoration. 5 A friendly suit does not support federal

4 Congress has restored a handful of rancherias. See Auburn

Indian Restoration Act, Pub. L. No. 103-434, § 202, 108 Stat.

4533 (1994); Paskenta Rancheria Restoration Act, Pub. L. No.

103-454, § 303, 108 Stat. 4793 (1994); Graton Rancheria Restoration Act, Pub. L. No. 106–568, § 1404, 114 Stat. 2939 (2000).

In Duncan v. Andrus, the court restored the Robinson

Rancheria, based on an “Agreed Statement of Facts” and the

parties’ agreement that the rancheria must be “‘unterminated.’”

517 F. Supp. 1, 6 (N.D. Cal. 1977). The Hopland Rancheria was

restored a year later, under the same circumstances. See Smith

jurisdiction. See Chicago & Grand Trunk Ry. Co. v.

Wellman, 143 U.S. 339, 345 (1892).

3. Not only does the stipulated settlement fail to

further the objectives of the Termination Act, it is

binding only on those two parties. The court of appeals treated the stipulated settlement as precluding

petitioners’ claims, but a consent decree cannot “conclude the rights of strangers to those proceedings.”

Martin v. Wilks, 490 U.S. 755, 762 (1989); see App.,

infra, 40a. “[T]he fact that the parties have consented

to the relief contained in a decree does not render

their action immune from attack on” other grounds.

Local No. 93, 478 U.S. at 525–26.

The stipulated settlement does not preclude petitioners’ challenge to the Secretary’s trust acquisition

because “the central characteristic of a consent judgment is that the court has not actually resolved the

substance of the issues presented.” 18A C. WRIGHT,

A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4443 (3d ed. 2021 Update). The court below

has recognized in other cases that the issues addressed in stipulated judgments are not “actually litigated” for the purpose of issue preclusion. See Otherson v. Dep’t of Justice, INS, 711 F.2d 267, 274 (D.C.

Cir. 1983). Yet here, it failed to apply its own precedent, as well as that of this Court.

v. United States, 515 F. Supp. 56, 59 (N.D. Cal. 1978) (same);

Table Bluff Band of Indians v. Andrus, 532 F. Supp. 255, 258,

259–61, 265 (N.D. Cal. 1981) (same). Nineteen rancherias were

restored under Tillie Hardwick v. United States, No. 79-cv-1710

(N.D. Cal. Nov. 13, 2020), ECF No. 391.

C. The List Act does not confirm the stipulated settlement or grant the Secretary

power to acquire trust land for the Wilton

Indians.

The court of appeals supplemented its reliance on

the stipulated settlement by pointing to Section 103

of the List Act, which states that ‘‘Indian tribes presently may be recognized . . . by a decision of a United

States court.’’ App., infra, 23a; id. at 157a. In the

court’s view, Section 103 “confirm[s]” that tribes can

be recognized by court decisions, such that the stipulated settlement comports with the List Act. Id. at

23a. Neither assertion is correct.

1. Section 103 is the “Findings” section. Id. at

156a–157a. As such, it does not “confirm” anything—

let alone that federal courts can restore congressionally terminated tribes. 6 See Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal

Texts 217 (2012) (quoting Henry Campbell Black,

Handbook on the Construction and Interpretation of

the Laws 255 (2d ed. 1911) (noting that a statute’s

“statements of facts are neither infallible nor conclusive”)). It is true that the Department entered similar

settlements in Tillie Hardwick, Table Bluff Band of

Indians, Smith, and Duncan. But that does not resolve anything. “Unlawful acts, performed long

enough and with sufficient vigor, are never enough to

amend the law.” McGirt, 140 S. Ct. at 2482.

6 The

only substantive provision of the List Act merely requires the Secretary to publish a list of all federally recognized

tribes in the Federal Register every year. List Act, § 104 (App.,

infra, 158a).

2. By its own terms, Section 103 does not contemplate that congressionally terminated tribes can be

judicially restored. Section 103(3) states that tribes

“may be recognized” in one of three ways: by an act

of Congress, the Department’s acknowledgment regulations in 25 C.F.R. part 83, and court decisions.

App., infra, 157a. But tribal recognition is different

from tribal restoration. “Recognition” is a term of art

that refers to the “formal political act confirming the

tribe’s existence as a distinct political society, and institutionalizing the government-to-government relationship between the tribe and the federal government.” 1 F. Cohen, Handbook of Federal Indian Law

§ 3.02[3], at 133–134 (N. Newton ed. 2012).

None of the List Act’s three avenues to tribal

recognition is surprising. The Court accepted Congress’s power to recognize Indian tribes long ago. See

United States v. Sandoval, 231 U.S. 28, 46 (1913)

(noting that Congress can recognize but not create

tribes). Courts have historically resolved whether a

group of Indians constitutes a tribe under various

statutes using the test from Montoya v. United

States, 180 U.S. 261, 266 (1901). See, e.g., United

States v. Candelaria, 271 U.S. 432, 443–44 (1926);

Joint Tribal Council of the Passamaquoddy Tribe v.

Morton, 528 F.2d 370, 377 n.8 (1st Cir. 1975).

And in 1978, the Bureau of Indian Affairs promulgated Procedures for Establishing that an American

Indian Group Exists as an Indian Tribe, 43 Fed. Reg.

39,361 (Sept. 5, 1978), now codified in 25 C.F.R. part

83. Those regulations, then and now, make clear that

terminated tribes cannot seek acknowledgment. See

25 C.F.R. § 83.4(c); see also 43 Fed. Reg. at 39,361

(explaining that part 83 is unavailable to terminated

tribes because “the Department cannot administratively reverse legislation enacted by Congress”).

“Restoration,” by contrast, is the act of restoring

terminated tribes to federal recognition—as the List

Act itself makes clear. “Congress has expressly repudiated the policy of terminating recognized Indian

tribes, and has actively sought to restore recognition

to tribes that previously have been terminated.”

§ 103(5), 108 Stat. 4791 (App., infra, 157a). In fact,

Congress has restored many tribes on a case-by-case

basis. See p. 14, supra. The List Act does not suggest

that courts can restore terminated tribes; it confirms

that only Congress can.

II. Given the jurisdictional significance of trust

decisions, this case raises an important question of federal law that this Court should resolve.

Fifteen years ago, this Court granted Rhode Island’s petition for a writ of certiorari in Carcieri,

which explained that the case presented “jurisdictional issues of enormous import . . . because the future allocation of civil and criminal jurisdiction between states and tribes over a potentially unlimited

amount of land hangs in the balance.” Carcieri v. Salazar, 555 U.S. 379, petition for cert. filed, at 2 (U.S.

Oct. 18, 2007) (No. 07-526). The Carcieri petition was

right: acquiring land in trust upends the balance of

civil and criminal jurisdiction among states, tribes,

and the federal government. See, e.g., 25 U.S.C.

§ 5108 (exempting trust land from state and local

taxation); 25 C.F.R. § 1.4 (state and local laws controlling property inapplicable); De Coteau v. Dist.

Cnty. Court for Tenth Jud. Dist., 420 U.S. 425, 428

(1975).

The question in Carcieri was whether Congress

limited the Secretary’s trust authority to Indians

“who are members of any recognized Indian tribe”

that was “under Federal jurisdiction” in 1934. Carcieri, 555 U.S. at 382. The question here is whether

the Secretary can ignore clear statutory language

making the IRA inapplicable to certain Indians. But

the underlying concerns are the same. As in Carcieri,

the question “[w]hether the Secretary can reallocate

territorial sovereignty from a state to a tribe through

trust conversions, in the face of congressional [terminations] is a question of obvious importance to” California and other states. Petition for cert. at 25, Carcieri, 555 U.S. 379. This Court’s review is similarly

warranted.

A. The decision below expands the Secretary’s power to take land into trust.

Congress terminated federal supervision over

more than 100 tribes between 1953 and 1964. See p.

12 & note 4, supra. In repudiating its termination

policy, Congress could have passed blanket legislation that restored federal supervision over terminated Indians, but it has not.

Instead, Congress has restored certain tribes

through individualized restoration acts that address

the specific rights restored, including the Secretary’s

trust authority and the terms under which lands may

be acquired. See, e.g., Menominee Restoration Act,

Pub. L. No. 93-197, 87 Stat. 770 (1973); Siletz Indian

Tribe Restoration Act, Pub. L. No. 95-195, 91 Stat.

1415 (1977); Paiute Indian Tribe of Utah Restoration

Act, Pub. L. No. 96-227, 94 Stat. 317 (1980); Klamath

Indian Tribe Restoration Act, Pub. L. No. 99-398, 100

Stat. 849 (1986); Ysleta del Sur Pueblo and Alabama

and Coushatta Indian Tribes of Texas Restoration

Act, Pub. L. No. 100-89, 101 Stat. 666 (1987). Congress has taken the same approach to restoring

rancherias. See note 5, supra.

The decision below gives the Secretary carte

blanche to act where Congress has chosen not to.

That usurpation allows the Secretary, instead of

Congress, to choose which tribes will be restored

without any apparent rationale. For example, when

the Mishewal Wappo who lived at the Alexander Valley Rancheria sued for restoration in 2009, the Secretary successfully asserted a statute of limitations

defense that was just as applicable to Wilton’s

claims. See Mishewal Wappo Tribe of Alexander Valley v. Jewell, 84 F. Supp. 3d 930 (N.D. Cal. 2015),

aff’d 688 Fed. App’x 480 (9th Cir. 2017); see also Nisenan Tribe of Nevada City Rancheria v. Jewell, 650

Fed. App’x 497 (9th Cir. 2016) (same).

Apart from the potential for inconsistent application, the court of appeals’ decision ensures that the

Secretary can continue to acquire land in trust for

dozens of Congressionally terminated tribes. Many of

these acquisitions have contributed to the proliferation of gaming in California. See Cal. Gambling Control Comm. Tribal Casino Locations (as of Sept. 28,

2021)

http://www.cgcc.ca.gov/documents/Tribal/

2020/List_of-Casinos_alpha_by_tribe_name.pdf. Litigation challenging these decisions is commonplace.

See, e.g., Congressional Research Service, RL34325,

Indian Gaming Regulatory Act (IGRA): Gaming on

Newly Acquired Lands (Aug. 23, 2016), https://crsreports.congress.gov/product/pdf/RL/RL34325

(discussing trust land litigation). Clarifying the Secretary’s authority will help reduce these disputes.

B. By reading the List Act to confirm the Secretary’s power to recognize new tribes by

stipulated settlement, the court of appeals

vastly expanded the Secretary’s power.

The court of appeal’s reading of the List Act also

warrants review. By interpreting the List Act to “confirm” that courts can recognize or restore tribes

through stipulated settlements, the court of appeals

opened the door to the Secretary acquiring trust land

for other tribes that have not satisfied the acknowledgment regulations under 25 C.F.R. part 83 or the

Montoya criteria. This is not an abstract concern.

Along with restoring dozens of rancherias, the Secretary has recognized tribes outside of normal processes, such as through “reaffirmation.” 7 By treating

the court entry of a stipulated settlement as conclusive, the Secretary can circumvent the time-consuming process of tribal acknowledgment under 25

C.F.R. part 83, the appeal rights of interested parties, the Montoya criteria, and other limits on the

Secretary’s trust authority. The judiciary, too, must

only act within “its proper constitutional sphere.”

Raines v. Byrd, 521 U.S. 811, 820 (1997); see also

7 For example, the Secretary “reaffirmed” the Tejon Tribe in

2012 without following agency regulations or considering historical, genealogical, and ancestral claims. See U.S. Dep’t. of the

Interior, Investigative Report of the Tejon Indian Tribe (Jan. 9,

2013),

https://www.doioig.gov/sites/default/files/2021-migration/Tejon_ROI_FINAL_PUBLIC.pdf. The Department is now

considering its application to have 306 acres acquired in trust.

See Tejon Indian Tribe Environmental Impact Statement (Oct.

2020), https://www.tejoneis.com/final-eis/. Tribes have objected

that the Secretary unfairly invokes extralegal processes. See,

e.g., Agua Caliente Tribe of Cupeño Indians of Pala Reservation

v. Sweeney, 932 F.3d 1207 (9th Cir. 2019).

Chicago & Grand Trunk Ry., 143 U.S. at 345 (requiring “honest and actual antagonistic assertion of

rights” to protect integrity of judicial process). The

protection and restoration of tribal homelands is understandably a top priority for the Secretary. See Assistant Secretary–Indian Affairs, U.S. Dep’t of the

Interior, Letter to Tribal Leader (Sept. 10, 2021). 8

But policy priority and legal authority are two different things.

This Court made clear in Carcieri that the Secretary’s legal authority to acquire trust land on behalf

of Indians is limited. 555 U.S. at 395. Yet little has

changed as a result. 9 The Secretary has actually accelerated the acquisition of land in trust over the last

15 years. 10 At the same time, the Secretary has reduced the procedural safeguards associated with

trust acquisitions by requiring the immediate transfer of land into trust after a final decision and eliminating the application of the federal title standards

that govern all other federal land acquisitions. See

Land Acquisitions: Appeals of Land Acquisition Decisions, 78 Fed. Reg. 67,928 (Nov. 13, 2013); Title

Available at https://www.bia.gov/sites/bia.gov/files/assets/as-ia/raca/DTLL%20Protection%20and%20Restoration%20of%20Tribal%20Homelands_wlinks.pdf.

9 On only one occasion has the Secretary concluded that she

lacks the authority to acquire land in trust since Carcieri, and

that decision has been remanded. See Mashpee Wampanoag

Tribe v. Bernhardt, 466 F. Supp. 3d 199 (D.D.C. 2020).

10 U.S. Dep’t of the Interior, Obama Administration Exceeds

Ambitious Goal to Restore 500,000 Acres of Tribal Homelands

(Oct. 12, 2016), https://www.doi.gov/pressreleases/obama-administration-exceeds-ambitious-goal-restore-500000-acrestribal-homelands.

Evidence for Trust Land Acquisitions, 81 Fed. Reg.

10,477 (Mar. 1, 2016).

The ramifications of the Secretary’s trust acquisition policies were underscored by the Court’s decision

in McGirt. While ostensibly limited to state criminal

jurisdiction within eastern Oklahoma, McGirt has

generated significant disputes over taxation authority, application of zoning and environmental laws,

and family law. See Oklahoma v. Bosse, 141 S.Ct.

2891 (2021), petition for cert. filed, (U.S. Aug. 6, 2021)

(No. 21-186). These disputes are commonplace with

trust land, particularly when located in more urban

areas. See, e.g., Agua Caliente Band of Cahuilla Indians v. Riverside Cnty., 749 Fed. App’x 650 (9th Cir.

2019); Confederated Tribes of Chehalis Reservation v.

Thurston Cnty. Bd. of Equalization, 724 F.3d 1153

(9th Cir. 2013); New York v. Shinnecock Indian Nation, 686 F.3d 133 (2d Cir. 2012). The more land the

Secretary acquires in trust, the greater the potential

for similar disputes in other places.

This Court should grant review to confine the Secretary to the exercise of the limited authority granted

by Congress in the IRA and as limited by Section

10(b) of the Termination Act.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JENNIFER A. MACLEAN

Counsel of Record

BENJAMIN S. SHARP

P ERKINS C OIE LLP

700 Thirteenth St., NW

Suite 800

Washington, DC 20005

(202) 434-1648

jmaclean@perkinscoie.com

bsharp@perkinscoie.com

Counsel for Petitioners

Stand Up for California!

November 8, 2021

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Order, Stand Up For

California!, et al., v. United States

Department of the Interior, et al., No.

19-5285 (D.C. Cir. June 11, 2021) ........

APPENDIX B: Opinion, Stand Up For

California!, et al., v. United States

Department of the Interior, et al., No.

19-5285, 994 F.3d 616 (D.C. Cir. Apr.

16, 2021) ................................................

APPENDIX C: Memorandum Opinion, Stand

Up For California!, et al., v. United

States Department of the Interior, et

al., and Wilton Rancheria, California,

No. 17-cv-00058, 410 F. Supp. 3d 39

(D.D.C. Oct. 7, 2019) .............................

31a

APPENDIX D: Record of Decision: Trust

Acquisition of 35.92+/- acres in the

City of Elk Grove, California, for the

Wilton Rancheria (Jan. 19, 2017)

(excerpt) ................................................

75a

APPENDIX E: Stipulation and Order for

Entry of Judgment; Wilton Miwok

Rancheria v. Salazar, No. C-07-02681

(N.D. Cal. June 8, 2009) ...................... 106a

APPENDIX F: Wilton Rancheria Request for

Final Termination (July 13, 1964) ...... 142a

APPENDIX G: Wilton Rancheria Completion Statement (July 19, 1961)

144a

APPENDIX

California

Rancheria

Termination Act of 1958, Pub. L. No.

85-671, 72 Stat. 619 .............................. 147a

APPENDIX I: Federally Recognized Indian

Tribe List Act of 1994 (List Act), Pub.

L. No. 103-454, 108 Stat. 4791 ............ 155a

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

------------------------------

No. 19-5285

September Term, 2020

1:17-cv-00058-TNM

Filed On: June 11, 2021

Stand Up For California!, et al.,

Appellants

United States Department of the Interior, et

al.,

Appellees

BEFORE: Srinivasan, Chief Judge; and

Henderson, Rogers, Tatel, Millett,

Pillard, Wilkins, Katsas, Rao, and

Walker, Circuit Judges

ORDER

Upon consideration of appellants’ petition for

rehearing en banc, and the absence of a request by

any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Kathryn D. Lovett

Deputy Clerk

APPENDIX B

OPINION

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________

Argued November 9, 2020

Decided April 16, 2021

No. 19-5285

STAND UP FOR CALIFORNIA!, ET AL.,

APPELLANTS

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

__________

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00058)

__________

Jennifer A. MacLean argued the cause for

appellants. With her on the briefs was Benjamin S.

Sharp.

Brian C. Toth, Attorney, U.S. Department of

Justice, argued the cause for federal appellees. With

him on the brief were Jeffrey Bossert Clark, Assistant

Attorney General, Eric Grant, Deputy Assistant

Attorney General, and Mary Gabrielle Sprague,

Attorney.

Jessica L. Ellsworth argued the cause for appellee

Wilton Rancheria, California. With her on the brief

was Benjamin A. Field. Neal K. Katyal entered an

appearance.

Before: GARLAND *, PILLARD and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge

WILKINS.

WILKINS, Circuit Judge: This appeal comes after a

seven-year effort by the Department of the Interior

(“Department”) to acquire land in trust on behalf of the

Wilton Rancheria (“Wilton” or “Tribe”) to build a

casino. After the Department finalized the acquisition

of a parcel of land in Elk Grove, California, Stand Up

for California! (“Stand Up”), Patty Johnson, Joe

Teixeira, and Lynn Wheat (collectively “Appellants”)

sued the Department. They brought a litany of claims,

including

claims

that

the

Department

(1) impermissibly delegated the authority to make a

final agency action to acquire the land to an official

who could not wield this authority, (2) was barred from

* Judge Garland was a member of the panel at the time this case

was submitted but did not participate in the final disposition of

the case.

acquiring land in trust on behalf of Wilton’s members,

and (3) failed to adhere to its National Environmental

Protection Act obligations when it selected the Elk

Grove location. Appellants and the Department crossmoved for summary judgment, and the District Court

granted the Department’s motions on all counts. For

the reasons set forth below, we affirm the District

Court.

The Wilton Rancheria is an Indian tribe based in

the Sacramento area. 1 Wilton’s members are

descendants of Miwok and Niensen speakers. As with

its general policy regarding tribal sovereignty, the

federal government’s approach to Wilton has gone

through “drastic fits and starts,” vacillating “between

coercing assimilation and encouraging tribal selfgovernment.” Philip P. Frickey, Congressional Intent,

Practical Reasoning, and the Dynamic Nature of

Federal Indian Law, 78 CALIF. L. REV. 1137, 1138

(1990). Wilton was first federally recognized in 1927,

when Congress initiated a program that provided land

to Indians who were not on reservations. After

Congress passed the Indian Reorganization Act in

1934, Wilton adopted a constitution.

In 1958, however, Congress disestablished Wilton

and forty other reservations through the California

A rancheria is a small Indian settlement in California. See

Stand Up for California! v. U.S. Dep’t of Interior, 879 F.3d 1177,

1179 (D.C. Cir. 2018); William Wood, The Trajectory of Indian

Country in California: Rancherías, Villages, Pueblos, Missions,

Ranchos, Reservations, Colonies, and Rancherias, 44 TULSA L.

REV. 317, 319 (2008).

Rancheria Act (“Rancheria Act”). Pub. L. No. 85–671,

72 Stat. 619 (1958). The Rancheria Act directed the

Secretary of the Interior (“Secretary”) to dissolve the

trusts in which the Secretary held land for forty-one

rancherias and tribes, including Wilton, and to

distribute the assets. The Secretary was directed to

consult with the affected tribes and prepare a plan to

distribute the assets or to sell the assets and distribute

the profits to the affected tribes’ members. Pursuant

to this mandate, the Secretary terminated the

government-to-government relationship with Wilton

and began consultations with the Tribe’s members to

transfer federal land trust ownership to individual fee

ownership. In 1959, the Department approved a

distribution plan that would terminate the federal

trusteeship of the Tribe, distribute the assets to the

Tribe’s members, and revoke the Tribe’s constitution

and bylaws. Once the Tribe’s assets had been

distributed, the distribution agreement stipulated

that the Tribe’s members were no longer entitled to

the federal government’s services because of their

status as Indians.

In 1964, the Department

announced in the Federal Register that the Wilton

Tribe’s members were no longer entitled to services

reserved for Indians.

Termination of Federal

Supervision, 29 Fed. Reg. 13,146 (Sept. 15, 1964).

In 1979, members of several California rancherias,

including Wilton members, brought a class action

against the Department for unlawfully terminating

the federal government’s trust relationship with their

tribes. Four years later, the government settled and

“agree[d] to ‘restore[] and confirm[]’ Indian status for

some who had lost it” pursuant to the Rancheria Act,

including seventeen tribes that had lost their tribal

status under the Act. Stand Up for California! v. U.S.

Dep’t of Interior, 879 F.3d 1177, 1184 (D.C. Cir. 2017)

(quoting Stipulation for Entry of Judgment,

Hardwick, No. C-79-1710-SW, ¶¶ 2–4 (Aug. 3, 1983)).

But Wilton was excluded from the settlement

agreement because the district court mistakenly

concluded that “[n]o class member from [Wilton]

currently owns property within the original rancheria

boundaries.” Wilton Miwok Rancheria v. Salazar,

2010 WL 693420, at *2 (N.D. Cal. Feb. 23, 2010)

(quoting Certificate of Counsel re Hearing on Approval

of Settlement of Class Actions, Hardwick, No. C-791710-SW (Nov. 16, 1983)).

Almost forty years later, members of the Tribe sued

the Department, seeking federal recognition of the

Wilton Rancheria and the acquisition of certain land

into trust by the government on the Tribe’s behalf. Id.

at *3. Two years later, the Tribe and the government

entered into a settlement agreement. The Department

acknowledged that “the United States failed to comply

with the Rancheria Act in terminating the Wilton

Rancheria and distributing its assets.” Id. The

Department thus recognized that the Tribe was not

lawfully terminated. The Department also agreed to

restore federal recognition of the Tribe and to “accept

in trust certain lands formerly belonging to” Wilton.

Id. at *3. In June 2009, the district court in California

entered the settlement agreement as a stipulated

judgment. After the case settled, the Department

published notice of the restoration of Wilton’s status

as a federally recognized tribe. Since then, the Wilton

Rancheria has been listed on the Department’s annual

list of federally recognized tribes.

In 2013, Wilton petitioned the Department to

acquire land in trust on the Tribe’s behalf so that it

could build a casino. The Tribe proposed a 282-acre

plot near Galt, California. Pursuant to the National

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

4321–4347, the Department began the process to

assess the environmental effect a casino would have.

After soliciting public comment, the Department

published a scoping report for its environmental

impact statement (“EIS”). The scoping report

identified seven alternatives for the land acquisition,

including a 30-acre parcel in Elk Grove and the Galt

site, which the report described as Wilton’s “proposed

action,” see 40 C.F.R. § 1502.14; 43 C.F.R. § 46.30, but

it did not identify a preferred alternative. See 43

C.F.R. § 46.420(d) (defining the “preferred alternative”

as the alternative that the agency “believes would best

accomplish the purpose and need of the proposed

action while fulfilling its statutory mission and

responsibilities, giving consideration to economic,

environmental, technical, and other factors”). Two

years later, the Department published the draft EIS,

where it considered the alternatives in detail. It then

held a public hearing on the draft EIS. At the hearing,

multiple parties—including one of the plaintiffs in this

litigation—spoke in favor of the Elk Grove location.

Following the hearing, Wilton changed its preference

and submitted a request that the Department acquire

the Elk Grove location rather than the Galt location.

In November 2016, the Department requested

comment from interested parties about a potential

casino in the Elk Grove location. The list of notified

parties included the State of California, the City of Elk

Grove, and Stand Up. Stand Up responded that

transferring title to the Elk Grove location would moot

multiple pending state-court challenges seeking to

prevent the acquisition and urged the Department to

delay title transfer. The Department denied Stand

Up’s request. The Department then published its final

EIS, which identified the Elk Grove location as the

preferred alternative.

On January 19, 2017, the Department issued a

Record of Decision (“ROD”) that constituted the final

agency action to acquire the Elk Grove location in

trust on Wilton’s behalf. Lawrence Roberts—the

Principal Deputy Assistant Secretary—Indian

Affairs—signed the ROD pursuant to delegated

authority. Roberts had served as Acting Assistant

Secretary—Indian Affairs (“AS–IA”), but after his

acting status lapsed pursuant to the Federal

Vacancies Reform Act (“FVRA”), Roberts continued to

exercise the non-exclusive functions and duties of the

AS–IA. The same day Roberts issued the ROD, thenDeputy Secretary Michael Connor had issued a

memorandum (“Connor Memorandum”) that sought to

clarify that Roberts was exercising non-exclusive

functions and duties of the AS–IA. On February 10,

the Department acquired title to the Elk Grove

location. Michael Black, who had assumed the role of

Acting AS–IA in the new presidential administration,

signed off on this acquisition after denying Stand Up’s

administrative appeal for a stay pending judicial

review.

Appellants brought this lawsuit prior to the

issuance of the Department’s ROD and sought a

temporary restraining order, which the District Court

denied. Appellants’ lawsuit alleged, inter alia, that (1)

10a

the FVRA and Department regulations precluded the

Principal Deputy from exercising the authority to sign

off on the ROD acquiring the Elk Grove land in trust;

(2) Principal Deputy Roberts was acting without

authority when he acquired the title in trust for the

Tribe; (3) the Department could not acquire land in

trust on behalf of Wilton’s members pursuant to the

Rancheria Act; and (4) the Department violated NEPA

and the APA by failing to prepare a supplemental or

new EIS after it selected the Elk Grove location as its

preferred alternative. Wilton intervened on behalf of

the Department. After the parties cross-moved for

summary judgment, the District Court granted the

Department’s summary judgment motions. This

appeal followed.

We review the District Court’s grant of summary

judgment de novo. W. Surety Co. v. U.S. Eng’g Constr.,

LLC, 955 F.3d 100, 104 (D.C. Cir. 2020). We

“evaluat[e] the administrative record directly and

invalidat[e] the Department’s actions only if, based on

that record, they are arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the

law.” Stand Up!, 879 F.3d at 1181 (internal quotation

omitted).

II.

We begin with Appellants’ challenge to the

Department’s redelegation of final decision-making

authority to the Principal Deputy. First, Appellants

claim that the regulation in question prohibits

redelegation beyond the AS–IA. Second, Appellants

argue that even if the regulation permitted

11a

redelegation, the Department failed to properly

redelegate this power to Principal Deputy Roberts.

We reject both of Appellants’ challenges. First, the

text, structure, and purpose of the regulation confirm

that the Department has the power to redelegate final

decision-making authority. Second, the Department

properly redelegated the final decision-making

authority to Principal Deputy Roberts. We therefore

affirm the District Court’s grant of summary judgment

to the government on these claims.

The Bureau of Indian Affairs (“BIA”) has

promulgated regulations governing who can make

land acquisitions on behalf of Indian tribes. The

regulations define “Secretary” as “the Secretary of the

Interior or authorized representative.” 25 C.F.R.

§ 151.2. The Secretary must review each request for

the acquisition of land. 25 C.F.R. § 151.12(a). Section

151.12(c) states that “[a] decision made by the

Secretary, or the [AS–IA] pursuant to delegated

authority, is a final agency action.” 25 C.F.R.

§ 151.12(c). In contrast, Section 151.12(d) provides

that “[a] decision made by a [BIA] official pursuant to

delegated authority is not a final agency action of the

Department . . . until administrative remedies are

exhausted.” Id. § 151.12(d).

To determine whether redelegation of final

decision-making authority is permissible, we must

first assess whether the power is an exclusive function

or duty of the Secretary or the AS–IA. The FVRA

forecloses the delegation of exclusive duties and

12a

authorities to a successor official after expiration of

the statutorily authorized 210-day period of actingcapacity service. The FVRA also establishes that a

function or duty is exclusive when it is either

“established by statute, and . . . required by statute to

be performed by the applicable officer (and only that

officer)” or when it “is established by regulation and . .

. is required by such regulation to be performed by the

applicable officer (and only that officer).” 5 U.S.C.

§ 3348(a)(2)(A)–(B). 2 If Congress wants to make clear

that a function or duty is exclusive, it may do so

through clear statutory mandates. See, e.g., 25 U.S.C.

§ 3407(a) (“The Secretary shall have exclusive

authority to approve or disapprove a plan submitted

by an Indian tribe . . . .” (emphasis added)).

Alternatively, as the Supreme Court recognized in

United States v. Giordano, a statute may foreclose

redelegation when its text, “fairly read” in light of the

statutory purpose, evinces a congressional desire to

render a function or duty exclusive and nonredelegable. 416 U.S. 505, 514 (1974). Should

Congress remain silent on the issue, however, the

FVRA provides the Executive Branch with leeway to

set out which functions or duties are exclusive and

which are not. See 5 U.S.C. § 3348(a)(2)(A)–(B); see

also FEDERAL VACANCIES REFORM ACT OF 1998, S. Rep.

Although Appellants have not raised their FVRA claims on

appeal, the statute still provides guideposts to which we should

adhere in analyzing the challenge to delegated authority. Cf.

United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs.,

Ltd., 484 U.S. 365, 371 (1988) (“[C]onstruction . . . is a holistic

endeavor. A provision that may seem ambiguous in isolation is

often clarified by the remainder of the statutory scheme . . .

because only one of the permissible meanings produces a

substantive effect that is compatible with the rest of the law.”).

13a

No. 105–250, at 31 (“We must be clear that the nondelegable duties we intend to have performed only by

the agency head in the event of a vacancy . . . are only

those expressly vested by law or regulation exclusively

in the vacant position. In this regard, we acknowledge

and appreciate the Majority’s statement that ‘all the

normal functions of government thus could still be

performed.’”). Appellants do not argue that any statute

vests exclusive authority with the Secretary or the

AS–IA, and we are unaware of any such statute. We

must therefore determine whether the Department

itself has cabined this authority.

Relying on the text of Section 151.12, Appellants

argue that the Department has restricted final

decision-making authority to the Secretary or to the

AS–IA. Appellants contend that because Section

151.12(c) provides that final decisions can be made by

the AS–IA “pursuant to delegated authority,” while

Section 151.12(d) sets out the procedures for non-final

decisions made by BIA officials, the Department has

made final decision-making authority an exclusive

function. We disagree. While Section 151.12 certainly

contemplates that the actions of the Secretary and the

AS–IA will constitute final agency action, when fairly

read, it does not foreclose redelegation of these duties.

To begin, we hold that, contrary to Appellants’

assertions, the presumption in favor of redelegability

applies to regulations. We have previously recognized

that “[w]hen a statute delegates authority to a federal

officer or agency, subdelegation to a subordinate

federal officer . . . is presumptively permissible absent

affirmative evidence of a contrary congressional

intent.” U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565

14a

(D.C. Cir. 2004); see also Kobach v. U.S. Election

Assistance Comm’n, 772 F.3d 1183, 1190 (10th Cir.

2014) (“[C]ircuits that have spoken on this issue are

unanimous

permitting

subdelegations

subordinates, even where the enabling statute is

silent, so long as the enabling statute and its

legislative history do not indicate a prohibition on

subdelegation.”). And while we have never held that

this presumption applies to regulations, we conclude

that it does so today. Indeed, the presumption in favor

of redelegability may be more appropriate for

regulations than it is for statutes because an agency

has many tools to quickly reverse an unintended

redelegation. Should any lower-ranking official exceed

his or her powers and attempt to exercise an exclusive

function or duty pursuant to a redelegation, the

Secretary or the Deputy Secretary could simply

invalidate any action taken pursuant to the claimed

authority. In contrast, as a practical matter it is

harder for Congress to claw back any function or duty

that a lower-ranking official exercises contrary to

Congress’s intent to reserve it for the Secretary. And

while an agency could amend its regulations to change

which functions or duties are exclusive, Congress

ensured that an agency cannot suddenly render an

exclusive function or duty non-exclusive by requiring

the regulation to be in effect during the 180 days

preceding any vacancy. 5 U.S.C. § 3348(a)(2)(B)(ii). An

agency thus cannot amend its regulations to render an

exclusive function non-exclusive as an end-run around

the restrictions Congress set for acting officers in the

FVRA. Given these considerations, we hold that the

presumption in favor of redelegability applies to

regulations.

15a

With this presumption in mind, we turn to the text.

As with statutes, regulations must be construed

holistically. See Am. Paper Inst., Inc. v. EPA, 996 F.2d

346, 356 n.10 (D.C. Cir. 1993); see also Carlson v.

Postal Regulatory Comm’n, 938 F.3d 337, 349 (D.C.

Cir. 2019) (“[I]n expounding a statute, we must not be

guided by a single sentence . . . but look to the

provisions of the whole law.” (quoting Del. Dep’t of Nat.

Res. & Envtl. Control v. EPA, 895 F.3d 90, 97 (D.C.

Cir. 2018))). Here, the regulatory text provides two

methods by which the Department can acquire land in

trust. Section 151.12(d) contemplates that the decision

to take land into trust may be delegated to a BIA

official, but the BIA official’s decision would be subject

to administrative review. 25 C.F.R. § 151.12(d).

Alternatively, the Department may acquire the land

in trust through “[a] decision made by the Secretary,

or the [AS–IA] pursuant to delegated authority,”

which “is a final agency action” and not subject to the

administrative review process. Id. § 151.12(c). But the

regulation also defines “Secretary” to include any

“authorized representative.” Id. § 151.2(a). Because of

this inclusive definition, we conclude that the

regulation’s text, when fairly read, contemplates

redelegation of the Section 151.12(c) authority by the

Secretary.

The Department’s other regulations confirm our

reading of Section 151.12. As other regulations make

clear, the Department knows how to use language that

renders a function or duty exclusive to a particular

official. See, e.g., 25 C.F.R. § 33.3 (“The administrative

and programmatic authorities of the Assistant

Secretary–Indian Affairs pertaining to Indian

education functions shall not be delegated to other

16a

than the Director, Office of Indian Education

Programs.”); id. § 262.5(a) (“Area Directors may

delegate this authority to Agency Superintendents,

but only . . . to those who have adequate professional

support available.”); 43 C.F.R. § 20.202(b)(1) (“Each

Ethics Counselor shall . . . [o]rder disciplinary or

remedial action . . . . This authority may not be

redelegated.”). But in promulgating Section 151.12,

the Department refrained from using any similar

language. Appellants argue that the Department shut

the door on redelegation in providing that the AS–IA

will act “pursuant to delegated authority.” 25 C.F.R.

§ 151.12(c). But this language pales in comparison to

the language the Department typically uses to bar

redelegation. The Department’s decision not to use

such prohibitory language thus supports our

conclusion that a fair reading of the regulation permits

redelegation beyond the AS–IA.

Appellants invoke the expressio unius canon to

argue that the regulation’s explicit mention of the AS–

IA forecloses redelegation beyond the AS–IA. But as

we have made clear, the expressio unius canon “is often

misused” because drafters include duplicative

language to ensure “that the mentioned item is

covered—without

meaning

exclude

the

unmentioned ones.” Shook v. D.C. Fin. Resp. & Mgmt.

Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998).

Moreover, as the Second Circuit has recognized, the

expressio unius canon carries even less weight in the

redelegation context, where the statute or regulation

“may mention a specific official only to make it clear

that this official has a particular power rather than to

exclude delegation to other officials.” United States v.

Mango, 199 F.3d 85, 90 (2d Cir. 1999). Section

17a

151.12(c) is emblematic of the shortcomings of the

expressio unius canon in the redelegation context.

Although the regulation explicitly mentions the AS–

IA, it incorporates the definition of “Secretary” from

Section 151.2(a) which includes any “authorized

representative.” Nothing else in the regulation’s text

suggests that the Department intended to limit the

redelegation to the AS–IA, and invoking the expressio

unius canon would require us to ignore the

regulation’s definition of “Secretary.” Instead, we

believe it a fairer reading of the regulation that the

Department was merely making clear that the AS–IA

had been delegated the authority of final

decisionmaking, not that the AS–IA alone could

exercise this authority. We therefore decline to apply

the expressio unius canon to Section 151.12.

Section 151.12’s purpose also supports our reading

of the regulation. As with statutes, we may look to the

purpose and drafting history of the regulation to

confirm whether our interpretation of the text

comports with the Department’s intent in

promulgating Section 151.12. See U.S. Telecom Ass’n,

359 F.3d at 565; Giordano, 416 U.S. at 514. Here, the

Department’s goal in amending Section 151.12 affirms

our understanding that the Department did not intend

prohibit

redelegation

this

function.

Section 151.12 was amended in 2013 to “[p]rovide

clarification and transparency to the process for

issuing decisions by the Department, whether the

decision is made by the Secretary, [AS–IA], or a [BIA]

official.” Land Acquisitions: Appeals of Land

Acquisition Decisions, 78 Fed. Reg. 67,928, 67,929

(Nov. 13, 2013). The Department was not focused on

who could wield the authority to make final decisions.

18a

Rather, the Department sought to clarify whether an

acquisition of land was final and what means of review

were available to aggrieved parties: The decisions of

the Secretary and AS–IA are final and appealable, it

explained, and the decisions of BIA officials are not. In

adopting that rule of finality, the Department said

nothing of the authority of other Department officials,

such as the Deputy AS–IA, to act. And in any event,

finality is a benefit as well as a limitation. Instead of

being required to proceed through the administrative

appeals process, a decision made under Section

151.12(c) permits aggrieved parties to immediately

seek judicial review before an Article III court. 3 The

Department’s purpose in promulgating Section 151.12

thus confirms that the Department did not seek to

foreclose redelegation of final decisions to acquire land

into trust.

Appellants’ reliance on Giordano is misplaced.

There, the Supreme Court interpreted a statute where

Congress provided that “[t]he Attorney General, or

any Assistant Attorney General specially designated

by the Attorney General” could authorize a wiretap,

Giordano, 416 U.S. at 513 (quoting 18 U.S.C. §

2516(1)), but the challenged decision was made by the

Attorney General’s Executive Assistant. Id. Although

the Court concluded that the statute’s text, when

“fairly read, was intended to limit the power to

authorize wiretap applications,” id. at 514, it reached

3 It is also noteworthy that the Department has maintained its

position that this function is redelegable over three presidential

administrations. Appellants stress the breakneck speed that the

Obama administration undertook to finalize the acquisition, but

over four years later, two administrations never wavered from

the position that this authority is redelegable.

19a

this conclusion after contrasting the narrow

delegation of Section 2516(1) with 28 U.S.C. § 510,

which granted the Attorney General broad authority

to delegate his power. Thus, because the statute in

question used narrower language than the broader

delegation, the Court determined that the Attorney

General was restricted in his ability to delegate his

wiretapping authority. In the present case, however,

other regulations show that when the Department

intends to render a function or duty exclusive, it says

so clearly. And unlike the statute at issue in Giordano,

see id. at 514–21, the history of Section 151.12 does not

evince an intent by the drafters to restrict who could

wield final decision-making authority, 78 Fed. Reg. at

67,929. We therefore hold that Section 151.12 permits

redelegation beyond the AS–IA.

We next turn to Appellants’ argument that the

Department failed to properly redelegate the final

decision-making authority to Principal Deputy

Roberts. Appellants contend that because the

Department did not adhere to the redelegation

procedures set forth in the Departmental Manual, the

redelegation—either through automatic redelegation

through

the

Connor

Memorandum—was

impermissible. We reject Appellants’ challenge.

Even if violation of the Departmental Manual

supported a third-party claim—which we doubt, see

Schweiker v. Hansen, 450 U.S. 785, 789–90 (1981);

Chiron Corp. & PerSeptive Biosystems, Inc. v. NTSB,

198 F.3d 935, 944 (D.C. Cir. 1999)—Appellants’

challenge still fails on its merits. Principal Deputy

20a

Roberts began serving as the Acting AS–IA in January

2016. After his term as AS–IA lapsed pursuant to the

FVRA, Roberts reverted to his position as Principal

Deputy. But under the Departmental Manual, the

Principal Deputy “may exercise the [non-exclusive]

authority delegated” to the AS–IA “[i]n the [AS–IA’s]

absence.” 209 DM 8.4A. Appellants attempt to

distinguish an “absence” from a “vacancy,” but they

forfeited this argument by failing to raise it in the

District Court. See Weinstein v. Islamic Republic of

Iran, 831 F.3d 470, 483 (D.C. Cir. 2016) (“To preserve

an argument on appeal a party must raise it both in

district court and before us.”). Regardless, for purposes

of delegation under this regulation, a vacancy may be

treated as a type of absence. Appellants’ reliance on

other provisions of the Departmental Manual where

the Department uses the term “vacancy” is misplaced,

as those provisions deal specifically with succession,

not redelegation. See 302 DM 1.1. As discussed above,

final decision-making authority pursuant to Section

151.12 is a non-exclusive function, so this is not an

issue of a succession, but rather an issue of

redelegation. Thus, “absence” can certainly include a

“vacancy” in office, particularly when the functions at

issue are non-exclusive. Therefore, the Department

did not violate any of the provisions by automatically

redelegating the AS–IA’s non-exclusive functions and

duties to the Principal Deputy.

In any event, any failure to automatically

redelegate this non-exclusive function was corrected

when the Department issued the

Connor

Memorandum.

The

Departmental

Manual

acknowledges that it can be superseded by any

“appropriate authority,” including but expressly not

21a

limited to “a Secretary’s order.” J.A. 248 (listing

permissible appropriate authority, “e.g., a change in

statute, regulation, or Executive order; a Secretary’s

Order or a court decision; etc.” (emphasis added)). As

the Connor Memorandum explained, the Department

intended for Principal Deputy Roberts to exercise the

nonexclusive functions and duties of the AS–IA, but

the succession order incorrectly identified Roberts’s

position. So, although “[t]he Department typically

uses succession orders to delegate authority,” the

Department issued the Connor Memorandum to

“confirm [Roberts’s] authority to exercise the functions

and duties of the AS–IA that are not required by law

or regulation to be performed only by the AS–IA.” J.A.

276. And given that the Departmental Manual

permits deviation from the procedures by any

appropriate authority, the Connor Memorandum,

issued by the Deputy Secretary of the Interior,

permissibly redelegated final decision-making

authority to Roberts. 4 Thus, to the extent that the

delegation was not automatically made, it was

correctly done through the Connor Memorandum.

III.

Appellants also appeal the District Court’s grant of

summary judgment to the Department on Appellants’

Rancheria Act claim. Appellants claim that they do not

challenge the court-approved settlement agreement

that reestablished federal recognition of Wilton.

Appellants also secondarily argue that Deputy Secretary

Connor was not properly delegated the authority to redelegate

final decisionmaking authority to Principal Deputy Roberts. But

Appellants forfeited this argument by failing to raise it before the

District Court. Weinstein, 831 F.3d at 483.

22a

Instead, Appellants argue that because the

Department distributed assets to Wilton members

pursuant to the Rancheria Act, Wilton members are

no longer entitled to the federal government’s services

on account of their status as Indians. We reject this

argument as specious.

As Appellants are well aware, we have previously

recognized that a court-approved settlement can

invalidate the effect of the Rancheria Act. In another

lawsuit brought by Stand Up, we concluded that a

court-approved settlement agreement is sufficient to

restore recognition of a tribe and to restore Indian

status for members of that tribe notwithstanding the

Rancheria Act. Stand Up!, 879 F.3d at 1184. The

settlement agreement, which a federal court approved,

stated that Wilton “was not lawfully terminated, and

the Rancheria’s assets were not distributed, in

accordance with the” Rancheria Act. J.A. 901. The

court made clear that the Rancheria Act did not apply

to Wilton because the Tribe’s assets were not

distributed pursuant to the law. Pursuant to this

agreement, the Department published notice in the

Federal Register stating that Wilton and its members

were “relieved from the application of section 10(b) of”

the Rancheria Act. Restoration of Wilton Rancheria, 74

Fed. Reg. 33,468, 33,468 (July 13, 2009). It is therefore

irrelevant that some Wilton members may have

received assets because those assets were not

distributed pursuant to the statute. The Rancheria

Act has no force on the Department with regards to

the Wilton Rancheria.

As a fallback, Appellants contend that the District

Court erred by relying on the Federally Recognized

23a

Indian Tribe List Act of 1994 (“List Act”). Pub. L.

No. 103–454, 108 Stat. 4791, 4792 (Nov. 2, 1994).

Appellants argue that the List Act did not authorize

the restoration of congressionally-terminated tribes

through court-approved settlements in its substantive

provisions, so the Rancheria Act still controls.

Appellants are mistaken. While it is true that the

District Court relied on the “Findings” section of the

List Act, the “Findings” section acknowledges that

“Indian tribes presently may be recognized . . . by a

decision of a United States court.” Id. § 103(3). This

finding comports with decades of court-approved

settlements reestablishing federal recognition of

Indian tribes. See, e.g., Hardwick v. United States, No.

C-79-1710-SW (N.D. Cal. 1979); Table Bluff Band of

Indians v. Andrus, 532 F. Supp. 255, 258, 259–61, 265

(N.D. Cal. 1981); Smith v. United States, 515 F. Supp.

56, 61–62 (N.D. Cal. 1978); Duncan v. Andrus, 517 F.

Supp. 1, 5–6 (N.D. Cal. 1977); see also Stand Up!, 879

F.3d at 1185 (discussing validity of the Hardwick

settlement). It is therefore irrelevant that the List Act

failed to expressly authorize the recognition of tribes

through court decisions because it confirmed that

courts could do so. And that is precisely what the court

did when it approved the settlement agreement.

Therefore, the court-approved settlement agreement

recognizing Wilton and invalidating the Rancheria

Act’s application to Wilton comports with the List Act.

Because a court-approved settlement agreement

reversed the termination of the Wilton Rancheria

pursuant to the Rancheria Act, we affirm the District

Court’s grant of summary judgment to the

Department.

24a

IV.

Finally, Appellants challenge the District Court’s

grant of summary judgment to the Department on

their NEPA claims. Appellants argue that, at a

minimum, the Department should have prepared

either a supplemental EIS or a new EIS after it

selected the Elk Grove location as the site for the

casino. This contention also has no merit.

Congress enacted NEPA in 1970. 42 U.S.C. §§

4321–4347. When an agency takes a “major Federal

action[],” NEPA requires the responsible official to

prepare a “detailed statement . . . on (i) the

environmental impact of the proposed action, (ii) any

adverse environmental effects which cannot be

avoided . . . , (iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses . . .

and . . . longterm productivity, and (v) any irreversible

and irretrievable commitments of resources.”

42 U.S.C. § 4332(C). This “detailed statement” has

become known as an EIS.

An EIS goes through two stages: the draft EIS and

the final EIS. 40 C.F.R. § 1502.9. Id. The principal

agency—here, the Department of the Interior—

prepares the draft EIS in conjunction with cooperating

agencies and obtain comments regarding the proposed

federal action. 40 C.F.R. § 1502.9(a). In the draft EIS,

the principal agency must “[i]dentify the agency’s

preferred alternative . . . , if one or more exists.”

40 C.F.R. § 1502.14(e). The final EIS must address all

comments and discuss responsive opposing views it

did not discuss adequately in the draft statement.

40 C.F.R. § 1502.9(b); id. § 1503.4(a). In responding to

25a

comments in the final EIS, the agency is permitted to

(1) “[m]odify alternatives including the proposed

action,” (2) “[d]evelop and evaluate alternatives not

previously given serious consideration,” (3) modify or

supplement its analyses, (4) make factual corrections,

or (5) explain why the comments do not merit further

agency response. 40 C.F.R. § 1503.4(a)(1)–(4). The

agency must also identify preferred alternatives in the

final EIS unless prohibited by law. 40 C.F.R.

§ 1502.14(e).

Where necessary, an agency must also prepare a

supplemental EIS. An agency must prepare a

supplemental EIS if (1) “[t]he agency makes

substantial changes in the proposed action that are

relevant to environmental concerns,” or (2) “[t]here are

significant new circumstances or information relevant

to environmental concerns and bearing on the

proposed action or its impacts.” 40 C.F.R.

§ 1502.9(c)(1)(i)–(ii). An agency may also prepare a

supplemental EIS if it determines that doing so would

further NEPA’s purpose. 40 C.F.R. § 1502.9(c)(2).

When we review an EIS prepared under NEPA, our

“role is ‘simply to ensure that the agency has

adequately

considered

and

disclosed

the

environmental impact of its actions and that its

decision is not arbitrary or capricious.’” Nat’l Comm.

for the New River v. FERC, 373 F.3d 1323, 1327 (D.C.

Cir. 2004) (quoting Baltimore Gas & Elec. v. NRDC,

462 U.S. 87, 97–98 (1983)). We must “ensure that the

agency took a ‘hard look’ at the environmental

consequences of its decision to go forward with the

project.” Id. (quoting City of Olmsted Falls v. FAA, 292

F.3d 261, 269 (D.C. Cir. 2002)). In determining

26a

whether an agency is required to supplement its EIS,

we also apply the arbitrary-and-capricious standard.

Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 376

(1989).

In Marsh v. Oregon Natural Resources Council, the

Supreme Court evaluated whether NEPA required an

agency to prepare a supplemental EIS after finalizing

the EIS. 490 U.S. 360 (1989). The Court concluded

that, “the decision whether to prepare a supplemental

EIS is similar to the decision whether to prepare an

EIS in the first instance.” Id. at 374. If the federal

action is pending, then the new information that

comes to light must be “sufficient to show that the

remaining action will affect the quality of the human

environment in a significant manner or to a significant

extent not already considered” to require a

supplemental EIS. Id. (internal alteration and

quotation omitted). Put simply, courts must apply the

rule of reason, which “turns on the value of the new

information to the still pending decisionmaking

process.” Id. at 374. In turn, we have held that “[t]he

overarching question is whether an EIS’s deficiencies

are significant enough to undermine informed public

comment and informed decisionmaking.” Mayo v.

Reynolds, 875 F.3d 11, 20 (D.C. Cir. 2017) (quoting

Sierra Club v. FERC, 867 F.3d 1357, 1368 (D.C. Cir.

2017)).

Under this standard, we conclude that the

Department was not required to prepare a

supplemental or a new EIS when it selected the Elk

Grove location. As we have time and again made clear,

“a [supplemental EIS] must be prepared only where

new information ‘provides a seriously different picture

27a

of the environmental landscape.’” Friends of Capital

Crescent Trail v. FTA, 877 F.3d 1051, 1060 (D.C. Cir.

2017) (quoting Nat’l Comm. for the New River v.

FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004)). The

Department’s identification in the final EIS of a

preferred action among the alternatives it had

assessed did not result in a serious change in the

environmental landscape. Nor does the fact that the

Department buttressed its analysis in the final EIS

help Stand Up’s argument. To support its argument

that new information affecting the environmental

analysis came to light, Stand Up points to the

hundreds of pages of analysis that the Department

included in the appendix of the final EIS, but Stand

Up fails to point to anything in these pages that

suggests a significant development, thereby requiring

supplementation.

Moreover, nothing prohibited the Department from

buttressing its analysis between the draft EIS and the

final EIS. In the final EIS, the agency must “respond

to comments” and “discuss . . . any responsible view

which was not adequately addressed in the draft” EIS.

40 C.F.R. § 1502.9(b); see also id. § 1503.4(a)

(permitting the agency to respond to comments by

“[m]odify[ing] alternatives including the proposed

action” and “[s]upplement[ing], improv[ing], or

modify[ing] its analyses” in the final EIS). But this

requirement does not, as Stand Up suggests, prohibit

the Department from buttressing its initial analysis.

And the Seventh Circuit’s holding in Habitat

Education Center does not contradict this proposition.

As Stand Up acknowledges, the Seventh Circuit

concluded that when “[s]trictly construed,” NEPA

regulations “permit an agency to issue a final EIS that

28a

does no more than incorporate a previously issued

draft EIS and respond to comments received.” Habitat

Educ. Ctr., Inc. v. U.S. Forest Servs., 673 F.3d 518, 527

(7th Cir. 2012) (emphasis added). That does not mean

that an agency is prohibited from going further and

bolstering its analysis in the final EIS. The agency

must only be sure that the new analysis is not based

on new information that paints “a seriously different

picture” of the impact of the project. 5

Nor did the Department’s decision to select the Elk

Grove location fail to properly notify the public of its

plans. “Publication of an EIS, both in draft and final

form, also serves a larger informational role” and

“provides a springboard for public comment.”

Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 349 (1989). As such, we must review “whether an

EIS’s deficiencies are significant enough to undermine

informed

public

comment

and

informed

decisionmaking.” Mayo, 875 F.3d at 20 (quoting Sierra

Club, 867 F.3d at 1368). But the designation of the Elk

Grove site as the preferred alternative did not deprive

the public and interested parties of the opportunity to

meaningfully comment on or evaluate the proposal.

First, the Department listed the Elk Grove site as an

alternative proposal. J.A. 968, 970. Second, the

Department extensively analyzed the Elk Grove site

in its draft EIS. J.A. 1191, 1271–1275, 1279–1324,

1329–1338. The Department also published the draft

And this determination is subject to considerable judicial

deference. See Friends of Capital Crescent Trail, 877 F.3d at 1059

(“If an agency’s decision not to prepare a [supplemental EIS]

turns on a ‘factual dispute the resolution of which implicated

substantial agency expertise,’ the court defers to the agency’s

judgment.” (quoting Marsh, 490 U.S. at 376)).

29a

EIS online and made it available in the Galt public

library, which is only a few miles away from Elk

Grove. J.A. 969. Third, the Department’s inclusion of

the Elk Grove site triggered public comment,

including by Stand Up and Lynn Wheat, two of the

plaintiffs in this litigation. Thus, not only did the

Department provide enough information in its draft

EIS to allow for public comment on the Elk Grove site,

but it actually did lead to public participation,

including by Appellants. Therefore, the Department

satisfied its public notice requirements and was not

required to prepare a supplemental or a new EIS.

Appellants’ remaining arguments are similarly

without merit. First, Appellants argue that the

Department failed to follow NEPA regulations

because it only made the City of Elk Grove a

cooperating agency later in the process. But as the

regulation that Appellants cite makes clear, the lead

agency must only request “the participation of each

cooperating agency in the NEPA process at the earliest

possible time.” 40 C.F.R. § 1501.6 (emphasis added).

Moreover, an agency could “request the lead agency to

designate it a cooperating agency,” id., which is what

the City of Elk Grove did, and the Department granted

that request. It was thus not error for the Department

to fail to promptly include the City of Elk Grove as a

cooperating agency.

Second, Appellants argue that the turnaround time

between the close of the final EIS’s comment period

and the issuance of the ROD is impermissibly short.

Admittedly, the two-day turnaround between the

closure of the comment period and the issuance of the

ROD is not typical. But Appellants offer no controlling

30a

precedent suggesting that the quick turnaround was

per se impermissible. And as the District Court

recognized, the one case Appellants cite—a district

court case from North Carolina—is inapposite. There,

the agency acknowledged that it failed to respond to

numerous comments and had already reopened the

NEPA process. North Carolina Alliance for Transp.

Reform, Inc. v. U.S. Dep’t of Transp., 151 F. Supp. 2d

661, 676 (M.D.N.C 2001). Here, however, Appellants

have not claimed that the Department failed to

respond to any comments. Thus, while it may have

been unusual for the Department to have moved so

quickly to issue the ROD, that short turnaround in

and of itself is insufficient to invalidate the decision.

Over seven years after the Department began the

process of acquiring land in trust on behalf of Wilton,

it has maintained its position that Wilton is a federally

recognized tribe and that the officials who made the

decision properly followed the Department’s

regulations. In acquiring this land in trust, the

Department followed all of its statutory and

regulatory obligations to consider the environmental

impact of this acquisition. We therefore affirm.

So ordered.

31a

APPENDIX C

MEMORANDUM OPINION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STAND UP FOR CALIFORNIA!

et al.,

Plaintiffs,

Case No.

1:17-cv-00058

(TNM)

U.S. DEPARTMENT OF

INTERIOR

et al.,

Defendants,

and

WILTON RANCHERIA,

CALIFORNIA

IntervenorDefendant.

MEMORANDUM OPINION

The U.S. Department of the Interior and its Bureau

of Indian Affairs (collectively, “Federal Defendants” or

the “Department”) agreed to acquire land in trust for

32a

the Wilton Rancheria Tribe of California (“Wilton”) to

build a casino in Elk Grove, California. Several Elk

Grove residents and an advocacy organization, Stand

Up for California! (collectively, “Stand Up”), challenge

that acquisition.

In a previous ruling, the Court granted summary

judgment to the Department and IntervenorDefendant Wilton Rancheria (collectively, the

“Defendants”) on Counts I and II, which challenged

the authority of interim decision-makers to act on

Wilton Rancheria’s trust application. See Stand Up for

Cal! v. U.S. Dep’t of Interior, 298 F. Supp. 3d 136

(D.D.C. 2018) (“Stand Up I”). Pending here are Stand

Up’s motion for summary judgment and cross-motions

for summary judgment from the Department and

Wilton on the remaining counts. Finding that the

Department complied with the relevant statutes when

it acquired the Elk Grove site, the Court will grant

summary judgment for the Department and Wilton

and deny it for the Plaintiffs.

I. BACKGROUND

In 2013, Wilton asked the Bureau of Indian Affairs

(“BIA”) to acquire land in trust on its behalf,

identifying a 282-acre parcel near Galt, California as

the proposed site. AR13431; Mem. in Opp. to Pls.’ Mot.

for Summ. J. and in Supp. of Wilton Rancheria, Cal.’s

Cross-Mot. for Summ. J. (“Wilton’s Cross-Mot. for

Summ. J.”) 18, ECF No. 96; see Am. Compl. ¶ 31, ECF

No. 26. 1 The BIA examined the Galt site for three

1 All page citations are to the page numbers generated by the

Court’s CM/ECF system.

33a

years, along with six alternatives. AR16281; Mem. in

Opp. to Pls.’ Mot. for Summ. J. and in Supp. of Fed.

Defs.’ Cross-Mot. for Summ. J. (“Fed. Defs.’ Cross-Mot.

for Summ. J.”) 12, ECF No. 98–1. The BIA published

a notice of the Final Environmental Impact Statement

(“Final EIS”) shortly after the November 2016

presidential election, not for the Galt site (Alternative

A), but for a different, 36-acre parcel of land in nearby

Elk Grove (Alternative F). AR10259; see also FEIS and

a Revised Draft Conformity Determination for the

Proposed Wilton Rancheria Fee-to-Trust and Casino

Project, Sacramento County, Cal., 81 Fed. Reg. 90379

(Dec 14, 2016).

Stand Up had expected during the years-long

process that the Department would acquire land in

Galt, not Elk Grove, so they immediately sought to

delay the acquisition of title to the Elk Grove land by

making several requests to the Secretary of the

Interior (the “Secretary”). Am. Compl. ¶¶ 38, 40. When

the Department denied Stand Up’s requests, they sued

in this District, seeking a temporary restraining order

and preliminary injunction against the Department to

prevent acquisition of title to the land. Id. ¶ 41.

Another judge in this District denied the motions,

after which Stand Up formally applied to the

Department for a stay under 5 U.S.C. § 705. Minute

Order, Jan. 13, 2017; Minute Order, Jan. 17, 2017;

Am. Compl. ¶ 43.

Rather than halting the process, the Department

shifted into warp speed—for a federal bureaucracy—

to approve the application for the Elk Grove site. The

Environmental Protection Agency (“EPA”) filed a

Federal Register notice of the Final EIS, which created

34a

a 30-day waiting period that expired January 17, 2019.

Environmental Impact Statements; Notice of

Availability, 81 Fed. Reg. 91169 (Dec. 16, 2016); Fed.

Defs.’ Cross-Mot. for Summ. J. 13. Two days after the

waiting period expired the Department issued a

Record of Decision (“ROD”) approving Wilton’s

application and authorizing acquisition of the Elk

Grove land in trust. AR24430; Fed. Defs.’ Cross-Mot.

for Summ. J. 13. This was the final day of the Obama

Administration.

After the Court’s decision in Stand Up I, Counts

III–V remain. See 298 F. Supp. 3d at 138. Count III

challenges Wilton Rancheria’s status as a “recognized

Indian tribe now under Federal jurisdiction.” Am.

Compl. ¶ 87; 25 U.S.C. § 5129. Count IV alleges that

the Elk Grove Site cannot be used for gaming because

it does not qualify as “Indian lands.” Am. Compl. ¶¶

94, 96, 101; 25 U.S.C. § 2703(d). Count V challenges

the Department’s compliance with the National

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

et seq., and the Administrative Procedure Act (“APA”),

5 U.S.C. § 706(2)(A), (D). Am. Compl. ¶¶ 103–104. The

parties’ cross-motions for summary judgment are now

ripe. Pls.’ Mot. for Summ. J., ECF No. 91; Wilton’s

Cross-Mot. for Summ. J., ECF No. 96; Fed. Defs.’

Cross-Mot. for Summ. J., ECF No. 98-1. 2

II.

LEGAL STANDARD

Summary judgment is usually only appropriate if

there is no genuine issue as to any material fact and

2 This Court’s jurisdiction and venue are established under 28

U.S.C. §§ 1331, 1391, 2201–2202 and 5 U.S.C. §§ 702, 706.

35a

the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. Pro. 56. But when a court is

reviewing an administrative agency’s decision, the

standard set out in Federal Civil Procedure Rule 56

does not apply. See Richards v. I.N.S., 554 F.2d 1173,

1177 (D.C. Cir. 1977). Instead, as the parties

acknowledge, courts review an agency’s decision under

the APA. See Ramaprakash v. Fed. Aviation Admin.,

346 F.3d 1121, 1124 (D.C. Cir. 2003).

When a party challenges agency action under the

APA, “the district judge sits as an appellate tribunal”

and the “entire case on review is a question of law.”

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C.

Cir. 2001) (cleaned up). A court must “hold unlawful

and set aside agency action” that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 705; Mayo v.

Reynolds, 875 F.3d 11, 19 (D.C. Cir. 2017). “Agency

action is arbitrary and capricious ‘if the agency has

relied on factors which Congress has not intended it to

consider, entirely failed to consider an important

aspect of the problem, or offered an explanation for its

decision that runs counter to the evidence before the

agency.’” Mayo, 875 F.3d at 19 (quoting Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983)). A court “must not substitute its own

judgment for that of the agency.” Id. at 19–20 (cleaned

up).

36a

III.

ANALYSIS

A. The Plaintiffs Have Standing to Sue

The Court begins by considering Article III

standing. At least one plaintiff “must present an injury

that is concrete, particularized, and actual or

imminent; fairly traceable to the defendant’s

challenged behavior; and likely to be redressed by a

favorable ruling.” Dep’t of Commerce v. New York,

139 S. Ct. 2551, 2565 (2019) (internal quotations

omitted). Stand Up has standing “if one of its members

has standing.” Safari Club Int’l v. Jewell, 842 F.3d

1280, 1285 (D.C. Cir. 2016).

Plaintiffs Joe Teixeira, Patty Johnson, and Lynn

Wheat are all residents of Elk Grove, who claim harm

“by the decision to acquire land in trust and the

environmental impacts of the proposed action.” Am.

Compl. ¶ 8. Stand Up for California! itself, meanwhile,

includes Elk Grove residents who “will be affected by

the environmental and economic impacts of the

Rancheria’s proposed trust acquisition and tribal

casino.” Id. ¶ 9. They seek declaratory and injunctive

relief in the form of a court order “directing

Defendants to invalidate the [Record of Decision] and

record a rescission of the February 10, 2017

acceptance of the grant deed, in order to remove the

Elk Grove Site from trust.” Id. ¶¶ 1, 7. Thus, they meet

37a

all three standing requirements. The Defendants do

not argue otherwise. 3

B. Count III: Wilton

Recognized Tribe

Federally

After granting summary judgment to the

Defendants on Counts I and II in Stand Up I, 298 F.

Supp. 3d at 138, the Court now addresses Count III,

which challenges Wilton Rancheria’s legal status as a

federally recognized Indian tribe. Am. Compl. ¶ 87. To

analyze this claim, one must retrace Wilton’s history.

The historic Wilton Rancheria was in Sacramento

County, on land acquired for it by the federal

government. Am. Compl. ¶ 26. Then, in 1958, roughly

30 years after the government acquired the Rancheria,

Congress enacted the California Rancheria Act

(“CRA”), which authorized the termination of Wilton

Rancheria and 40 other California tribes. Pub. L. No.

85¬671, 72 Stat. 619 (amended 1964). The CRA stated

that, “After the assets of a rancheria or reservation

have been distributed pursuant to this Act, the

Indians who receive any part of such assets, and the

dependent members of their immediate families shall

not be entitled to any of the services performed by the

United States for Indians because of their status as

Indians.” CRA § 10(b), 72 Stat. at 621.

But that was not the end of the rancheria saga.

Congress later “expressly repudiated the policy of

3 But see Fed. Defs.’ Mot. for Summ. J. 43. Part C.2 of this Opinion

addresses Stand Up’s standing to challenge the Department’s

title examination review.

38a

terminating recognized Indian tribes” by enacting the

Federally Recognized Indian Tribe List Act of 1994

(“List Act”), Pub. L. No. 103-454, § 103, 108 Stat. 4791.

The List Act expressed Congressional intent “to

restore recognition to tribes that previously have been

terminated.” Id. It directed the Secretary of the

Interior to keep “a list of all federally recognized

tribes” in the United States. Id. And along with other

authorizing laws, Congress delegated to the Secretary

the authority to decide “whether groups have been

federally recognized in the past or whether other

circumstances support current recognition.” Mackinac

Tribe v. Jewell, 829 F.3d 754, 757 (D.C. Cir. 2016)

(citing 25 U.S.C. § 2). The List Act also said that an

Indian tribe may be recognized “by a decision of a

United States court,” which “may not be terminated

except by an Act of Congress.” List Act § 103, 108 Stat.

at 4791.

Under that authority, ten years ago, the

Department and the Wilton Rancheria entered into a

stipulated judgment in the Northern District of

California restoring Wilton Rancheria as a federally

recognized tribe. See AR596–621; Stipulation and

Order for Entry of Judgment, Wilton Miwok Rancheria

v. Salazar, No. 5:07-cv-02681-JF (N.D. Cal. June 8,

2009), ECF No. 61. The Department issued a Federal

application of section 10(b) of the [CRA]” and entitling

the tribe to “the same status as it possessed prior to

distribution of the assets of the Rancheria.”

Restoration of Wilton Rancheria, 74 Fed. Reg.

33468-02 (July 13, 2009). The federal government’s

list of recognized tribes now includes Wilton. See

Indian Entities Recognized by and Eligible to Receive

39a

Services From the U.S. Bureau of Indian Affairs,

84 Fed. Reg. 1200-01, 1204 (Feb. 1, 2019).

In the Indian Reorganization Act (“IRA”) of 1934,

Congress delegated to the Department authorization

to acquire land in trust “for the purpose of providing

land for Indians.” 25 U.S.C. § 5108. The term “Indian”

under the IRA includes “all persons of Indian descent

who are members of any recognized Indian tribe now

under Federal jurisdiction.” Id. § 5129. The Secretary

has created procedures for these “fee-to-trust” actions

in the Code of Federal Regulations. See 25 C.F.R. §

151.1 et seq.

Stand Up makes, in its words, a “straightforward”

argument that the CRA precludes the Federal

Defendants’ trust acquisition. Pls.’ Reply Mem. 9, ECF

No. 100. In its final form, that argument goes like this:

The CRA says that “all statutes of the United States

which affect Indians because of their status as

Indians” do not apply to Indians who received “the

assets of a rancheria or reservation” under the Act. Id.;

see CRA § 10(b), 72 Stat. at 621. Indians in Wilton

received rancheria assets under the CRA. Pls.’ Reply

Mem. 9. The Department thus violated the CRA when

it acquired land in trust for the Wilton Rancheria

under Section 5 of the IRA. Id. at 9–10; see 25 U.S.C.

§ 5108. The stark language of the CRA buttresses

Stand Up’s argument.

But the Department and Wilton challenge Stand

Up’s second premise and argue that the stipulated

judgment between the Department and Wilton

restored the tribe to the same status it held before the

rancheria assets were distributed under the CRA. Fed.

40a

Defs.’ Reply Mem. 6, ECF No. 104; Wilton’s Reply

Mem. 8–9, ECF No. 103. Wilton notes that the CRA

“only applies to a rancheria once its assets ‘have been

distributed pursuant to this Act.’” Wilton’s Reply Mem.

8–9 (quoting CRA § 10(b)). And the judgment said

expressly that Wilton “was not lawfully terminated,

and the Rancheria’s assets were not distributed, in

accordance with the provisions of the [CRA].” AR602.

The judgment even addressed trust land, stipulating

that “The Department of the Interior will process . . .

any applications for land into trust for any parcels of

land acquired by the Tribe.” AR605. The Defendants

have the better argument here. Under the plain terms

of the stipulated judgment, the CRA does not apply to

Wilton.

And that is not all. Congress authorized restoration

for “tribes that previously have been terminated.” List

Act § 103, 108 Stat. at 4791. More, the List Act

specifically prescribed “a decision of a United States

court” as one of the methods for tribal recognition. Id.

So even if the CRA did strip Wilton of its tribal status,

the List Act and the stipulated judgment relieved

Wilton from “the application of section 10(b) of the

[CRA]” and entitled the tribe to “the same status as it

possessed prior to distribution of the assets of the

Rancheria.” 74 Fed. Reg. 33468-02. To the extent that

there is a conflict between the 1958 CRA and 1994 List

Act, of course the more recent statute prevails. See

Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 144 (2000).

In earlier filings, Stand Up appeared to challenge

the 2009 settlement itself, arguing that the

Department “cannot violate a federal statute because

41a

it agreed to the action by stipulation,” and

characterizing the settlement agreement as a violation

of federal law. Pls.’ Mot. for Summ. J. 20 & n.4. But

their Reply Brief clarifies that they do not challenge

the settlement itself, and they now assert that the

settlement cannot restore rights that the CRA

revoked. See Pls.’ Reply Mem. 12 (“[T]he Plaintiffs did

not challenge—and did not need to challenge—

Wilton’s status as a federally recognized tribe to assert

that BIA lacks authority to acquire the Elk Grove Site

in trust.”). By going all in on the CRA argument, Stand

Up has abandoned its attack on the settlement

agreement. 4

This is a difficult line for Stand Up to walk,

however. After all, Congress specifically authorized

the restoration of terminated tribes to their pre-CRA

status. See List Act § 103, 108 Stat. at 4791. And the

court judgment reset the CRA’s effects, stipulating

that Wilton “was not lawfully terminated, and the

Rancheria’s assets were not distributed, in accordance

with the provisions of the [CRA].” AR602. If one

accepts the stipulated judgment, one must also accept

that it carried out Congressional intent to undo the

4 Stand Up also takes pains to argue that the Department

“conflates ‘restoration’ and ‘recognition’” despite important

differences between the two concepts. Pls.’ Reply Mem. 12. But

after highlighting those differences, Stand Up concludes that the

distinction would matter only if they had “actually challenged

Wilton’s ‘restoration’ or ‘recognition.’” Id. at 13. “But because

Plaintiffs do not challenge either, the Court need not decide

whether [the Department’s decision to recognize Wilton]

warrants judicial deference.” Id. at 13–14. The Court agrees. Like

Stand Up’s arguments against the settlement agreement itself,

the Court considers these arguments abandoned.

42a

purported termination of Wilton’s status under the

CRA. After conceding the settlement’s legitimacy,

Stand Up reveals its own argumentative flaw: even if

the syllogism is valid, Stand Up’s conclusion does not

follow.

Stand Up is no new fish to the casino litigation

scene. They recently brought a challenge to a similar

stipulated judgment involving the North Fork Tribe.

See Stand Up for California! v. Dep’t of Interior

(“North Fork”), 204 F. Supp. 3d 212 (D.D.C. 2016),

aff’d, 879 F.3d 1177 (D.C. Cir. 2018). In dismissing

Stand Up’s challenge, Chief Judge Howell noted that

North Fork’s stipulated judgment reflected the

coordinated judgment of all three branches of the

federal government. Id. at 300–301. The executive and

judiciary “validated the existence of the North Fork

Tribe and found the Tribe to qualify appropriately as

a recognized Indian tribe,” id. at 300, and Congress

sanctioned that judgment through the List Act. See id.

at 300–301; List Act § 103(3). The result in North Fork

was that the tribe “as a federally recognized Indian

tribe, has the benefit of land acquisition under § 465

of the IRA, like any other federally recognized tribe.”

204 F. Supp. 3d at 301. So too here. There is no basis

to invalidate the Department’s land acquisition for

Wilton; it rests on the tripartite authority of the entire

federal government. The Court will grant summary

judgment to the Defendants as to Count III.

43a

C. Count IV: The Department May Acquire

Gaming Land for Wilton

1. Stand Up Lacks Standing to Assert its

Encumbrances Claim

Count IV challenges the Department’s authority to

acquire land for Wilton under the Indian Gaming

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

IGRA “provide[s] 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.” Id. § 2702(1).

Stand Up argues that encumbrances on the Elk

Grove site prevent it from qualifying as “Indian lands”

under the IGRA, defined as “any lands title to which

is either held in trust by the United States for the

benefit of any Indian tribe or individual or held by any

Indian tribe or individual subject to restriction by the

United States against alienation and over which an

Indian tribe exercises governmental power.” 25 U.S.C.

§ 2703(4); see Pls.’ Mot. for Summ. J. 45. Stand Up

claims that the Department violated the APA by

failing to resolve the encumbrances. Pls.’ Mot. for

Summ. J. 45. But Stand Up lacks Article III standing

to assert this because they do not have an interest in

the Department’s title examination process. See

AR14062–63; New York, 139 S. Ct. at 2565.

The Department’s regulations do not require that

all encumbrances be eliminated before acquiring land.

The key question is whether the Secretary

“determines that the liens, encumbrances or

infirmities make title to the land unmarketable.”

44a

25 C.F.R. § 151.13(b). If title will be unmarketable, the

Secretary “shall require elimination” of the

encumbrances before “taking final action on the

acquisition.” Id. (emphasis added). But if the

Secretary concludes title will remain marketable

despite the liens, encumbrances, or infirmities,

elimination is discretionary. Id.

The Department noted in its ROD that the purpose

of title evidence “is to ensure that the Tribe has

marketable title to convey to the United States,

thereby protecting the United States.” AR14064 n.198;

see also Title Evidence for Trust Land Acquisitions, 81

Fed. Reg. 30173-02, 30174 (May 16, 2016). The

Department also found that title examination “is

separate from the process of deciding whether to

accept land in trust in the first place,” and that “only

the United States has an interest in ensuring its own

compliance with the title examination process.”

AR14063–64.

Stand Up rests their challenge on the vindication

of private property rights. Pls.’ Mot. for Summ. J. 45

(“To the extent that proposed trust land might include

private rights (e.g., easements, right-of-way, etc.), it is

critical that those property rights be protected.”). But

not their own. See Fed. Defs.’ Cross-Mot. for Summ. J.

43. Recall that standing requires “an injury that is

concrete, particularized, and actual or imminent;

fairly traceable to the defendant’s challenged

behavior; and likely to be redressed by a favorable

ruling.” New York, 139 S. Ct. at 2565.

Stand Up lacks standing because they have not

suffered an “injury in fact.” See Lujan v. Defenders of

45a

Wildlife, 504 U.S. 555, 560 (1992). As the Department

correctly argues, “a plaintiffs’ injury in trust

challenges typically derives from the decision to accept

land in trust, not from the title examination that

precedes the formal conveyance of title.” Fed. Defs.’

Cross-Mot. for Summ. J. 43–44. Accord Upstate

Citizens for Equal., Inc. v. Jewell, No. 5:08- CV-0633

LEK, 2015 WL 1399366, at *12 (N.D.N.Y. Mar. 26,

2015) (“Plaintiffs’ alleged injuries are caused by the

decision to acquire the land into trust, and not by the

title examination procedures.”), aff’d sub nom.,

Upstate Citizens for Equal., Inc. v. United States, 841

F.3d 556 (2d Cir. 2016). Stand Up does not have an

interest in either the land acquisition or the title

examination process, instead challenging the

Department’s review based on evidence that Wilton

and the Department recognized encumbrances as

obstacles to clean title. See id. at 45–46; AR213–15,

AR1206, AR3386–87, AR3752. This is not a concrete

and particularized injury. See New York, 139 S. Ct. at

2565.

The APA “grants standing to a person ‘aggrieved by

agency action within the meaning of a relevant

statute.’” Assoc. of Data Proc. Serv. Orgs., Inc. v.

Camp, 397 U.S. 150, 153 (1970) (quoting 5 U.S.C.

§ 702). And it is well settled that plaintiffs like Stand

Up can challenge land-into-trust acquisitions under

the IGRA and the Department’s regulations when

they have an interest in the land. See, e.g., Amador

County, Cal. v. Salazar, 640 F.3d 373, 379 (D.C. Cir.

2011). But the Department’s title examination is

different because unlike a land acquisition, clean title

affects only the United States, not the “surrounding

community.” See id. Under the Department’s

46a

regulations, the Secretary must obtain title evidence,

but retains discretion to resolve liens, encumbrances,

or infirmities. 25 C.F.R. § 151.13. So while the

Department’s land acquisition itself might encroach

on property rights or the public’s land use, infirm title

affects only the United States. Title Evidence for Trust

Land Acquisitions, 81 Fed. Reg. at 30174. Recognizing

this, the ROD rejected public participation precisely

because title review ensures that “the title actually

taken does not expose the United States to liability.”

AR14064.

Stand Up’s claims against the Department’s title

review exceed the limits of the standing doctrine.

“NEPA, of course, is a statute aimed at the protection

of the environment.” ANR Pipeline Co. v. FERC, 205

F.3d 403, 408 (D.C. Cir. 2000). And the APA confers a

right of judicial review for those wronged by agency

action, including those in violation of NEPA. See 5

U.S.C. § 702. But parties cannot challenge an agency’s

internal processes when they are of no direct

consequence to the challenger. To extend standing as

far would be hardly different than conferring standing

on the rejected basis of “informational injury,” which

the D.C. Circuit predicts “would potentially eliminate

any standing requirement in NEPA cases.” Found. on

Econ. Trends v. Lyng, 943 F.2d 79, 84 (D.C. Cir. 1991).

To illustrate this, consider whether Stand Up’s

theory would bar anyone from making similar

arguments against the Department’s title review.

Although they rest their challenge on the assumption

that the encumbrances reveal private property rights,

Stand Up does not allege any interest in those rights

at all. See Pls.’ Mot. for Summ. J. 45. And if they do

47a

not have an interest in the property but can

nevertheless claim standing to challenge the title

examination, there is no limiting who could pursue the

same challenge. Cf. Lyng, 943 F.2d at 85 (“If one of

NEPA’s purposes is to provide information to the

public, any member of the public— anywhere—would

seem to be entitled to receive it.”).

Because Stand Up has not suffered an injury as a

result of the Department’s title review, they have no

more right to challenge the title examination than any

other member of the public. Their claim ignores the

“irreducible constitutional minimum of standing” that

a “plaintiff must have suffered or be imminently

threatened with a concrete and particularized injury

in fact. . . .” Lexmark Intern., Inc. v. Static Control

Components, Inc., 572 U.S. 118, 125 (2014) (internal

citations and quotations omitted). It therefore cannot

stand.

2. Wilton Qualifies for the Indian Gaming

Regulatory Act’s “Restored Lands”

Exception

Although the IGRA generally prohibits gaming on

newly acquired land, there is an exception “when

lands are taken into trust as part of the restoration of

lands for an Indian tribe that is restored to Federal

recognition.” Id. § 2719(b)(1)(B)(iii). The Department’s

implementing regulations for the IGRA are codified in

25 C.F.R. Part 292 (2008). Under the “restored lands”

exception, Wilton must meet each of these four

conditions:

48a

(a) The tribe at one time was federally

recognized;

(b) The tribe at some later time lost its

government-to-government

relationship;

government-to-government

relationship, the tribe was restored

to Federal recognition; and

(d) The newly acquired lands meet the

criteria of “restored lands.”

25 C.F.R. § 292.7. Each of the four conditions also

references a later section in the regulation, which the

Court analyzes below. See id.

Wilton applied to the Department for a

determination that it qualifies under this “restored

lands” exception. AR14035. Stand Up argues that

Wilton cannot qualify as a restored tribe and the Elk

Grove site cannot qualify as restored land. Am. Compl.

¶¶ 98, 100.

The Department’s Record of Decision (“ROD”)

contained a full analysis of Wilton’s qualification

under the “restored lands” exception. See AR14034-45.

When reviewing agency interpretation of a statute, the

Court “must give effect to the unambiguously

expressed intent of Congress.” Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

In keeping with Kisor v. Wilkie, the Court reviews the

Department’s application of its own regulation in the

49a

same way, “exhaust[ing] all the ‘traditional tools’ of

construction” to determine the meaning of the

regulation. 139 S. Ct. 2400, 2415 (2019) (citing

Chevron, 467 U.S. at 843 n.9).

The Court finds both the IGRA and the

Department’s regulation unambiguous and agrees

with the Department that Wilton qualifies under the

“restored lands” exception. See AR14034–14045.

Wilton meets the first condition because it was at one

time federally recognized under at least three of the

five methods for determining tribal recognition listed

in 25 C.F.R. § 292.8. See AR14037. Congress

terminated the Wilton Rancheria in the CRA, proving

the existence of a government-to-government

relationship between Congress and Wilton before the

termination. See AR14036–37; 25 C.F.R. § 292.8(c);

CRA § 10(b), 72 Stat. at 621. The same termination

also satisfies the second requirement that Wilton later

lost its government-to-government relationship. See

AR14038; 25 C.F.R. § 292.9(a). Third, a

“court-approved settlement agreement entered into by

the United States” restored Wilton to federal

recognition. 25 C.F.R. § 292.10(c); see AR14038–39,

AR596–621. Because Wilton meets the first three

conditions in § 292.7, the Court agrees with the

Department that Wilton “is a ‘restored tribe’ for

purposes of IGRA and Part 292.” AR14039.

To meet the fourth requirement, the newly

acquired land must qualify as “restored lands” under

§ 292.11. 25 C.F.R. § 292.7(d). Additionally, because a

court-approved settlement restored Wilton, § 292.11(c)

applies, and in turn points to the requirements of

§ 292.12:

50a

(a) The newly acquired lands must be located

within the State or States where the tribe

is now located, as evidenced by the tribe’s

governmental

presence

and

tribal

population, and the tribe must demonstrate

one or more of the following modern

connections to the land:

(1) The land is within

commuting distance of

existing reservation;

reasonable

the tribe’s

(2) If the tribe has no reservation, the land

is near where a significant number of

tribal members reside;

(3) The land is within a 25-mile radius of

the tribe’s headquarters or other tribal

governmental facilities that have

existed at that location for at least

2 years at the time of the application for

land-into-trust; or

(4) Other factors demonstrate the tribe’s

current connection to the land.

(b) The tribe must demonstrate a significant

historical connection to the land.

connection between the date of the

acquisition of the land and the date of the

tribe’s restoration. To demonstrate this

connection, the tribe must be able to show

that either:

51a

(1) The land is included in the tribe’s first

request for newly acquired lands since

the tribe was restored to Federal

recognition; or

(2) The tribe submitted an application to

take the land into trust within 25 years

after the tribe was restored to Federal

recognition and the tribe is not gaming

on other lands.

Wilton

meets

the

requirements

under

§ 292.12(a)(3) and (4). As the Department noted in its

ROD, the Elk Grove site is two miles from Wilton’s

current headquarters and three miles from its former

headquarters, satisfying subsection (a)(3). AR14042.

And the site is within Wilton’s Service Delivery Area

of Sacramento County, satisfying subsection (a)(4).

Id.; Indian Health Service, Notice of Service Delivery

Area Designation for Wilton Rancheria, 78 Fed. Reg.

55731-02 (Sept. 11, 2013).

Wilton also has “significant historical connection”

to the site, which “means the land is located within the

boundaries of the tribe’s last reservation under a

ratified or unratified treaty, or a tribe can

demonstrate by historical documentation the

existence of the tribe’s villages, burial grounds,

occupancy or subsistence use in the vicinity of the

land.” 25 C.F.R. § 292.2. The Department found that

the site “is located within the territory once

predominantly occupied by” ancestors of Wilton

members, near “historic” village sites of other

ancestors, “and just a short distance from territory

predominantly occupied by” still other ancestors.

52a

AR14042–43. The site is also fewer than six miles from

the historic Wilton Rancheria and “a short distance”

from a cemetery that Wilton “members have long used

as a burial site.” AR14043. These attachments show

Wilton’s historical connection to the Elk Grove site.

Finally, Wilton has met the “temporal connection

between the date of the acquisition of the land and the

date of the tribe’s restoration.” 25 C.F.R. § 292.12(c).

Despite Stand Up’s argument to the contrary—which

they raise only in a footnote, see Pls.’ Mot. for Summ.

J. 21 n.6—Wilton included the land in “the tribe’s first

request for newly acquired lands” since restoration. 25

C.F.R. § 292.12(c)(1). While Wilton first requested

acquisition of the Galt site, they withdrew that request

in favor of the Elk Grove land. AR13215. The Galt site

was not a separate parcel under the “restored lands”

exception as Stand Up claims, because the

Department never acquired it. See 25 C.F.R. § 292.2

(“Newly acquired lands means land that has been

taken, or will be taken, in trust . . . .”). In other words,

since the Department never approved Wilton’s request

for the Galt land, the Department never considered it

“newly acquired lands.” See 25 C.F.R. § 292.12(c)(1).

Wilton also independently satisfied the temporal

requirement under subsection (c)(2), by making its

trust application well within 25 years of tribal

restoration. Wilton applied only five years after the

2009 restoration settlement. AR596–621, AR14045.

Even if Wilton had not met the “first request”

requirement of subsection (c)(1), this alone would meet

the temporal requirement. Thus, the Court agrees

with the Department that the Elk Grove site qualifies

as “restored lands” and that Wilton meets all four

53a

requirements of the IGRA’s “restored lands” exception.

See AR14045; 25 U.S.C. § 2719(b)(1)(B)(iii). The Court

will grant summary judgment to the Defendants as to

Count IV.

D. Count V: The Department Complied with

NEPA and the APA

Count V challenges the Department’s compliance

with NEPA and the APA. Am. Compl. ¶¶ 103–104; see

42 U.S.C. §§ 4321 et seq.; 5 U.S.C. § 706(2)(A), (D).

Before any federal agency adopts a major action

“significantly affecting the quality of the human

environment,” NEPA requires “a detailed statement”

on “the environmental impact of the proposed action,”

as well as any potential “alternatives to the proposed

action.” 42 U.S.C. § 4332(c). This process ensures that

agencies “consider every significant aspect of the

environmental impact of a proposed action” and keep

the public informed about their analysis. Balt. Gas &

Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97

(1983). “In other words, agencies must ‘take a hard

look at [the] environmental consequences’ of their

actions, and ‘provide for broad dissemination of

relevant environmental information.’” Pub. Emps. for

Envtl. Responsibility v. Hopper, 827 F.3d 1077, 1082

(D.C. Cir. 2016) (quoting Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350 (1989)) (brackets

in original).

The purpose of this requirement is to ensure “‘a

fully informed and well-considered decision, not

necessarily’ the best decision.” Theodore Roosevelt

Conserv. P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir.

2010) (quoting Vt. Yankee Nucl. Pow. Corp. v. Nat. Res.

54a

Def. Council, Inc., 435 U.S. 519, 558 (1978)). “If the

adverse environmental effects of the proposed action

are adequately identified and evaluated, the agency is

not constrained by NEPA from deciding that other

values outweigh the environmental costs.” Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 350

(1989).

Court review of administrative actions under

NEPA is the same as APA review. Mayo, 875 F.3d at

19. The Supreme Court has stated that “inherent in

NEPA and its implementing regulations is a ‘rule of

reason.’” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

767 (2004). The rule of reason governs judicial review

of decisions not to supplement an Environmental

Impact Statement (“EIS”). Marsh v. Or. Nat.

Resources Council, 490 U.S. 360, 372–73 (1989).

Whether an agency must complete a supplemental

EIS “turns on the value of the new information to the

still pending decisionmaking process.” Id. at 374.

1. The Department’s EIS is Sufficient

under NEPA

Stand Up argues that the Department failed to

consider the environmental impact of the Elk Grove

acquisition. Pls.’ Mot. for Summ. J. 34–38. They

identify three “major deficiencies” based on the

Department’s review of area water supply, public

safety risks, and traffic impacts. See id. at 46–50. The

Court will consider each in turn.

55a

a. The Department Considered the

Project’s Water Impact

Stand Up argues that the Department failed to

address the effect of the Elk Grove acquisition on the

Sacramento County Water Agency’s (“SCWA”) water

capacity or “the cumulative effects of the casino project

and the surrounding development.” Id. at 47.

Referencing the SCWA’s 2005 Master Plan, Stand Up

argues that Wilton’s proposed casino will require

“three times what SCWA budgeted” for the site. 5 Id.;

see AR11000. As a result, Stand Up claims that the

Department’s mitigation measures are inadequate,

and its selection of the Elk Grove site is unjustified.

Pls.’ Mot. for Summ. J. 47; see AR10703–04.

In fact, the Department thoroughly considered

water supply availability. The Final EIS noted that

although the Elk Grove site would have “[a] significant

effect” on water distribution, “detailed water analyses”

5 The Department and Wilton argue that Stand Up waived their

arguments related to the SCWA’s 2005 Master Plan because they

failed to raise them during the NEPA process. See Fed. Defs.’

Reply Mem. 19; Wilton’s Reply Mem. 21; Nuclear Energy Inst.,

Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004) (“It is a hard

and fast rule of administrative law, rooted in simple fairness, that

issues not raised before an agency are waived and will not be

considered by a court on review.”). But the Defendants’ bet

ignores the fact that the Department addressed similar

comments in the Final EIS. The Final EIS even referenced the

2005 Master Plan in response to a public comment challenging

the Draft EIS. See AR10729. The Court cannot say that the

Department was deprived of “a fair opportunity” to consider

arguments about the SCWA’s water capacity during its

administrative review. See Nuclear Energy, 373 F.3d at 1298

(citation and formatting omitted).

56a

combined with appropriate mitigation measures

showed that “there would be adequate water supply to

serve any of the project alternatives.” AR10703,

AR10729. The Department also noted that the SCWA

had already accounted for increased water demands at

the Elk Grove site associated with other development

plans. AR10729. The Final EIS concluded that the

only water option for the Elk Grove site would be

reliance on the SCWA but noted that the impact on

water distribution facilities would be no more

significant than the alternatives considered in Galt,

and “less than significant” after mitigation measures.

AR10704. Wilton also agreed to pay for additional

water development improvements. Id.

Stand Up’s concerns about the regional water

supply

are

well-taken,

particularly

drought-afflicted California. See Pls.’ Mot. for Summ.

J. 47. But it does not follow that the Department failed

to address those concerns or, critically, that it violated

NEPA. Recall that so long as the Department

“adequately

identified

and

evaluated”

the

environmental impacts, “the agency is not constrained

by NEPA from deciding that other values outweigh the

environmental costs.” Robertson, 490 U.S. at 350. The

Department reviewed the water supply constraints,

identified mitigation measures, including Wilton’s

agreement to fund improvements, and found that the

SCWA would be able to meet the site’s needs.

AR10703.

Considering the water supply constraints in

Sacramento County, it is safe to say that the

Department could not find a perfect answer. But that

is not what the law requires. The law does not even

57a

require “the best decision.” Salazar, 616 F.3d at 503.

It only requires “a fully informed and well-considered

decision.” Vt. Yankee, 435 U.S. at 558. The

Department’s analysis of water supply meets that

requirement under the arbitrary and capricious

review standard. See Advocates for Hwy. & Auto Safety

v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136,

1150 (D.C. Cir. 2005) (“[C]ourts are not authorized to

second-guess agency rulemaking decisions; rather the

role of the court is to determine whether the agency’s

decision is arbitrary and capricious for want of

reasoned decisionmaking.”).

b. The Alleged Public Safety Impact

Not

Environmental

Concern

Stand Up also argues that the Department failed

to consider the public safety risk of an explosion or

attack at a propane facility one-half mile from the Elk

Grove site. Pls.’ Mot. for Summ. J. 49. Stand Up faults

the Department for failing to conduct a review in its

Draft EIS altogether, and for failing to consider fully

the risks in the Final EIS. See id.

But the risk of accident or sabotage “on an

unrelated, pre-existing facility” exceeds the scope of

the Department’s review on this proposal. See Wilton’s

Reply Mem. 24 & n.3. “NEPA does not require the

agency to assess every impact or effect of its proposed

action, but only the impact or effect on the

environment.” Metro. Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766, 774 (1983) (emphasis in

original). Stand Up’s creative claim—that the

development might make another facility a likelier,

58a

because more deadly, target for terrorists—does not

transform the issue into an environmental concern. An

accidental explosion or terrorist attack at the propane

facility are not environmental impacts any more than

they could be proximately traced to the proposed

casino. See Metro. Edison, 460 U.S. at 774.

Yet the Department did consider the potential

impact of a threat to the propane facility and

concluded earlier reviews had adequately addressed

the threat. See AR24781–82. The Department

contends that contrary to Stand Up’s claims, “the rule

is not ‘in for a dime, in for a dollar.’ The Department’s

determination that [Stand Up’s] later submissions did

not change its opinion, AR24782, sufficed at a

minimum because the Department did not need to

respond to [Stand Up’s] speculative comments at all.”

Fed. Defs.’ Reply Mem. 21. The Court agrees. NEPA

did not require the Department to assess the impacts

to public safety posed by a potential terrorist attack.

The Department could have omitted the review

altogether without violating NEPA. So the fact that

the Department did address those impacts does not

create an opportunity for Stand Up to challenge the

quality of the review.

c. The Department Considered the

Project’s Traffic Impact

Stand Up’s final “major” attack on the EIS is its

failure to assess the traffic impacts of the Elk Grove

site’s increase from 28 proposed acres to the adopted

size of 36 acres. Pls.’ Mem. for Summ. J. 50. The

change was based exclusively on a new parking

structure after Wilton discovered that it would not be

59a

able to share parking with an adjacent shopping mall.

AR24771– 72. The Department concluded that the

gaming floor square footage, which remained

unchanged, would be the driver of customer demand,

and that the additional parking would “not [be]

expected to affect the number of customers who will

visit the proposed casino resort.” AR24771.

The Court’s role in this review is not to “‘flyspeck’

an agency’s environmental analysis, looking for any

deficiency no matter how minor.” WildEarth

Guardians v. Jewell, 738 F.3d 298, 308 (D.C. Cir.

2013) (cleaned up). The Department explained why

the lot needed to accommodate a new parking

structure and noted that the “currently mostly paved”

site would “not create any significant changes in the

environmental impacts” of the Elk Grove acquisition.

AR24771–72. That is a reasonable conclusion, as is the

Department’s finding that the size of the gaming floor,

and not the size of the parking structure, will

determine customer demand at the site. AR24771. The

Court will not “flyspeck” the Department’s review over

minor quibbles that the Department has considered in

its reasoned decisionmaking.

2. The Department was Not Required to

Perform a New or Supplemental EIS

The same standard of review for agency compliance

with NEPA also applies to the narrower review of an

agency’s obligations to prepare a new or supplemental

EIS. Marsh, 490 U.S. at 376. The court is “highly

deferential” to agency actions, which it presumes are

valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275,

283 (D.C. Cir. 1981). And while the court’s “inquiry

60a

into the facts is to be searching and careful,” it “is not

empowered to substitute its judgment for that of the

agency.” Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971). The “court must consider

whether the decision was based on a consideration of

the relevant factors and whether there has been a

clear error of judgment.” Id.

An agency must supplement an existing EIS only if

the agency “makes substantial changes in the

proposed action that are relevant to environmental

concerns,” or if there are “significant new

circumstances

information

relevant

environmental concerns and bearing on the proposed

action or its impacts.” 40 C.F.R. § 1502.9(c). An agency

need not conduct a new assessment “every time it

takes a step that implements a previously studied

action, so long as the impacts of that step were

contemplated and analyzed by the earlier analysis.”

Mayo, 875 F.3d at 16. To require otherwise would be

an exercise in superfluity.

The Supreme Court has explained that under the

rule of reason, “an agency need not supplement an EIS

every time new information comes to light after the

EIS is finalized.” Marsh, 490 U.S. at 373. Rather, “a

supplemental EIS must be prepared” only when a new

action will affect the quality of the environment “in a

significant manner or to a significant extent not

already considered.” Id. at 374.

Courts must also defer to the agency’s “informed

discretion” about whether to prepare a supplemental

EIS because it requires “substantial agency expertise.”

Id. at 376–77. That said, “courts should not

61a

automatically defer to the agency’s express reliance on

an interest in finality without carefully reviewing the

record and satisfying themselves that the agency has

made a reasoned decision based on its evaluation of

the significance—or lack of significance—of the new

information.” Id. at 378. “The overarching question is

whether an EIS’s deficiencies are significant enough

to undermine informed public comment and informed

decisionmaking.” Sierra Club v. FERC, 867 F.3d 1357,

1368 (D.C. Cir. 2017).

Stand Up argues that the Department had to

prepare a second EIS once Wilton applied for the Elk

Grove site instead of Galt or, at a minimum, needed a

supplemental EIS because of major changes to the

proposed action. Pls.’ Mot for Summ. J. 34. According

to Stand Up, when the Department changed “from

acquiring one site for a casino to acquiring another

site, [it] self-evidently made a ‘substantial change[] in

the proposed action.’” Id. (citing 40 C.F.R.

§ 1502.9(c)(1)(i))

(first

bracket

added).

The

Department counters that it “fully consider[ed] the

environmental impacts” of the Elk Grove site in both

the Draft EIS and Final EIS. Fed. Defs.’ Cross-Mot. for

Summ. J. 34. The Department also warns that Stand

Up’s argument boils down to an untenable claim that

“even though an agency must consider reasonable

alternatives in [a Statement], that consideration

cannot be so serious as to warrant choosing one of the

environmentally preferable alternatives identified in

the process.” Id. at 9.

Stand Up also lists several other shortfalls it deems

“significant new circumstances or information

relevant to environmental concerns and bearing on the

62a

proposed action or its impacts.” Pls.’ Mot. for Summ. J.

34 (quoting 40 C.F.R. § 1502.9(c)(1)(ii)). These include

complaints that the Department misidentified the

parcel of land and failed to consider the effects of

utility improvements, impacts on wastewater, the

proximity of residential neighborhoods, impacts on

police services and taxes, among other complaints. Id.

at 34–36. The Department counters that Stand Up’s

“laundry list . . . merely flyspecks the [Draft EIS] . . .

for missing minutiae and minor mistakes.” Fed. Defs.’

Reply Mem. 22; see WildEarth Guardians, 738 F.3d at

308. The Court agrees.

The Department did not have to conduct another

EIS simply because it ultimately adopted the Elk

Grove site over the Galt site. NEPA explicitly requires

that an EIS include any potential “alternatives to the

proposed action.” 42 U.S.C. § 4332(c). Closely related

proposals “shall be evaluated in a single impact

statement.” 40 C.F.R. § 1502.4. And “[t]he degree of

analysis devoted to each alternative in the EIS is to be

substantially similar to that devoted to the ‘proposed

action.’” CEQ, Forty Most Asked Questions

Concerning CEQ’s National Environmental Policy Act

Regulations, 46 Fed. Reg. 18026-01, 18027 (Mar. 23,

1981).

The Department did just that. From the start, it

evaluated the environmental impacts of seven

alternatives, including the initial proposal in Galt and

the adopted site in Elk Grove. And the Elk Grove site

received robust analysis in the Draft EIS and Final

EIS. See, e.g., AR10703– 04, AR10719–20,

AR11666-712, AR26979–80, AR26637, AR26985–87,

AR 27142–237; Wilton’s Cross-Mot. for Summ. J. 40

63a

n.10. As the Department notes, NEPA’s EIS

requirements would be empty if a new or

supplemental EIS was required every time an agency

adopted an alternative proposal. Fed. Defs.’

Cross-Mot. for Summ. J. 22. After all, the requirement

to “[r]igorously explore and objectively evaluate all

reasonable alternatives” lies at “the heart of” the EIS.

40 C.F.R. § 1502.14. Stand Up’s proposal would

require the Department—and every other federal

agency—to repeat this analysis for every alternative

proposal it adopts. There is no basis for such a rule in

logic or in the law. See 42 U.S.C. § 4332(c).

More, the Department did not define the Galt site

as the proposed action; Wilton’s application to the

Department did. Fed. Defs.’ Cross-Mot. for Summ. J.

22, 23 & n.14; see also 46 Fed. Reg. at 18028 (“the

proposed action may be granting an application to a

non-federal entity for a permit. The agency may or

may not have a ‘preferred alternative’ at the Draft EIS

stage . . . .”). It would be perverse to hold against the

Department a designation that it did not control. In

any event, the delineation of preferred and alternative

proposals is inconsequential when an agency properly

analyzes each, and the Department did that. See 42

U.S.C. § 4332(c).

And Stand Up’s “laundry list” of other complaints

also fails to paint a “seriously different picture of the

environmental landscape” that would require a

supplemental EIS. See City of Olmstead Falls v. FAA,

292 F.3d 261, 274 (D.C. Cir. 2002) (emphasis in

original). Stand Up cannot raise these issues in a

passing fashion and expect the Court to invalidate the

Department’s entire review. Cf. Airport Impact Relief,

64a

Inc. v. Wykle, 192 F.3d 197, 205 (1st Cir. 1999) (noting

arguments raised “in a perfunctory manner,

unaccompanied by some effort at developed

argumentation” are waived when they “do not attempt

to explain the manner in which the environment will

be significantly affected”). More, many of Stand Up’s

criticisms are entirely misplaced because the

Department analyzed the issues in its Draft EIS. See,

e.g.,

AR26513–15,

AR26610–15,

AR26616–27,

AR26637, AR26690–93, AR26853–54, AR26878–82,

AR26979– 88; Fed. Defs.’ Cross-Mot. for Summ. J. 39.

The Department was not required to complete a

supplemental EIS solely because it analyzed the

issues in greater detail in the Final EIS than it did in

the Draft. See Marsh, 490 U.S. at 374.

The Department took “a ‘hard look’ at the

environmental consequences of its actions, including

alternatives to its proposed course.” See Sierra Club,

867 F.3d at 1367. Stand Up has identified no

compelling analytical or legal deficiencies in that

“hard look,” let alone evidence that the Department’s

review was arbitrary or capricious. NEPA not only

contemplates that an agency may select an alternative

proposal, it demands that an agency look at the

alternatives. See 42 U.S.C. § 4332(c).

That is what happened here. The EIS considered

the Elk Grove site’s impacts on the quality of the

environment. See Marsh, 490 U.S. at 374. Considering

the Department’s environmental review, particularly

under the deferential arbitrary and capricious

standard, Stand Up has not shown that the Elk Grove

site presented significant environmental impacts that

the Department failed to consider. See id. To the

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contrary, the record shows a thorough and

comprehensive environmental review of each of the

alternatives, including the Elk Grove site. The Court

is satisfied that the Department made a “reasoned

decision” not to complete a new or supplemental EIS.

See id. at 378.

Stand Up’s reliance on Lemon v. McHugh, 668 F.

Supp. 2d 133 (D.D.C. 2009), fares no better than their

other arguments. See Pls.’ Mot. for Summ. J. 37. Stand

Up argues that Lemon compels the Department to

perform a more thorough evaluation before deciding

not to complete a supplemental EIS. Pls.’ Mot. for

Summ. J. 37. But in Lemon, the Final EIS came six

years before the plan was ultimately approved. 668 F.

Supp. 2d at 136. The court was not convinced that the

agency had fully considered the overall environmental

impact of the project. Id. at 140. In contrast to that

stale review, here the Department conducted a

thorough analysis in the Draft EIS and added to it in

the Final EIS, rendering a supplemental review

unnecessary. See Olmsted Falls, 292 F.3d at 274 (no

need for supplemental EIS where “there simply is not

significant new information, and the landscape is

unchanged”). NEPA requires a “hard look,” but it does

not require “a new look every time [an agency] takes a

step that implements a previously-studied action.”

Mayo, 875 F.3d at 14–15 (emphasis in original). The

unique facts in Lemon do not compel a supplemental

EIS in this case.

This also follows other courts’ decisions to upheld

agency discretion in this area. See, e.g., Nat’l Comm.

for the New River v. FERC, 373 F.3d 1323, 1330 (D.C.

Cir. 2004) (“[T]he Commission’s determination that

66a

the new information was not significant enough to

warrant preparation of a supplement to the [Draft

EIS] is entitled to deference.”); Friends of Marolt Park

v. U.S. Dep’t of Transp., 382 F.3d 1088, 1097 (10th Cir.

2004) (“The Agency has determined a supplemental

EIS is not required where the ROD selects an option

not identified as the preferred option in the final EIS,

as long as the selected option was fully evaluated. . . .

[W]e conclude that the Agency’s failure to issue a

supplemental EIS in this case was not arbitrary or

capricious.”). Stand Up’s insistence on another EIS

demands too much of the Department on this record.

The Department acted well within its discretion, and

the Court cannot say that the EIS was so deficient as

to “undermine informed decisionmaking.” See Sierra

Club, 867 F.3d at 1368.

3. The Timing of the Decision Does Not

Show Impermissible Predetermination

Stand Up claims that the Department’s rush to a

decision before the 2017 presidential inauguration is

evidence that it had “predetermined its outcome,” and

that it raced to a decision “apparently because it

assumed that the incoming Administration would be

less friendly.” Pls.’ Mot. for Summ. J. 38–39. The

Department’s dash to issue its decision may be

suspicious, but upon review of the record, the Court

finds that it complied with NEPA and the APA.

Stand Up’s argument to the contrary relies heavily

on North Carolina Alliance for Transportation Reform,

Inc. v. U.S. Department of Transportation, 151 F.

Supp. 2d 661 (M.D.N.C. 2001). In that case, a district

court inferred that the Department of Transportation

67a

acted in bad faith when it issued its ROD only one day

after the Final EIS. Id. at 676. The very quick

turnaround is similar here, where the Department

issued its ROD just two days after the close of

comments on the Final EIS. See Pls.’ Mot. for Summ.

J. 16. And that is arguably “alarming, especially in

light of the crawling pace at which administrative

agencies typically conduct their business.” See Alaska

v. U.S. Dep’t of Agric., 273 F. Supp. 3d 102, 118–19

(D.D.C. 2017).

But important differences also distinguish this

case from North Carolina Alliance. For one, the agency

in that case acknowledged that it received and left

unanswered “numerous comments” to the Final EIS

before issuing the ROD. N.C. Alliance, 151 F. Supp. 2d

at 676. And before the court’s review in that case, the

agency had already re-opened “the entire NEPA

process” in an implicit admission of a flawed process.

Id. Finally, the court’s inquiry was about an award of

attorney fees and expenses, not whether the

Department violated NEPA. Id. In all, the court found

that the agency “would not have issued the ROD so

rapidly had they undertaken a more deliberate

consideration of the environmental analysis.” Id.

While a two-day turnaround between the close of

public comments and issuance of the ROD is highly

unusual, that alone does not prove a NEPA violation.

Consider the principle in another case, Alaska v. U.S.

Department of Agriculture:

Alaska seems to want this Court to

presume that, because the USDA

conducted

such

far-reaching

68a

rulemaking in an extraordinarily short

time period, the USDA necessarily did

not satisfy NEPA’s goals of adequate

public disclosure and informed decisionmaking. Indeed, the fact that the USDA

issued a rule affecting a whopping 2

percent of all land in the United States in

less than 15 months is alarming,

especially in light of the crawling pace at

which administrative agencies typically

conduct their business. But upon review

of the record herein, I find that the USDA

complied with NEPA in conducting its

public comment and decisionmaking

processes.

273 F. Supp. 3d at 118–19 (emphasis in original).

So too here. Despite Stand Up’s claim that the

Department compressed a 15-month process into

40 hours, see Pls.’ Mot. for Summ. J. 40, 6 the extensive

administrative record shows that the Department

spent sufficient time and energy analyzing the many

contours of its acquisition decision. Not only that, but

the Department received only eleven letters during

the Final EIS comment period, and only four of them

on the final day for submission. AR24530; Fed. Defs.’

Cross-Motion for Summ. J. 41. It is certainly

reasonable to conclude that the Department addressed

the substantive concerns in those letters before

6 The 15-month calculation is a dubious one, anyway. See Fed.

Defs.’ Reply Mem. 18 n.9 (“Plaintiffs’ assertion that an agency

ROD should take fifteen months to issue is of their own

concoction.”).

69a

issuing its ROD. And although Stand Up points to

internal Department emails seeking “a very quick

review” and correspondence showing intent to “allow

land to be put into trust by January 19, 2017,” Stand

Up cites no unanswered public comment or evidence

that the Department’s decisionmaking process was

flawed. See id. at 41–42; AR5791, AR5627.

Time aside, an agency engages in impermissible

predetermination

when

“irreversibly

and

irretrievably commits itself to a plan of action that is

dependent upon the NEPA environmental analysis

producing a certain outcome.” Flaherty v. Bryson, 850

F. Supp. 2d 38, 70 (D.D.C. 2012) (citation omitted)

(emphasis in original). But the Department may work

toward a solution, even its preferred one. “Bias

towards a preferred outcome does not violate NEPA so

long as it does not prevent full and frank consideration

of environmental concerns.” Cmte. of 100 on Fed. City

v. Foxx, 87 F. Supp. 3d 191, 206 (D.D.C. 2015); see also

Envtl. Def. Fund, Inc. v. Corps of Engineers, 470 F.2d

289, 295 (8th Cir. 1972) (holding NEPA requires

agencies “to objectively evaluate their projects,” but

does not require “agency officials to be subjectively

impartial”). Concluding that a quick turnaround

proves a per se violation of NEPA is not only legally

incorrect, it is also illogical. The Department’s

response is instructive: If “two days is, as a matter of

law, too short to take a hard look under NEPA,” then

“it is unclear what the agency is supposed to do on

remand except wait longer. And if that is the case,

exactly how long should the agency wait?” Fed. Defs.’

Reply Mem. 18–19.

70a

Stand Up’s failure to marshal any evidence of bad

faith is not for lack of opportunity. In a previous ruling

and in light of the unusual sequencing of events here,

the Court directed the Department to provide Stand

Up with additional discovery and the Department’s

privilege log. See Order, May 30, 2018, ECF No. 63. 7

Yet this extraordinary discovery did not present any

new evidence of bad faith. See Pls.’ Mot. for Summ. J.

38–39. In this regard, it is notable that— despite being

almost three years into the new Administration—the

Department’s leaders have not made any effort to

repudiate or undermine the decisions made in this

case by their predecessors.

The lack of evidence of bad faith suggests another,

more plausible explanation for the rush: the outgoing

leadership team wanted to “clear the decks” of

unfinished business before their departure. While this

instinct might be motivated by a desire to “bind the

hands” of incoming political appointees, it can also

7 In the same Order, the Court also denied the part of Stand Up’s

motion seeking to supplement the administrative record. See

Order, May 30, 2018. Among other documents, Stand Up wanted

a March 6, 2017 SCWA memorandum added to the record, a

request they have renewed in a Motion for Reconsideration. See

Pls.’ Mot. to Supp. the Admin. Rec. and for Disc., ECF No. 57; Pls.’

Mot. for Recons., ECF No. 87. But as the Court noted, the

memorandum post-dates the Department’s decision and there

was no evidence that the Department had notice of the document

at the time. See Mem. Op., May 30, 2018 at 8, ECF No. 62. In its

request for reconsideration, Stand Up concedes that “the memo

was not before the Department during the decision-making

process.” Pls.’ Mot. for Recons. 4. Thus, for the same reasons

listed in the May 30, 2018 Memorandum Opinion, the Court will

deny Stand Up’s Motion for Reconsideration. See Mem. Op., May

30, 2018 at 8.

71a

spring from a sense of obligation and good governance

to finish projects that are nearly complete while the

decisionmakers who are most knowledgeable about

the project are still in office. Stand Up has not

provided any reason to believe that such a motivation

would be invalid.

And that is not all. Stand Up’s insinuations of

impropriety run up against a strong “presumption of

regularity” afforded to executive branch agencies. See

Overton Park, 401 U.S. at 415. Earlier this year, the

Supreme Court emphasized that reviewing courts

“may not reject an agency’s stated reasons for acting

simply because the agency might also have had other

unstated reasons.” New York, 139 S. Ct. at 2573. More

specifically, “a court may not set aside an agency’s

policymaking decision solely because it might have

been influenced by political considerations or

prompted by an Administration’s priorities. . . . Such

decisions are routinely informed by unstated

conside

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