Petition for Writ of Certiorari — Department of the Interior, et al., Petitioners v. Shoshone-Bannock Tribes of the Fort Hall Reservation, et al.

Supreme Court briefJul 20, 2026

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No. xxxxxx

In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

PETITIONERS

v.

SHOSHONE-BANNOCK TRIBES OF THE FORT HALL

RESERVATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

D. JOHN SAUER

Solicitor General

Counsel of Record

ADAM R.F. GUSTAFSON

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ROBERT N. STANDER

Deputy Assistant

Attorney General

AARON Z. ROPER

Assistant to the

Solicitor General

ROBERT J. LUNDMAN

DANIEL HALAINEN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

With narrow exceptions that are inapplicable here,

the Federal Land Policy and Management Act of 1976

(FLPMA), 43 U.S.C. 1701 et seq., authorizes the sale or

exchange of “any land and interest in land owned by the

United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the

United States acquired ownership,” 43 U.S.C. 1702(e);

see 43 U.S.C. 1713(a), 1716(a). The question presented

is as follows:

Whether the United States may invoke FLPMA to

dispose of land that the government previously acquired from an Indian tribe, when the statute that approved the land’s earlier purchase stated that the land

“shall be opened to settlement by the proclamation of

the President, and shall be subject to disposal under the

homestead, town-site, stone and timber, and mining

laws of the United States only.” Act of June 6, 1900, ch.

813, § 5, 31 Stat. 676.

(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are the

United States Department of the Interior; the United

States Bureau of Land Management; and Lanny E. Erdos, the senior official performing the delegable functions and duties of the Assistant Secretary for Land and

Minerals Management.*

Respondents are the Shoshone-Bannock Tribes of

the Fort Hall Reservation (plaintiff-appellee below) and

the J.R. Simplot Company (defendant-intervenorappellant below).

* Mr. Erdos is automatically substituted for his predecessors in

office. See Sup. Ct. R. 35.3.

(II)

RELATED PROCEEDINGS

United States District Court (D. Idaho):

Shoshone-Bannock Tribes of the Fort Hall Reservation v. United States Dep’t of the Interior, No. 10cv-4 (May 3, 2011)

Shoshone-Bannock Tribes of the Fort Hall Reservation v. Daniel-Davis, No. 20-cv-553 (Mar. 31,

2023)

United States Court of Appeals (9th Cir.):

Shoshone-Bannock Tribes of the Fort Hall Reservation v. United States Dep’t of the Interior, No. 1235181 (Sept. 17, 2012) (dismissing appeal)

Shoshone-Bannock Tribes of the Fort Hall Reservation v. United States Dep’t of the Interior, No. 2380058 (Aug. 16, 2023) (granting permission to appeal)

Shoshone-Bannock Tribes of the Fort Hall Reservation v. J.R. Simplot Co., No. 23-80059 (Aug. 16,

2023) (granting permission to appeal)

Shoshone-Bannock Tribes of the Fort Hall Reservation v. United States Dep’t of the Interior, No. 2335543 (Apr. 21, 2026) (denying rehearing)

Shoshone-Bannock Tribes of the Fort Hall Reservation v. J.R. Simplot Co., No. 23-35544 (Apr. 21,

2026) (denying rehearing)

(III)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

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

Statutory provisions involved ...................................................... 2

Introduction................................................................................... 2

Statement ...................................................................................... 5

A. The Federal Land Policy and Management Act ............ 5

B. Factual background .......................................................... 6

Reasons for granting the petition ............................................. 12

A. The decision below is incorrect ...................................... 13

B. The decision below carries significant consequences

for federal land management and warrants this

Court’s review .................................................................. 23

Conclusion ................................................................................... 30

Appendix A — Court of appeals opinion (Aug. 22, 2025)...... 1a

Appendix B — Court of appeals order denying rehearing

en banc (Apr. 21, 2026) ............................ 68a

Appendix C — District court memorandum decision and

order granting summary judgment

(Mar. 31, 2023) ........................................ 105a

Appendix D — District court memorandum decision and

order granting certification

(June 30, 2023) ........................................ 149a

Appendix E — Statutory provisions................................... 153a

TABLE OF AUTHORITIES

Cases:

Andrus v. Idaho, 445 U.S. 715 (1980) ............................ 23, 26

Andrus v. Utah, 446 U.S. 500 (1980) ............................. 23, 26

Exxon Mobil Corp. v. Corporación CIMEX, S.A.

(Cuba), No. 24-699 (June 23, 2026) ............................. 15, 19

Lujan v. National Wildlife Fed’n,

497 U.S. 871 (1990)............................................................ 2, 5

(V)

VI

Cases—Continued:

Page

Posadas v. National City Bank,

296 U.S. 497 (1936).............................................................. 19

Public Lands Council v. Babbitt,

529 U.S. 728 (2000).............................................................. 23

Robertson v. Seattle Audubon Soc’y,

503 U.S. 429 (1992).............................................................. 23

Seven Cnty. Infrastructure Coal. v. Eagle County,

605 U.S. 168 (2025).............................................................. 29

Slack Techs., LLC v. Pirani, 598 U.S. 759 (2023) .............. 15

Solem v. Bartlett, 465 U.S. 463 (1984) ................................. 14

Sturgeon v. Frost:

577 U.S. 424 (2016) .......................................................... 23

587 U.S. 28 (2019) ............................................................ 23

TRW Inc. v. Andrews, 534 U.S. 19 (2001) ........................... 18

United States v. Coleman, 390 U.S. 599 (1968) .................. 23

United States v. General Motors Corp.,

323 U.S. 373 (1945).............................................................. 29

United States v. Locke, 471 U.S. 85 (1985) ......................... 27

United States Forest Serv. v. Cowpasture River

Pres. Ass’n, 590 U.S. 604 (2020) ........................................ 23

Watson v. Republican Nat’l Comm.,

No. 24-1260 (June 29, 2026) ............................................... 17

Watt v. Western Nuclear, Inc., 462 U.S. 36 (1983) ............ 23

Statutes:

Act of July 27, 1868, ch. 248, § 6, 15 Stat. 223 ..................... 25

Act of May 15, 1872, ch. 165, 17 Stat. 120 ............................ 25

Act of Mar. 3, 1873, ch. 279, 17 Stat. 607 ............................. 17

Act of Mar. 3, 1873, ch. 333, § 1, 17 Stat. 634 ...................... 25

Act of Mar. 3, 1877, ch. 107, 19 Stat. 377 ............................... 9

Act of June 3, 1878, ch. 150, § 1, 20 Stat. 88 ........................ 26

Act of Apr. 30, 1888, ch. 206, § 21, 25 Stat. 102 ................... 25

VII

Statutes—Continued:

Page

Act of Mar. 2, 1889, ch. 412, § 13, 25 Stat. 1005 .................. 25

Act of Mar. 3, 1893, ch. 200, § 2, 27 Stat. 555 ...................... 25

Act of Mar. 3, 1893, ch. 209, 27 Stat. 612:

§ 10, 27 Stat. 642 ........................................................ 25

§ 13, 27 Stat. 644 ........................................................ 25

Act of June 6, 1900, ch. 813, 31 Stat. 672:

§ 1:

31 Stat. 673 ....................................................... 20, 154a

31 Stat. 674 ................................................... 8, 20, 154a

§ 4, 31 Stat. 675 .................................................. 8, 14, 155a

§ 5, 31 Stat. 676 ..........................3, 8, 9, 14-16, 20, 22, 156a

Act of Apr. 23, 1904, ch. 1495, § 9, 33 Stat. 304 ................... 25

Act of Mar. 22, 1906, ch. 1126, § 4, 34 Stat. 81 .................... 25

Act of Mar. 2, 1907, ch. 2536, § 2, 34 Stat. 1230 .................. 24

Act of May 29, 1908, ch. 217, § 2, 35 Stat. 458-459.............. 25

Act of May 29, 1908,, ch. 218, § 2, 35 Stat. 461 .................... 24

Act of May 27, 1910, ch. 257, § 2, 36 Stat. 441 ..................... 24

Act of Feb. 14, 1913, ch. 54, § 2, 37 Stat. 676 ...................... 24

Act of May 27, 1920, ch. 209, § 1, 41 Stat. 628 ..................... 24

Act of May 19, 1926, ch. 337, 44 Stat. 566 ........................ 9, 21

Act of May 4, 1932, ch. 164, 47 Stat. 146 .......................... 9, 21

Act of Aug. 1, 1955, ch. 448, 69 Stat. 434 ............................... 8

Commerce, Justice, Science; Energy and Water

Development; and Interior and Environment

Appropriations Act, 2026, Pub. L. No. 119-74,

§ 404, 140 Stat. 157 ............................................................... 8

Department of the Interior and Related Agencies

Appropriations, 1995, Pub. L. No. 103-332, § 112,

108 Stat. 2519 ........................................................................ 8

VIII

Statutes—Continued:

Page

Federal Land Policy and Management Act of 1976,

Pub. L. No. 94-579, 90 Stat. 2744 (43 U.S.C. 1701

et seq.)..................................................................................... 2

§ 701(f ), 90 Stat. 2786 .................................................. 6, 19

§ 702, 90 Stat. 2787-2789 ................................................... 8

§§ 702-703, 90 Stat. 2787-2791 .......................................... 6

§ 703(a), 90 Stat. 2789-2790 .......................................... 8, 9

43 U.S.C. 1701(a)(1) ........................................................... 6

43 U.S.C. 1701(a)(10) ..................................... 2, 4, 5, 19, 21

43 U.S.C. 1702(e) ............................ 2, 4, 5, 13, 19, 22, 153a

43 U.S.C. 1702(e)(1) ................................................. 5, 153a

43 U.S.C. 1702(e)(2) ........................................... 5, 13, 153a

43 U.S.C. 1713(a) ............................................................... 6

43 U.S.C. 1713(a)(3) ........................................................... 6

43 U.S.C. 1713(d) ............................................................... 6

43 U.S.C. 1716(a) ............................................... 6, 13, 153a

43 U.S.C. 1716(b) ............................................................... 6

General Mining Act of 1872, ch. 152, 17 Stat. 91 .................. 8

Homestead Act of 1862, ch. 75, 12 Stat. 392.......................... 5

§ 1, 12 Stat. 392 ................................................................ 26

§§ 1-2, 12 Stat. 392 ............................................................. 5

National Environmental Policy Act of 1969,

42 U.S.C. 4321 et seq. ............................................................ 7

Timber and Stone Act of 1878, ch. 151, 20 Stat. 89 .............. 5

§ 1, 20 Stat. 89 .................................................................. 26

§§ 1-2, 20 Stat. 89 ............................................................... 5

Rev. Stat. §§ 2304-2305 (1878) .............................................. 16

Rev. Stat. § 2455 (1878) ....................................................... 5, 9

28 U.S.C. 1292(b) ................................................................... 10

43 U.S.C. 321 et seq.................................................................. 9

IX

Miscellaneous:

Page

14 A Compilation of the Messages and Papers of

Presidents (1917) ................................................................ 14

75 Cong. Rec. 3034 (1932) ..................................................... 21

Cong. Research Serv., Federal Land Ownership

(Feb. 21, 2020), https://www.congress.gov/crsproduct/R42346?hl=R42346&s=2&r=1.......................... 23

Henry N. Copp, The American Settler’s Guide:

A Popular Exposition of the Public Land System

of the United States of America

(24th ed. 1904) ..................................................................... 21

Thomas Donaldson, The Public Domain:

Its History, with Statistics (2d ed. 1884) ......................... 21

Robert L. Glicksman, Public Natural Resources

Law (2d ed. Feb. 2026 update) ............................................ 9

Major North American Fertilizer Production and

Rail Network, Argus Media (2023),

https://perma.cc/N88V-E7DU ............................................. 6

John O’Connell, McDonald’s Spent Almost $136

Million on Idaho Ag Products Last Year,

Idaho Farm Bureau Fed’n (Aug. 26, 2019),

https://perma.cc/3FC2-AE98............................................... 6

S. Rep. No. 60, 56th Cong., 1st Sess. (1900)........................ 21

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ..................................................... 17, 18

U.S. Dep’t of the Interior, Bureau of Land Mgmt.,

Public Land Statistics 2024 (June 2025),

https://perma.cc/5YQD-E3PH .......................................... 27

In the Supreme Court of the United States

No. ______

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

PETITIONERS

v.

SHOSHONE-BANNOCK TRIBES OF THE FORT HALL

RESERVATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The order of the court of appeals denying rehearing

(App., infra, 68a-104a) is reported at 173 F.4th 1012.

The opinion of the court of appeals (App., infra, 1a-67a)

is reported at 153 F.4th 748. The opinion of the district

court certifying the appeal (App., infra, 149a-152a) is

available at 2023 WL 5345102. The opinion of the district court granting summary judgment (App., infra,

105a-148a) is available at 2023 WL 2744123.

JURISDICTION

The judgment of the court of appeals was entered on

August 22, 2025. Petitions for rehearing were denied on

April 21, 2026 (App., infra, 68a-69a). The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix. App., infra, 153a-157a.

INTRODUCTION

Before 1976, the federal government’s authority to

manage and dispose of its own lands was governed by a

“chaotic” patchwork of overlapping authorities. Lujan

v. National Wildlife Fed’n, 497 U.S. 871, 876 (1990). In

the Federal Land Policy and Management Act of 1976

(FLPMA), Pub. L. No. 94-579, 90 Stat. 2744 (43 U.S.C.

1701 et seq.), Congress replaced that disorganized regime with new, “uniform procedures for any disposal of

public land,” 43 U.S.C. 1701(a)(10). The decision below,

which construed a pre-FLPMA statute to bar a land exchange that FLPMA unambiguously authorizes, threatens a return to the pre-FLPMA chaos.

This case involves a parcel in southeastern Idaho

that, since 2007, the government has sought to transfer

to the J.R. Simplot Company. Simplot plans to use the

land to continue operating a fertilizer plant of considerable importance to Idaho’s economy and the Nation’s

food supply. In exchange, Simplot offered the United

States conservation and recreation lands of equal value.

The court of appeals agreed that FLPMA’s text

“clear[ly]” authorizes that exchange. App., infra, 15a.

FLPMA applies to all “ ‘public lands,’ ” a term that encompasses (with limited exceptions that are inapplicable here) “any land and interest in land owned by the

United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the

United States acquired ownership.” 43 U.S.C. 1702(e).

The parcel here undisputedly met that definition. Until

the transfer, it was land owned by the United States,

3

within a State, administered by the Bureau of Land

Management. FLPMA therefore authorized the government to exchange that land.

The court of appeals nevertheless invalidated the exchange, concluding that the government’s authority to alienate the land remained subject to a statutory restriction

enacted 126 years ago, when the government purchased

the land from respondent, the Shoshone-Bannock Tribes

of the Fort Hall Reservation (the Tribes). The Act approving the purchase stated that the land would be

opened to settlement “under the homestead, town-site,

stone and timber, and mining laws of the United States

only.” Act of June 6, 1900 (1900 Act), ch. 813, § 5, 31 Stat.

676. The court of appeals read the word “only” in that

Act to bar the government from invoking later-enacted

authorities (like FLPMA) as independent bases for disposing of the relevant lands, unless and until Congress

amends or repeals the 1900 Act. Because the homestead,

town-site, stone and timber, and mining laws referenced

in the 1900 Act have all been repealed or are otherwise

defunct, the government has no way to complete the exchange, notwithstanding FLPMA’s clear authorization.

The court of appeals’ decision is incorrect. The 1900

Act and FLPMA provide “two independent ways to dispose of the land involved in the exchange.” App., infra,

42a (Bumatay, J., dissenting) (emphasis omitted). Under the 1900 Act, the government could have offered the

land to settlers only under the homestead, town-site,

stone and timber, and mining laws. But in FLPMA,

Congress granted new disposal authority subject to new

requirements. The two statutes sit alongside each other

and can operate harmoniously; the 1900 Act does not

“prospectively preempt” FLPMA. Id. at 77a (Tung, J.,

dissenting from the denial of rehearing en banc). Even

4

if the government were limited to using the authorities

listed in the 1900 Act, the exchange would be lawful because FLPMA is the modern version of those authorities.

The court of appeals’ erroneous and disruptive holding warrants this Court’s review. The Statutes at Large

are littered with similar turn-of-the-century provisions

—at least 35 by the government’s count—that use similar language to authorize the disposal of specific tracts

only under specific, enumerated authorities. The Department of the Interior (Interior) estimates that more

than 4 million acres of land covered by those statutes—

an area larger than the State of Connecticut—remain under federal ownership. More than 2.4 million acres of

that land are in the Ninth Circuit. The decision below

arguably prevents the government from invoking

FLPMA as a source of authority to dispose of any tract

within that sizable acreage.

The decision below also needlessly complicates all

federal land disposals, destroying the uniformity that

Congress enacted FLPMA to provide. Instead of disposing of “any land * * * without regard to how the

United States acquired ownership,” 43 U.S.C 1702(e),

under “uniform procedures,” 43 U.S.C. 1701(a)(10), Interior must now comb through century-old land records

and statutes to identify potential restrictions that were

long thought to be inapplicable. The requirement to

conduct such inquiries and the inability to dispose of

some lands altogether will “severely hamper the federal

government’s ability to administer its lands” and freeze

“large portions of public land” “in frontier amber.”

App., infra, 95a, 97a (Tung, J., dissenting from the denial of rehearing en banc). This Court should grant certiorari to correct the Ninth Circuit’s error and prevent

that destabilizing result.

5

STATEMENT

A. The Federal Land Policy And Management Act

Before 1976, federal lands were governed by a “chaotic” patchwork of land-management authorities. Lujan

v. National Wildlife Fed’n, 497 U.S. 871, 876 (1990).

For example, the Homestead Act of 1862, ch. 75, 12 Stat.

392 (Homestead Act), allowed U.S. citizens over the age

of 21 to acquire 160 acres of land to live and farm by

working the land for five years. §§ 1-2, 12 Stat. 392.

Under the Timber and Stone Act of 1878, ch. 151, 20

Stat. 89 (Timber and Stone Act), citizens in California,

Oregon, Nevada, and Washington Territory could acquire 160 acres for at least $2.50 per acre by attesting

that the land was “unfit for cultivation, and valuable

chiefly for its timber and stone.” §§ 1-2, 20 Stat. 89. Another provision authorized the Commissioner of the

General Land Office to sell “isolated or disconnected

tracts” on 30 days’ notice when he deemed such sales

“proper.” Rev. Stat. § 2455 (1878).

In enacting FLPMA, Congress sought to replace

that patchwork of laws with “uniform procedures for

any disposal of public land.” 43 U.S.C. 1701(a)(10).

FLPMA broadly defines “ ‘public lands’ ” as “any land

and interest in land owned by the United States within

the several States and administered by the Secretary of

the Interior through the Bureau of Land Management,

without regard to how the United States acquired ownership.” 43 U.S.C. 1702(e). FLPMA contains only two

exceptions to that definition: (1) “lands located on the

Outer Continental Shelf,” and (2) “lands held for the

benefit of Indians, Aleuts, and Eskimos.” 43 U.S.C.

1702(e)(1) and (2).

While FLPMA states a general “policy” that “the

public lands be retained in Federal ownership,” it also

6

recognizes that the “disposal of a particular parcel” may

“serve the national interest.” 43 U.S.C. 1701(a)(1). Accordingly, FLPMA gives the Secretary various tools to

dispose of federal lands. The Secretary may sell federal

land for fair market value in certain circumstances, such

as when the land is not suitable for federal management

or when a sale would serve “important public objectives.” 43 U.S.C. 1713(a)(3); see 43 U.S.C. 1713(a) and

(d). And, relevant here, the Secretary may exchange

federal lands for non-federal lands of equal value when

the Secretary determines that an exchange would “well

serve[]” “the public interest.” 43 U.S.C. 1716(a); see 43

U.S.C. 1716(b).

While granting the government those new authorities, FLPMA repealed a raft of “laws relating to homesteading and small tracts,” “laws related to disposal,”

and other public-land laws. §§ 702-703, 90 Stat. 27872791 (capitalization omitted). FLPMA further provides

that “[n]othing in this Act shall be deemed to repeal any

existing law by implication.” § 701(f ), 90 Stat. 2786.

B. Factual Background

1. The J.R. Simplot Company (Simplot) is an Idahobased agricultural business and the principal supplier

of McDonald’s French fries. See John O’Connell,

McDonald’s Spent Almost $136 Million on Idaho Ag

Products Last Year, Idaho Farm Bureau Fed’n (Aug.

26, 2019), https://perma.cc/3FC2-AE98. Since 1944,

Simplot has also operated a phosphate-fertilizer plant,

called the Don Plant, near the city of Pocatello, Idaho,

and the Tribes’ reservation. 23-35543 C.A. E.R. 248-249.

The Don Plant produces more than one million tons of

products annually and is one of the largest phosphatefertilizer plants in America. Id. at 249; Major North

7

American Fertilizer Production and Rail Network, Argus Media (2023), https://perma.cc/N88V-E7DU.

Phosphate-fertilizer production generates a toxic byproduct called phosphogypsum, which generally must

be stored onsite. See App., infra, 107a, 109a. The Don

Plant is projected to run out of storage space by 2031,

which would force the plant’s closure. Id. at 4a-5a.

Since 1994, Simplot has sought to acquire around 700

acres of adjacent federal land that would extend the

plant’s life until 2085. Id. at 4a; id. at 36a (Bumatay, J.,

dissenting).

In 2007, Interior approved under FLPMA a transaction that would give Simplot the adjacent federal land

in exchange for Simplot-owned land elsewhere. 2011

WL 1743656, at *5. The Tribes sued in the United

States District Court for the District of Idaho, alleging

that the land exchange violated FLPMA; the National

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

4321 et seq.; and the federal government’s trust responsibilities to the Tribes. 10-cv-4 Compl. ¶¶ 43-60. The

court granted summary judgment to the Tribes on their

NEPA claim and blocked the exchange. 2011 WL

1743656, at *12.

2. In August 2020, having conducted further environmental analysis, Interior approved a new land exchange with Simplot. App., infra, 110a. The Tribes again

sued, reprising their arguments that the exchange violated FLPMA, NEPA, and the government’s trust responsibilities. 20-cv-553 Compl. ¶¶ 92-119.

In addition to those arguments, the Tribes asserted

a new claim: that because of the circumstances under

which the United States had acquired the federal land

from the Tribes in 1900, the government could not invoke FLPMA to dispose of the land today. 20-cv-553

8

Compl. ¶¶ 84-91. The cession agreement approved by

the 1900 Act did not preclude the United States from

disposing of the relevant land; it granted usufructuary

rights to the Tribes for hunting, grazing, fishing, and

logging only for so long as the land “remain[ed] part of

the public domain.” 1900 Act § 1, 31 Stat. 674 (reproducing agreement). The Tribes argued, however, that

the 1900 Act approving the agreement effectively bars

the government from invoking FLPMA as a source of

authority to effectuate the land exchange. 20-cv-553

Compl. ¶ 88.

The 1900 Act allowed Indians to request the allotment of land that they occupied at that time. § 4, 31

Stat. 675. The Act further provided that, “on the completion of the allotments * * * , the residue of said

ceded lands shall be opened to settlement by the proclamation of the President, and shall be subject to disposal under the homestead, town-site, stone and timber,

and mining laws of the United States only.” § 5, 31 Stat.

676. That provision, the Tribes contended, meant that

the United States could not rely on FLPMA to dispose

of the ceded lands, but instead were limited to the homestead, town-site, stone and timber, or mining laws. 20cv-553 D. Ct. Doc. 37-1, at 13-14 (Apr. 29, 2022). Because those laws have all been repealed or are otherwise

defunct, that theory would effectively bar the land from

ever being sold absent a new Act of Congress. See App.,

infra, 6a & n.6, 114a. 1

The stone and timber laws were repealed in 1955. Act of Aug. 1,

1955, ch. 448, 69 Stat. 434. FLPMA repealed the homestead and

town-site laws. See FLPMA §§ 702, 703(a), 90 Stat. 2787-2790. The

General Mining Act of 1872, ch. 152, 17 Stat. 91, has not been repealed, but since 1994 Congress has barred new land patents under

1

9

The Tribes did not seek preliminary relief, and the

land exchange was completed in December 2020. App.,

infra, 6a. Simplot intervened to defend the exchange.

Ibid.

3. The district court granted summary judgment to

the Tribes in relevant part. App., infra, 105a-148a. The

court agreed with the Tribes that the 1900 Act’s statement that the ceded lands “ ‘shall be subject to disposal

under the homestead, townsite, stone and timber, and

mining laws of the United States only’ ” means that

those laws, not FLPMA, provide “the exclusive means

of lawful disposal.” Id. at 114a (quoting 1900 Act § 5, 31

Stat. 676). The court acknowledged that, because those

laws are no longer operative, the practical effect of its

holding was that “the federal government does not currently have a viable method for disposing of the ceded

lands.” Ibid.

As an alternative ground for its decision, the district

court held that Interior had not adequately weighed the

public interest or adequately appraised the land under

FLPMA, and that Interior’s analysis of some environthat Act. See, e.g., Pub. L. No. 103-332, § 112, 108 Stat. 2519; Pub.

L. No. 119-74, § 404, 140 Stat. 157.

Congress later authorized the disposal of the ceded Fort Hall

lands using Revised Statutes § 2455 (1878), which governed the disposal of isolated tracts of land, and the Act of March 3, 1877, ch. 107,

19 Stat. 377, which governed the sale of desert lands. See Act of

May 19, 1926, ch. 337, 44 Stat. 566; Act of May 4, 1932, ch. 164, 47

Stat. 146. FLPMA repealed both Section 2455 and the 1926 statute

that had extended Section 2455 to the ceded lands. § 703(a), 90 Stat.

2790. The Act of March 3, 1877, remains on the books, see 43 U.S.C.

321 et seq., but it is “virtually a dead letter” given the small quantity

of remaining desert land subject to its provisions, Robert L. Glicksman, Public Natural Resources Law § 6:21 (2d ed. Feb. 2026 update).

10

mental impacts was deficient under NEPA. App., infra,

119a-130a, 132a-135a. The court ordered further briefing on remedy but suggested that “it seems the only

remedy” is “unwinding the deal.” Id. at 118a; see id. at

148a.

On Simplot’s motion, the district court certified its

decision for immediate appeal under 28 U.S.C. 1292(b),

and the court of appeals granted permission to appeal.

App., infra, 7a-8a.

4. A divided panel of the court of appeals affirmed.

App., infra, 1a-67a. The court recognized that, viewed

in isolation, FLPMA “clear[ly]” authorizes disposal of

the ceded Fort Hall lands. Id. at 15a. The court held,

however, that the word “ ‘only’ ” in the 1900 Act makes

the laws listed in that Act the “exclusive” means of disposal. Id. at 8a. To the extent the statutes were ambiguous, the court favored the reading that limited the government’s disposal authority, based on a purported

“clear statement canon” that “any federal statute that

abrogates a Tribe’s treaty rights must clearly express

Congress’s intent to do so.” Id. at 27a.

The court of appeals concluded that the 1900 Act precluded the government from using FLPMA to dispose of

the land because FLPMA “is a general land-management

law,” “not a homestead, townsite, stone and timber, or

mining law.” App., infra, 9a. The court purported to

limit its holding to “this particular exchange,” without

deciding whether a “land disposal for purposes related

to the laws listed in the 1900 Act” would be permissible.

Id. at 30a.

Judge Bumatay dissented. App., infra, 34a-67a. In

his view, the 1900 Act and FLPMA provide “complementary grants of authority” to dispose of the ceded

lands. Id. at 42a. He viewed the word “only” in the 1900

11

Act as directing that the listed laws are the “only” ways

of disposing of covered lands under that Act. Id. at 42a43a. He concluded, however, that in enacting the 1900

Act, Congress did not “permanently encumber the land

or disable the federal government from disposing of it

under other congressional grants of authority.” Id. at

42a. Judge Bumatay stated that the majority’s contrary

view produced a needless conflict between the two statutes and would “permanently bar[] any disposal of the

ceded Fort Hall lands under current law.” Id. at 41a;

see id at 45a-46a. Judge Bumatay also explained why

the district court’s alternative rationales for invalidating the exchange (which the panel majority had not addressed) lacked merit. Id. at 58a-67a.

5. The court of appeals denied petitions for rehearing en banc filed by the government and by Simplot.

Seven judges dissented from the denial of en banc review. App., infra, 68a-104a.

In his dissent, Judge Collins explained that the 1900

Act’s exclusivity had been “vitiated by subsequent statutes,” including a 1926 law that had extended to the

ceded Fort Hall lands a pre-existing statute that authorized the government to dispose of isolated tracts.

App., infra, 70a-71a; see p. 8 n.1, supra. Judge Collins

viewed FLPMA’s express repeal and replacement of

that 1926 statute as demonstrating Congress’s intent to

apply FLPMA to the ceded lands. App., infra, 71a-72a.

Judge Tung, joined by Judges Callahan, Bennett,

Ryan Nelson, Bumatay, and VanDyke, also dissented.

App., infra, 75a-98a. Judge Tung expressed the view

that the panel majority had erred in perceiving a conflict between FLPMA and the 1900 Act’s complementary grants of authority, “in violation of basic rules of

statutory interpretation.” Id. at 75a. He identified 22

12

other statutes with similar phrasing to which the panel’s

reasoning would seemingly apply. Id. at 95a-97a &

nn.3-4. Judge Tung warned that the panel’s decision

would “severely hamper the federal government’s ability to administer its lands” and “effectively freeze the

sale or exchange of large portions of public land

throughout this circuit and beyond.” Id. at 79a, 95a.

Judge Friedland and District Judge Kennelly (the

two judges in the panel majority) wrote a statement responding to Judge Tung, App., infra, 101a-104a, to

which Judge Tung responded with another statement,

id. at 99a-100a.

REASONS FOR GRANTING THE PETITION

The court of appeals erred in reading the 1900 Act to

supersede FLPMA and to maintain in effect the sort of

chaotic land-management regime that FLPMA was intended to replace. FLPMA and the 1900 Act provide

“complementary grants of authority empowering the

federal government to dispose of the land.” App., infra,

45a-46a (Bumatay, J., dissenting). Properly construed,

the two laws are not at war with each other. The logic

of the decision below threatens the government’s ability

to dispose of more than 4 million acres of federal land

nationwide, including 2.4 million acres in the Ninth Circuit. And even for parcels whose disposal is ultimately

determined to be unrestricted, the decision below imposes significant operational burdens that the government must bear before conducting any sale or exchange

in the Ninth Circuit—where the vast majority of federal

land is located. This Court should grant certiorari and

correct the court of appeals’ error.

13

A. The Decision Below Is Incorrect

1. As the court of appeals recognized, FLPMA’s text

“clear[ly]” authorizes the government to dispose of the

ceded Fort Hall lands. App., infra, 15a. With two narrow exceptions that are inapplicable here, FLPMA defines the term “ ‘public lands’ ” to mean “any land and

interest in land owned by the United States within the

several States and administered by the Secretary of the

Interior through the Bureau of Land Management,

without regard to how the United States acquired ownership.” 43 U.S.C. 1702(e). FLPMA authorizes the Secretary to “dispose[] of ” such “public land” “by exchange”

when he “determines that the public interest will be well

served by making that exchange.” 43 U.S.C. 1716(a).

Those provisions unambiguously authorized the land

exchange at issue here. Until the transfer, the ceded

Fort Hall lands were owned by the United States; they

are within the State of Idaho; and they were “managed

by the Bureau of Land Management.” 20-cv-553 Compl.

¶ 1. Although those lands previously belonged to the

Tribes, FLPMA applies “without regard to how the

United States acquired ownership.” 43 U.S.C. 1702(e).

The lands therefore met the statutory definition of

“public lands” and were subject to disposal under

FLPMA, including disposal through an exchange for

other land.2

2. The court of appeals held that the land exchange

was nonetheless barred by the 1900 Act. That holding

is incorrect.

The Tribes have not argued that the ceded lands fall within

FLPMA’s exception for “lands held for the benefit of Indians,” 43

U.S.C. 1702(e)(2), presumably because the Tribes previously ceded

the lands to the United States outright. See App., infra, 6a n.5.

2

14

a. The 1900 Act does not restrict the government’s

authority to dispose of land under FLPMA. It initially

granted disposal authority by creating a framework for

transferring the land under the relevant then-existing

laws.

The 1900 Act was part of “a series of surplus land

Acts” that Congress passed “at the turn of the century

to force Indians onto individual allotments carved out of

reservations and to open up unallotted lands for nonIndian settlement.” Solem v. Bartlett, 465 U.S. 463, 467

(1984). Accordingly, under the 1900 Act, the Commissioner of Indian Affairs would first offer to allot the land

to Indians living there. § 4, 31 Stat. 675. “[O]n the completion of the allotments,” the remaining lands would

“be opened to settlement by the proclamation of the

President, and * * * subject to disposal under the

homestead, town-site, stone and timber, and mining

laws of the United States only.” § 5, 31 Stat. 676. The

Act thus established an orderly process for disposing of

the ceded lands: allotments to resident Indians followed

by a public offering under the listed laws.

The court of appeals read the word “ ‘only’ ” in the

1900 Act to mean that the listed laws provide the “exclusive” means of disposing of the ceded lands. App.,

infra, 8a. The court was correct that the listed laws

were and are the exclusive means of disposal under the

1900 Act. When President Theodore Roosevelt initially

proclaimed the lands open to settlement, he could not

have invoked the laws governing the disposal of, say,

desert lands; he had to use the specific laws that the

1900 Act referenced. See 14 A Compilation of the Messages and Papers of Presidents 6688 (1917) (President

Roosevelt’s 1902 proclamation opening the ceded lands

“to settlement and entry under the terms of and subject

15

to all the conditions, limitations, reservations, and restrictions” in the 1900 Act). The word “ ‘only’ ” in the

1900 Act thus is not “superfluous” as the court of appeals feared. App., infra, 11a. Together with the list of

pre-existing laws that the 1900 Act designated as available sources of disposal authority, that word meaningfully constrained the government’s authority under the

1900 Act.

It does not follow, however, that the 1900 Congress

intended to restrict the government’s ability to invoke

subsequent, generally applicable laws that by their

terms authorize disposal of the relevant lands. “[O]ne

Congress cannot bind another.” Exxon Mobil Corp. v.

Corporación CIMEX, S.A. (Cuba), No. 24-699 (June 23,

2026), slip op. 7. “It is inconceivable that Congress

would have sought to trap th[e] lands in frontier amber”

rather than simply offering an initial path for their disposal. App., infra, 97a (Tung, J., dissenting from the

denial of rehearing en banc). Yet the court of appeals’

reading assumes that the 1900 Congress tried to do precisely that: prevent future Congresses from adding new

disposal authorities without expressly amending the

1900 Act.

Several textual and contextual clues reinforce the

more limited reading of the statutory list and the word

“only” that the dissenting judges below endorsed. To

start, Congress used the definite article “the” to refer

to “the homestead, town-site, stone and timber, and mining laws.” 1900 Act § 5, 31 Stat. 676 (emphasis added).

That wording suggests that Congress had “particular”

laws in mind. Slack Techs., LLC v. Pirani, 598 U.S. 759,

767 (2023). And the only specific laws that Congress

might have contemplated in 1900 were those already on

the books. The 1900 Act’s use of the definite article thus

16

reinforces the natural inference that Congress was not

attempting to restrict the reach of future statutes but

was simply identifying the pre-existing laws that could

be invoked to dispose of the ceded lands.

Congress also specified in meticulous detail how the

initial offering would be conducted. Grazing lands would

cost $1.25 per acre, agricultural lands $2.50 per acre,

and lands irrigated by the Idaho Canal $10 per acre.

1900 Act § 5, 31 Stat. 676. All purchasers would make a

20% down payment. Ibid. Lands in the 16th and 36th

sections would be set aside for Idaho’s common schools.

Ibid. Lands within five miles of Pocatello would be sold

at a public auction where the starting bid would be $10

per acre. Ibid. Union Civil War veterans would get

preferential treatment with respect to the timing of

their entries, but not with respect to price. Ibid.; see

Rev. Stat. §§ 2304-2305 (1878). Those provisions all signal that Congress was focused on the initial disposal of

the land. Set prices, Civil War preferences, and the like

would make little sense in a statute that Congress intended to restrict the Executive Branch’s authority

more than a century later.

The pre-existing land-disposal statutes referenced in

the 1900 Act “required proof that the proposed settler

would in fact live on the land or put it to productive use

before a land patent would issue.” App., infra, 84a

(Tung, J., dissenting from the denial of rehearing en

banc). By including the phrase “under the homestead,

town-site, stone and timber, and mining laws of the

United States only” in the 1900 Act, § 5, 31 Stat. 676,

Congress made such proof a precondition to sales of the

ceded Fort Hall lands. If that phrase had been omitted,

by contrast, the 1900 Act might well have been understood to confer freestanding disposal authority, subject

17

only to the requirements (regarding, e.g., mandatory

down payments and preferences for Union Civil War

veterans) imposed specifically by the Act, thereby allowing “disposal of [the ceded] lands to speculators and

squatters who would not advance the Act’s purpose.”

App., infra, 84a (Tung, J., dissenting from the denial of

rehearing en banc). Inclusion of that phrase also ensured that the government could not sell ceded lands

under (for example) the then-existing statute that authorized sales of federal coal lands, see Act of Mar. 3,

1873, ch. 279, 17 Stat. 607, unless and until Congress determined that coal was present on the lands and authorized sales under that statute. The phrase “under the

homestead, town-site, stone and timber, and mining

laws of the United States only” in the 1900 Act therefore

imposed significant limits on the government’s authority to dispose of the ceded lands, even if that phrase is

read to refer solely to pre-existing laws.

b. The court of appeals devoted much of its opinion

to analyzing whether the 1900 Act or FLPMA should

take precedence, taking as a given that the two statutes

are in conflict. See App., infra, 15a-25a. But “there can

be no justification for needlessly rendering provisions

in conflict if they can be interpreted harmoniously.”

Antonin Scalia & Bryan A. Garner, Reading Law 180

(2012) (Reading Law); see Watson v. Republican Nat’l

Comm., No. 24-1260 (June 29, 2026), slip op. 15 n.8 (noting that an ambiguous earlier provision must be read in

a way that “fits most logically and comfortably into the

body of both previously and subsequently enacted law”)

(citation omitted).

Here there is an obvious way to harmonize the 1900

Act and FLPMA: Each confers a “separate and independent grant[] of authority on the federal govern-

18

ment.” App., infra, 46a (Bumatay, J., dissenting).

When the government sought to dispose of land under

the 1900 Act, it was required to comply with the 1900

Act’s conditions; when it seeks to dispose of land under

FLPMA, it must comply with FLPMA’s requirements.

See id. at 77a-78a (Tung, J., dissenting from the denial

of rehearing en banc). “Neither statute displaces the

other.” Id. at 87a.

The court of appeals believed that it had “satisf[ied]

[its] duty to harmonize statutes by giving effect to the

1900 Act’s specific restrictions” with respect to the

ceded Fort Hall lands, while treating FLPMA as governing conveyances of “other lands.” App., infra, 24a.

But that is not harmonizing the two statutes. Although

FLPMA contains two explicit exceptions to its broad

definition of “public lands,” see p. 5, supra, neither exception applies to the ceded lands here. “Where Congress explicitly enumerates certain exceptions,” courts

have no license to imply “additional exceptions” absent

“evidence of a contrary legislative intent.” TRW Inc. v.

Andrews, 534 U.S. 19, 28 (2001) (citation omitted). But

the effect of the court of appeals’ decision is to create an

additional (Fort Hall-specific) exception to the scope of

FLPMA’s geographic coverage, on top of the two that

Congress enacted. App., infra, 41a-42a (Bumatay, J.,

dissenting); id. at 78a (Tung, J., dissenting from the denial of rehearing en banc).

The court of appeals invoked the specific-governsthe-general canon of construction to treat the 1900 Act

as an implicit carveout to FLPMA. See App., infra, 20a22a. But that principle applies only “when conflicting

provisions simply cannot be reconciled.” Id. at 78a-79a

(Tung, J., dissenting from the denial of rehearing en

banc) (quoting Reading Law 183). Even if the 1900 Act

19

is the more specific statute, but see id. at 90a-91a; id. at

47a-49a (Bumatay, J., dissenting), the specific-governsthe-general principle is not a license to create a conflict

where none exists.

The court of appeals also invoked the presumption

against implied repeals and FLPMA’s statement that

“[n]othing in this Act shall be deemed to repeal any existing law by implication.” App., infra, 15a-16a (quoting

FLPMA § 701(f ), 90 Stat. 2786) (brackets in original).

But the concept of an implied repeal presumes that “the

two acts are in irreconcilable conflict” or that the later

statute “covers the whole subject of the earlier one.”

Posadas v. National City Bank, 296 U.S. 497, 503

(1936). Again, there is no conflict here.

Even if there were a conflict, FLPMA would control.

FLPMA establishes “uniform procedures for any disposal of public land,” 43 U.S.C. 1701(a)(10), and broadly

defines “ ‘public lands’ ” in a way that unambiguously encompasses the ceded Fort Hall lands, 43 U.S.C. 1702(e).

When a statute contains such “express indications” of

its applicability, “the implied-repeal canon does not apply.” Exxon, slip op. 19.

c. In places, the court of appeals suggested that the

relationship between FLPMA and the 1900 Act might

be “ambiguous.” App., infra, 15a; see id. at 18a-19a.

But rather than treat ambiguity as a reason to harmonize the statutes, the court applied a purported “clear

statement canon” requiring “any federal statute that

abrogates a Tribe’s treaty rights” to “clearly express

Congress’s intent to do so.” Id. at 27a. In the court’s

view, that principle required reading the 1900 Act and

FLPMA to restrict the government’s authority because

the land exchange would divest the Tribes of their usu-

20

fructuary rights under the 1898 cession agreement to

hunt, graze, fish, and log the land. Id. at 27a-29a.

Even assuming that some clear-statement rule applies in this context, there is no ambiguity as to the effect of the 1898 cession agreement and the 1900 Act on

the Tribes’ usufructuary rights. See App., infra, 53a56a (Bumatay, J., dissenting). The Tribes sold their

land outright for $600,000. 1900 Act § 1, 31 Stat. 673.

And the cession agreement gave the Tribes usufructuary rights only for “[s]o long as any of the” ceded lands

“remain part of the public domain.” Id. at 674. Congress made no promises as to the length of time the land

would remain in the public domain or the means by

which it could be conveyed to others. Indeed, the 1900

Act set up a process that could have led to the immediate disposal of all of the ceded lands. See § 5, 31 Stat.

676. The Tribes had no treaty or contractual right to

insist that their former lands remain in federal hands.

3. a. As explained above, the 1900 Act’s reference to

“the homestead, town-site, stone and timber, and mining laws of the United States only,” § 5, 31 Stat. 676, is

best understood to identify the pre-existing laws that

the government was authorized to invoke as sources of

power to dispose of the ceded Fort Hall lands. So construed, that language referred to a closed set of identifiable laws. But if (as the court of appeals believed) the

language is read as also restricting the future laws that

the government could invoke for that purpose, the enacting Congress obviously could not have had specific

future laws in mind. Rather, on that reading, the language necessarily would identify the types of future

laws that the government could invoke as sources of disposal authority.

21

On that approach, FLPMA would still be an available

source of disposal authority for the ceded Fort Hall

lands. FLPMA currently performs substantially the

same function as the “homestead, town-site, stone and

timber, and mining laws” that were in effect in 1900. In

1900, disposal authorities generally turned on the nature of the land, with different statutes governing mineral, timber and stone, saline, town-site, desert, coal,

and agricultural lands. See Thomas Donaldson, The

Public Domain: Its History, with Statistics 411 (2d ed.

1884); Henry N. Copp, The American Settler’s Guide:

A Popular Exposition of the Public Land System of the

United States of America 7-8 (24th ed. 1904). The commissioners who negotiated the 1898 agreement informed Congress that the ceded lands contained mineral, timber, town-site, and agricultural lands, see

S. Rep. No. 60, 56th Cong., 1st Sess. 9 (1900), so Congress naturally designated laws governing such lands as

available sources of disposal authority (with the homestead laws governing agricultural lands).3

In 1976, Congress replaced the “patchwork” of authorities that had previously applied to the various classes of ceded lands with FLPMA’s “ ‘uniform procedures

for any disposal of public land.’ ” App., infra, 72a (Collins, J., dissenting from the denial of rehearing en banc)

(quoting 43 U.S.C. 1701(a)(10)). FLPMA is the modern

successor to the then-existing homestead, town-site,

In 1926, Congress authorized disposal of the ceded lands under

a statute governing isolated tracts, presumably because earlier settlement patterns had created such tracts out of the originally unbroken cession. See Act of May 19, 1926, ch. 337, 44 Stat. 566. And in

1932, Congress identified the laws governing the disposal of desert

lands as an additional source of authority after Congress became

aware of one small desert parcel in the Fort Hall area. See Act of

May 4, 1932, ch. 164, 47 Stat. 146; 75 Cong. Rec. 3034 (1932).

3

22

stone and timber, and mining laws referenced in the

1900 Act, covering the waterfront of lands that were

previously governed by a variety of separate statutes.

Thus, even if the 1900 Act is understood to limit the

types of future laws under which the Fort Hall lands

may be conveyed, a transfer under FLPMA would still

be authorized.

b. The court of appeals declined to uphold the land

exchange on that theory, stating that FLPMA is “a general land-management law,” not “a homestead, townsite, stone and timber, or mining law.” App., infra, 9a.

But FLPMA repealed most of those earlier laws, see

p. 8 n.1, supra, and established new rules to govern the

disposal of all “public lands,” a term that encompasses

(though is not limited to) the categories listed in the

1900 Act, 43 U.S.C. 1702(e). FLPMA thus is the modern

successor to the listed laws, as it is the successor to

other land-disposal laws as well.

The court of appeals suggested that it might have

reached a different conclusion if “the purpose of the Exchange [were] related to homestead, townsite, stone

and timber, or mining laws.” App., infra, 26a. But the

applicability of the 1900 Act does not turn on whether

the disposal of a particular tract serves a “purpose”

analogous to the listed statutes. Ibid. Rather, it authorizes “disposal under the homestead, town-site,

stone and timber, and mining laws.” § 5, 31 Stat. 676

(emphasis added). Here, FLPMA is the modern version of those earlier laws.

As explained above, FLPMA’s core purpose was to

establish uniform land-disposal mechanisms that would

apply without regard to the anticipated post-conveyance

uses of particular tracts. To the extent there is incongruity in attempting to apply the particularized catego-

23

ries in circa-1900 land-disposal statutes to FLPMA’s

generalized regime, that only underscores the court of

appeals’ more fundamental error. That incongruity is

best avoided by construing the 1900 Act as simply identifying the pre-existing laws under which the ceded

lands could be conveyed. See pp. 13-17, supra. But if

the 1900 Act is read as also restricting the types of future laws that the government could invoke as sources

of disposal authority, FLPMA would qualify, whatever

the purpose of any individual transfer.

B. The Decision Below Carries Significant Consequences

For Federal Land Management And Warrants This

Court’s Review

1. This Court’s review is warranted given “the importance of the decision to the utilization of the public

lands.” United States v. Coleman, 390 U.S. 599, 601

(1968). Public-lands cases are inherently limited by geography, with each regional court of appeals able to effectively determine the scope of the government’s authority over federal lands in that circuit. Perhaps for

that reason, this Court often grants certiorari in such

cases, even in the absence of a square circuit conflict.

See, e.g., United States Forest Serv. v. Cowpasture

River Pres. Ass’n, 590 U.S. 604 (2020); Public Lands

Council v. Babbitt, 529 U.S. 728 (2000); Watt v. Western

Nuclear, Inc., 462 U.S. 36 (1983); Andrus v. Utah, 446

U.S. 500 (1980). That is particularly true in cases arising from the Ninth Circuit, in which nearly three quarters of all federal land is located. See Cong. Research

Serv., Federal Land Ownership 7 (Feb. 21, 2020); see,

e.g., Sturgeon v. Frost, 587 U.S. 28 (2019); Sturgeon v.

Frost, 577 U.S. 424 (2016); Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992); Andrus v. Idaho, 445

U.S. 715 (1980); Coleman, supra.

24

This Court’s intervention is likewise appropriate

here. The court of appeals “incorrectly resolved an important question in a manner that has potentially significant ramifications for other cases.” App., infra, 70a

(Collins, J., dissenting from the denial of rehearing en

banc). Because the statutes listed in the 1900 Act are

no longer operative, the court’s decision leaves the federal government with no “viable method for disposing

of the ceded lands.” Id. at 114a (district-court decision).

Interior estimates that more than 72,000 acres of the

ceded Fort Hall lands (an area five times the size of

Manhattan) remain under federal ownership and are directly affected by the decision below.

The consequences of the court of appeals’ holding,

however, reach far beyond the ceded lands. In his dissent from denial of rehearing en banc, Judge Tung identified 22 other turn-of-the-century statutes that use

similar phrasing to govern the disposal of land on both

former Indian reservations and former military installations. See App., infra, 95a-97a & nn.3-4. The government has identified at least 13 additional statutes with

similar language that might effectively preclude disposal under the logic of the decision below.4 Neither the

See Act of May 27, 1920, ch. 209, § 1, 41 Stat. 628 (California and

Oregon) (“ Title to all said lands can be acquired by homestead entry

under the general homestead laws and the provisions of this Act and

not otherwise.”); Act of Feb. 14, 1913, ch. 54, § 2, 37 Stat. 676 (North

and South Dakota) (“ That the lands shall be disposed of by proclamation under the general provisions of the homestead and town-site

laws of the United States, and shall be opened to settlement and

entry by proclamation of the President * * * ; and no person shall

be permitted to settle upon, occupy, or enter any of said lands except

as prescribed in said proclamation.”); Act of May 27, 1910, ch. 257,

§ 2, 36 Stat. 441 (South Dakota) (same); Act of May 29, 1908, ch. 218,

§ 2, 35 Stat. 461 (North and South Dakota) (same); Act of Mar. 2,

4

25

Tribes nor the court of appeals has offered any way to

distinguish those statutes. And other statutes, while

not barring disposal altogether, appear to bar FLPMA

land exchanges under the court of appeals’ logic by authorizing disposal for “cash only” or “money only.”5

Collectively, “[t]hose statutes cover large portions of

public land throughout [the Ninth Circuit] (and beyond).” App., infra, 95a-97a (Tung, J., dissenting from

1907, ch. 2536, § 2, 34 Stat. 1230 (South Dakota) (same); Act of May

29, 1908, ch. 217, § 2, 35 Stat. 458-459 (Washington) (similar, but

limited to homestead laws); Act of Mar. 22, 1906, ch. 1126, § 4, 34

Stat. 81 (Washington) (“ That the said lands shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the time when and the manner in which these

lands may be settled upon, occupied, and entered by persons entitled to make entry thereof, and no person shall be permitted to settle upon, occupy, and enter any of said lands except as prescribed in

such proclamation.”); Act of Apr. 23, 1904, ch. 1495, § 9, 33 Stat. 304

(Montana) (same); Act of Mar. 3, 1893, ch. 209, § 10, 27 Stat. 642

(Oklahoma) (incorporating the disposal provisions of the Act of

March 2, 1889, ch. 412, § 13, 25 Stat. 1005, which authorized disposal

“to actual settlers under the homestead laws only”); Act of Mar. 3,

1893, ch. 209, § 13, 27 Stat. 644 (Oklahoma) (incorporating the previous provision); Act of Mar. 3, 1893, ch. 200, § 2, 27 Stat. 555 (Nebraska) (former military reservation “shall be open to settlement

under the homestead law only”); Act of Apr. 30, 1888, ch. 206, § 21,

25 Stat. 102 (Nebraska, North Dakota, and South Dakota) (“ That

all the lands in [a former Indian reservation] * * * shall be disposed

of by the United States to actual settlers only, under the provisions

of the homestead law * * * and under the law relating to townsites.”); Act of May 15, 1872, ch. 165, 17 Stat. 120 (“ That the lands

constituting the Fort Collins military reservation * * * are hereby

restored to the United States and made subject to pre-emption and

homestead entry only, as now provided for by law.”).

5

E.g., Act of Mar. 3, 1873, ch. 333, §1, 17 Stat. 634 (California)

(“[A]ll said lands shall be sold and disposed of for cash only.”); Act

of July 27, 1868, ch. 248, § 6, 15 Stat. 223 (California) (“[A]ll said

lands shall be sold and disposed of for money only.”).

26

the denial of rehearing en banc). This Court has previously granted certiorari when a case presents “a significant issue regarding the disposition of vast amounts of

public lands”—a description the Court has applied to as

little as 571,000 acres of federal land. Andrus v. Utah,

446 U.S. at 506 & n.6; see also Andrus v. Idaho, 445 U.S.

at 722 (granting certiorari to resolve the status of 2.4

million acres of federal land in Idaho). Here, Interior

informs this Office that the 35 statutes listed above and

in Judge Tung’s dissent cover more than 4 million acres

of land that remain under federal ownership. Of that

land, 2.4 million acres are in the Ninth Circuit. The decision below risks “effectively freez[ing] the sale or exchange” of that sizable portion of the West. App., infra,

79a (Tung, J., dissenting from the denial of rehearing

en banc).

2. The court of appeals attempted to minimize the

consequences of its ruling by purporting to limit its decision to “this particular exchange,” while holding out

the possibility that transfers for “purposes related to”

the listed laws (e.g., for timber or mining purposes)

might be permissible. App., infra, 30a. That aspect of

the court of appeals’ decision provides no sound reason

for this Court to deny review.

The pre-existing laws referenced in the 1900 Act

generally focused on individual settlers who would, for

example, fell timber for “domestic purposes,” Act of

June 3, 1878, ch. 150, § 1, 20 Stat. 88—a category of disposal that is unlikely to recur today. The statutes also

contained strict acreage limitations that are incompatible with many modern projects. E.g., Homestead Act

§ 1, 12 Stat. 392 (160 acres); Timber and Stone Act § 1,

20 Stat. 89 (same). If conveyances of the ceded Fort

Hall lands under post-1900 statutes are subject to simi-

27

lar restrictions, the practical effect of the court of appeals’ decision would be tantamount to barring disposal

outright. And even if the Ninth Circuit’s decision is

read as potentially allowing any disposal related to logging, mining, or the like, the listed laws taken together

omit many common purposes of modern FLPMA land

transfers, such as conservation, economic development,

infrastructure, and recreation.

The decision below also imposes significant practical

costs beyond the sheer inability to dispose of the affected land. Congress enacted FLPMA to address the

“virtual chaos with respect to the public lands” that previously existed. United States v. Locke, 471 U.S. 84, 86

(1985). Just with respect to mineral claims, for example, the web of overlapping, dormant restrictions meant

that “federal land managers had to proceed slowly and

cautiously in taking any action affecting federal land.”

Id. at 87. “Each time the Bureau of Land Management

* * * proposed a sale or other conveyance of federal

land, a title search in the county recorder’s office was

necessary” to determine whether some outstanding, potentially invalid claim still applied. Ibid.

The decision below would recreate that discarded regime with respect to federal land management generally. The Bureau of Land Management sells or exchanges tens of thousands of acres of federal land each

year. See U.S. Dep’t of the Interior, Bureau of Land

Mgmt., Public Land Statistics 2024, at 12 (June 2025),

https://perma.cc/5YQD-E3PH. For every transfer, federal officials would need to trace the history of every

constituent parcel, comb through the Statutes at Large

for any potentially restrictive condition, and then determine whether that provision has been repealed, by

FLPMA or otherwise. The transferees of such lands in

28

turn would risk the undermining of their title by some

“arcane statute[]” that an unhappy neighbor might unearth more than a century later. App., infra, 51a (Bumatay, J., dissenting).

The United States acquired ownership of the ceded

Fort Hall lands 126 years ago. Interior reports that,

over that time, the government has often conveyed portions of the land, including for residential development,

a Jewish community center, the expansion of the Bannock

County landfill, and Idaho State University’s flagship

Pocatello campus. With respect to the specific land exchange at issue here, Interior estimates that the land

conveyed to Simplot will support 3763 jobs and contribute $768 million annually to Idaho’s economy. See 2335543 C.A. E.R. 127. The public in turn would benefit

from the land that Simplot has given the federal government in exchange. See id. at 127, 458 (explaining

that this land includes “crucial mule deer habitat” and

will provide new recreational opportunities for hikers,

bikers, hunters, and others). The government first approved this project under President George W. Bush

and has defended it across the last five administrations.

Until this case, no one had questioned the government’s authority under FLPMA to effect such transfers. Indeed, the Tribes had previously challenged this

very project on procedural grounds without alleging

that the government lacked statutory authority to conduct a land exchange. See p. 7, supra. It was only in

2020 that the Tribes first raised this argument, mere

weeks before the completion of a land exchange decades

in the making. The risk that future transfers could be

blocked or undone poses a substantial hindrance to the

government’s management of federal land.

29

3. Neither the interlocutory nature of the decision

below nor the district court’s alternative holdings counsel against review.

Although the court of appeals’ decision finally resolved the merits of the Tribes’ suit, the case is still in

an interlocutory posture because the district court previously reserved judgment on the appropriate remedy.

See App., infra, 118a. The interlocutory nature of a decision is often a sound basis to deny certiorari. But in

this case, the merits question “is fundamental to the further conduct of the case” and warrants immediate resolution by this Court. United States v. General Motors

Corp., 323 U.S. 373, 377 (1945). As the district court observed, the meaning of the 1900 Act “will likely be determinative of the remedy question.” App., infra, 151a.

Although the United States previously suggested that

it would be more efficient for the district court to address the remedy before any appeal on the merits, 2380059 Gov’t C.A. Resp. Br. 2-3, the district court and the

court of appeals disagreed, and the court of appeals has

now resolved the merits on the broadest ground possible. There is consequently no reason for this Court to

await a logically subsequent remedial order before reviewing the merits itself.

The district court held in the alternative that the

land exchange violated procedural requirements imposed by FLPMA and NEPA. App., infra, 119a-130a,

132a-135a. But those holdings were incorrect at the

time, and the district court’s error is even clearer now,

given this Court’s recent clarification of the deferential

standard that governs review of agency action under

NEPA. See id. at 58a-67a (Bumatay, J., dissenting)

(discussing Seven Cnty. Infrastructure Coal. v. Eagle

County, 605 U.S. 168 (2025)). In dissenting from the

30

denial of rehearing en banc, five more judges agreed

with Judge Bumatay’s panel dissent on this point, and

none sided with the district court. See id. at 81a n.1

(Tung, J., dissenting from the denial of rehearing en

banc). In any event, the district court’s alternative

holdings involve purported procedural defects that the

agency could cure on remand. The court of appeals’

holding, by contrast, permanently threatens the government’s ability to dispose of the ceded Fort Hall lands

and a sizable portion of the West.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

ADAM R.F. GUSTAFSON

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ROBERT N. STANDER

Deputy Assistant

Attorney General

AARON Z. ROPER

Assistant to the

Solicitor General

ROBERT J. LUNDMAN

DANIEL HALAINEN

Attorneys

JULY 2026

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (Aug. 22, 2025) ...... 1a

Appendix B — Court of appeals order denying rehearing

en banc (Apr. 21, 2026) ........................... 68a

Appendix C — District court memorandum decision and

order granting summary judgment

(Mar. 31, 2023) ....................................... 105a

Appendix D — District court memorandum decision and

order granting certification

(June 30, 2023) ....................................... 149a

Appendix E — Statutory provisions:

43 U.S.C. 1702(e) ................................... 153a

43 U.S.C. 1716(a)................................... 153a

Act of June 6, 1900,

ch. 813, 31 Stat. 672:

a. Section 1 (reproducing the

1898 cession agreement):

i.

Article III ................ 154a

ii.

Article IV................. 154a

b. Section 4 ............................... 155a

c. Section 5 ............................... 156a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 23-35543, 23-35544

D.C. No. 4:20-cv-00553-BLW

SHOSHONE-BANNOCK TRIBES OF THE FORT HALL

RESERVATION, PLAINTIFF-APPELLEE

v.

U.S. DEPARTMENT OF THE INTERIOR; UNITED

STATES BUREAU OF LAND MANAGEMENT;

LAURA DANIEL-DAVIS, PRINCIPAL DEPUTY ASSISTANT

SECRETARY FOR LAND AND MINERALS

MANAGEMENT, DEFENDANTS-APPELLANTS

and

J.R. SIMPLOT COMPANY, INTERVENOR-DEFENDANT

Argued and Submitted: Nov. 21, 2024

San Jose, California

Filed: Aug. 22, 2025

Appeal from the United States District Court for the

District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

OPINION

(1a)

2a

Before: MICHELLE T. FRIEDLAND and PATRICK J.

BUMATAY, Circuit Judges, and MATTHEW F. KENNELLY,*

District Judge.

Opinion by Judge FRIEDLAND;

Dissent by Judge BUMATAY.

FRIEDLAND , Circuit Judge:

This interlocutory appeal requires us to determine

the validity of a recent exchange of land between the Bureau of Land Management (“BLM”) and the J.R. Simplot Company. In that exchange, BLM traded land that

was formerly part of the Fort Hall Reservation of the

Shoshone-Bannock Tribes (“the Tribes”) for land owned

by Simplot. The Tribes had ceded that land to the

United States in an 1898 agreement, which Congress

ratified in the Act of June 6, 1900, ch. 813, 31 Stat. 672

(“the 1900 Act”). The 1900 Act specifies categories of

laws under which the ceded Fort Hall lands can be “disposed” (meaning transferred, including by sale or exchange) to private parties and reserves the Tribes’ right

to continue using any ceded land that has not been so

disposed.

BLM authorized the land exchange under the Federal Land Policy and Management Act of 1976 (“FLPMA”),

43 U.S.C. §§ 1701-1787, which generally gives BLM authority to dispose of public lands. But the Tribes argue

that the land exchange contravened the 1900 Act’s restrictions on disposal of the ceded Fort Hall lands. We

agree with the Tribes that the 1900 Act precludes the

* The Honorable Matthew F. Kennelly, United States District

Judge for the Northern District of Illinois, sitting by designation.

3a

land exchange, and we therefore affirm the district court’s

ruling invalidating it.

I.

A.

The Shoshone-Bannock Tribes are a federally recognized Indian Tribe whose permanent home is the Fort

Hall Reservation. The Reservation, located in Idaho

near the town of Pocatello, was established in 1868 under the terms of the Fort Bridger Treaty, 15 Stat. 673,

between the Tribes and the United States.

In 1896, Congress authorized the Secretary of Interior to appoint a commission to negotiate with the Tribes

for the “surrender” of a portion of the Reservation. Act

of June 10, 1896, ch. 398, 29 Stat. 321, 341-42. That commission and the Tribes reached an agreement in 1898, in

which the Tribes ceded a portion of the Fort Hall Reservation lands in exchange for $600,000. Agreement of

February 5, 1898, 31 Stat. 672, 672-74 (“1898 Agreement”).

The 1898 Agreement also specified that:

So long as any of the [ceded lands] remain part of

the public domain, [the Tribes] . . . shall have the

right, without any charge therefor, to cut timber for

their own use, . . . and to pasture their live stock on

said public lands, and to hunt thereon and to fish in

the streams thereof.

Id. at 674.

Congress ratified the 1898 Agreement in the 1900

Act, incorporating the 1898 Agreement verbatim and

adding several provisions. Those added provisions specify the processes by which the ceded Fort Hall lands can

be removed from the public domain. In relevant part,

4a

Section 5 of the 1900 Act states that, after land allotments are made to certain individual Tribal members, 1

“the residue of said ceded lands shall be opened to settlement . . . and shall be subject to disposal under the

homestead, townsite, stone and timber, and mining laws

of the United States only.” 2 Id. at 676.

B.

Simplot owns and operates the Don Plant, a phosphateprocessing facility adjacent to the Fort Hall Reservation. The Don Plant manufactures phosphates for fertilizer through a process that produces a waste called

phosphogypsum. Since 1994, Simplot has been seeking

to complete a land exchange with BLM to enable Simplot to expand the Don Plant’s phosphogypsum disposal

facilities.3 Simplot contends that a land exchange is nec-

Section 4 of the 1900 Act specifies that the ceded lands shall first

be allotted to Tribal members. 31 Stat. 672, 675. Allotment was a

federal policy, common in the late 19th century, in which the government transferred former Tribal lands that had previously been collectively owned by Tribes to Tribal members individually. See

County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 254 (1992).

2

Homestead laws opened public lands for private settlement, and

townsite laws authorized the disposal of public lands for building

towns. See, e.g., Act of May 20, 1862, ch. 75, 12 Stat. 392; Act of May

23, 1844, ch. 17, 5 Stat. 657. Stone and timber laws opened public

lands to private use and ownership for growing timber and extracting stone. See, e.g., Timber and Stone Act of 1878, ch. 151, 20 Stat.

89; Timber Culture Act of 1873, ch. 277, 17 Stat. 605. Mining laws

opened public lands for mineral mining. See, e.g., Mining Law of

1872, ch. 152, 17 Stat. 91.

3

An earlier attempt at the land exchange was halted after a court

held that BLM’s approval of the exchange violated the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347. Shoshone1

5a

essary because the Plant’s existing phosphogypsum disposal facility is projected to reach capacity by 2031, and

the Plant will not be able to continue operating if it runs

out of phosphogypsum storage space.

C.

In August 2020, BLM approved the Blackrock Land

Exchange (“the Exchange”). 4 BLM agreed to transfer

to Simplot certain federal land that was part of the lands

ceded by the Tribes in the 1898 Agreement. In return,

Simplot agreed to transfer to BLM certain land that it

owned.

BLM stated that it was approving the Exchange pursuant to its authority to dispose of public lands under

FLPMA. FLPMA, enacted in 1976, declares a federal

policy that “the public lands be retained in Federal ownership” except when the disposal of a particular parcel

of land “will serve the national interest.” 43 U.S.C.

§ 1701(a)(1). FLPMA establishes “uniform procedures”

for the disposal of public lands, including by authorizing

exchanges of public lands when “the Secretary concerned determines that the public interest will be well

served by making that exchange.” 43 U.S.C. §§ 1701(a)(10),

1716(a). FLPMA defines “public lands” to cover “any

land and interest in land owned by the United States

Bannock Tribes of Fort Hall Rsrv. v. U.S. Dep’t of Interior, No. 4:10CV-004-BLW, 2011 WL 1743656, at *12 (D. Idaho May 3, 2011).

4

The BLM’s Record of Decision on the Exchange is available

online. See U.S. Dep’t of the Interior, Bureau of Land Mgmt., Blackrock Land Exchange, Record of Decision 3 (2020), https://eplanning.

blm.gov/public_projects/119626/200293977/20024325/250030529/2008

18%20Blackrock%20Land%20Exchange%20Record%20of%20

Decision-508%20final-shortened%20emails%20-%20typo%20fixed.pdf

[https://perma.cc/2HBZ-HZ4A].

6a

within the several States and administered by [BLM],

without regard to how the United States acquired ownership.” 5 Id. § 1702(e). When FLMPA was enacted, it

expressly repealed a long list of laws that had previously

governed disposal of public lands. Pub. L. No. 94-579

§§ 702-03, 90 Stat. 2743, 2787-91 (1976). The 1900 Act

was not on that list. The list of repealed statutes did

include most homestead, townsite, stone and timber, and

mining laws, with some exceptions—for example,

FLPMA left certain mining laws in place, including the

Mining Law of 1872, 30 U.S.C. §§ 22-54.6

The Tribes challenged the Exchange by filing suit in

December 2020 against BLM, the Department of the Interior, and the Principal Deputy Assistant Secretary for

Land and Minerals Management (collectively, “the Government”) in the United States District Court for the

District of Idaho. Although the Tribes’ complaint

sought injunctive relief, they did not move for a temporary restraining order or a preliminary injunction, and

the Exchange was carried out that same month.

Simplot intervened in the suit as a defendant, and all

parties cross-moved for summary judgment on the ad5

The scope of “public lands” is subject to two exclusions: “lands

located on the Outer Continental Shelf” and “lands held for the benefit of Indians, Aleuts, and Eskimos.” 43 U.S.C. § 1702(e). The Tribes

do not argue that either applies here, so we assume neither does for

purposes of our analysis.

6

The Mining Law of 1872 is still in effect but is currently subject

to a moratorium under a separate statute. See Dep’t of the Interior

and Related Agencies Appropriations Act of 1995, Pub. L. No. 103332 §§ 112-13, 108 Stat. 2499, 2519 (1994). FLPMA also left in place

the Desert Lands Act of 1877, ch. 107, 19 Stat. 377, which was made

applicable to the ceded Fort Hall lands in a separate statute, see Act

of May 4, 1932, ch. 164, 47 Stat. 146.

7a

ministrative record. In 2023, the district court granted

summary judgment to the Tribes in relevant part. The

court held that because the Exchange did not comply

with the 1900 Act, BLM’s approval of the Exchange violated the Administrative Procedure Act (“the APA”),

5 U.S.C. § 706(2)(A), and breached the United States’

trust responsibility to the Tribes. The court also held,

in the alternative, that BLM’s approval of the Exchange

failed to comply with the requirements of FLPMA and

the National Environmental Policy Act of 1969, 42

U.S.C. §§ 4321-4347. Instead of reaching the issue of

remedies in the summary judgment order, the district

court ordered the parties to confer and submit proposals

for briefing on what remedies would be appropriate

given that the Exchange had been carried out more than

two years earlier.

Simplot then requested certification to file an interlocutory appeal under 28 U.S.C. § 1292(b), which the district court granted. The court concluded that the interplay between the 1900 Act and FLPMA was a controlling question of law for which there were substantial

grounds for differences of opinion. The court further

concluded that an immediate resolution of the question

would materially advance the ultimate termination of

the litigation because our court’s review would “create

certainty that [would] likely save substantial time and

resources in litigating remedies,” given the difficult

questions that the district court would have to resolve

about whether (and, if so, how) to unwind the Exchange.

Simplot timely petitioned for permission to appeal,

and the Government filed a conditional petition to preserve its right to participate should Simplot’s petition be

8a

granted. Our court granted the petitions under 28 U.S.C.

§ 1292(b).

II.

“We review de novo the district court’s decision on

cross motions for summary judgment.” Csutoras v. Paradise High Sch., 12 F.4th 960, 965 (9th Cir. 2021) (quoting Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir.

2007)). Under the APA, we set aside agency actions

if they are “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A).

III.

A.

The Tribes contend that the plain text of the 1900 Act

does not allow the Exchange. We agree.7

Section 5 of the 1900 Act specifies that the ceded Fort

Hall lands “shall be subject to disposal under the homestead, townsite, stone and timber, and mining laws of the

United States only.” 31 Stat. at 676 (emphasis added).

That list of specific categories of laws, followed by the

limiter “only,” indicates that the listed categories comprise the exclusive set of laws to be used for disposing of

the lands ceded by the Tribes in the 1898 Agreement.

The Tribes also argue that BLM’s approval of the Exchange

breached the United States’ trust responsibility to the Tribes. The

Government does not dispute that a violation of the 1900 Act by BLM

would breach the United States’ trust responsibility. The Tribes further argue that the Exchange also violated a separate clause in the

1900 Act that states that “no purchaser shall be permitted in any

manner to purchase more than one hundred and sixty acres of the

land hereinbefore referred to.” 31 Stat. at 676. The district court

did not reach that issue, and we do not reach it on appeal.

7

9a

See Only, Merriam-Webster’s Collegiate Dictionary

(11th ed. 2020) (defining “only” as “solely, exclusively”);

see also, e.g., City of Chicago v. Env’t Def. Fund, 511 U.S.

328, 334 (1994) (interpreting a list beginning with “only”

as an exclusive list); Fed. Lab. Rels. Auth. v. Aberdeen

Proving Ground, Dep’t of the Army, 485 U.S. 409, 412

(1988) (per curiam) (“The phrase ‘only if ’ denotes exclusivity.”).

The Exchange disposed of ceded Fort Hall lands under FLPMA. FLPMA is not a homestead, townsite,

stone and timber, or mining law. Rather, it is a general

land-management law that governs “any land and interest in land owned by the United States within the several States and administered by [BLM]” and that establishes “uniform procedures” for the disposal of those

lands. 43 U.S.C. §§ 1702(e), 1701(a)(10). FLPMA’s

scope is wider than the combination of all the categories

of land disposal laws covered in Section 5. And even to

the extent that FLPMA overlaps with Section 5’s listed

land disposal laws, the Exchange is outside that area of

overlap: Here, the Exchange disposed of ceded land to

facilitate the expansion of a phosphogypsum waste facility, which is not a purpose that would be encompassed

within the categories of laws listed in Section 5. The Exchange therefore contravened Section 5’s restrictions on

the disposal of the ceded lands.

The Government and Simplot (collectively, “Defendants”), offer several arguments why we should not interpret Section 5 to restrict the options for disposing of the

ceded Fort Hall lands. Defendants’ proposed interpretations of Section 5, however, are not consistent with the

1900 Act’s text or its historical context.

10a

The Government contends that the categories of laws

listed in Section 5 represent “essentially the full range”

of federal statutes that covered disposal of public lands

in 1900. Because Section 5 was intended to allow for disposal of the ceded lands under all the federal legal authorities then in effect, the Government argues, Section

5 should now be interpreted to allow for disposal under

all current federal laws that authorize land disposal, including FLPMA.

But contrary to the Government’s premise, the categories of laws listed in Section 5 did not encompass the

full range of public-land disposal statutes that existed in

1900. Other Tribal land cession agreements that were

ratified during the same period and included provisions

similar—but not identical—to Section 5 specified options for removing ceded lands from public ownership

that were absent from the 1900 Act, including under

laws governing disposal of “coal lands” and “desert

lands.” Act of May 1, 1888, ch. 213, § 3, 25 Stat. 113, 133

(opening ceded lands under “the laws governing the disposal of coal lands, desert lands, and mineral lands”);

Act of May 30, 1908, ch. 237, § 7, 35 Stat. 558, 561 (specifying that ceded lands shall be disposed of “under the

general provisions of the homestead, desert-land, mineral, and town-site laws”). The 1900 Act’s omission of

such land laws indicates that Congress did not intend to

capture the full range of public-land disposal statutes.

Indeed, other Tribal land cession statutes enacted

during the same period expressly allowed for disposal

under all public-land laws. See, e.g., Act of Aug. 15, 1894,

ch. 290, § 17, 28 Stat. 305, 336 (stating that ceded lands

“shall . . . be subject to disposal under the provisions

of the general land laws” (emphasis added)). That Con-

11a

gress chose not to use such language in the 1900 Act further shows that Congress did not intend to include all

public-land disposal statutes.

Subsequent Congresses, moreover, enacted statutes

seemingly based on the presumption that the 1900 Act

did not allow for land disposal under all statutory methods. In 1926 and 1932, Congress amended Section 5 to

expand the disposal options for the ceded Fort Hall

lands by allowing for disposal under a desert lands statute and a statute governing disposal of isolated tracts of

land. Act of May 19, 1926, ch. 337, 44 Stat. 566; Act of

May 4, 1932, ch. 164, 47 Stat. 146. Those amendments

would not have been necessary unless Congress understood Section 5 to restrict disposal options to the listed

categories of laws.

Another problem with the Government’s argument is

that it would seem to render Section 5’s qualifier “only”

superfluous. The Government argues that the purpose

of “only” was to prohibit disposal via methods outside

the then-existing federal statutory framework. The

Government, however, does not offer any example of a

disposal method that would be excluded from Section 5

under that reading.

Simplot attempts to offer a non-superfluous interpretation of “only.” Simplot contends that the term “only”

in “shall be subject to disposal under the homestead,

townsite, stone and timber, and mining laws of the

United States only,” 31 Stat. at 676, should be read to

modify the immediately preceding phrase “laws of the

United States.” Under Simplot’s interpretation, the

phrase “laws of the United States only” means that disposal can occur under any federal law—but only under

federal law, not under state law.

12a

There are two problems with that interpretation.

First, it reads the entire phrase “homestead, town-site,

stone and timber, and mining” out of the statute. Under

Simplot’s view, Section 5 conveys that any federal statute can authorize disposal of the ceded Fort Hall lands,

so Section 5’s list of specific categories of laws has no

purpose. Second, Simplot’s interpretation is an unnatural reading of the provision as a whole. The phrase “laws

of the United States” modifies each item in the list of

statutory categories (“homestead, townsite, stone and

timber, and mining”), such that “only” should be read as

a limiter on the entire listed set of statutory categories.

In other words, the best reading is that the ceded lands

may be disposed of only under the listed categories of

federal laws.

Defendants rely on the legislative history of bills

amending the 1900 Act to support their non-restrictive

reading of Section 5, but that reliance is unavailing. As

an initial point, “[t]here is no need to consult extratextual sources when the meaning of a statute’s terms is

clear.” McGirt v. Oklahoma, 591 U.S. 894, 916 (2020).

Extratextual materials are useful only to “clear up,” rather than “ ‘create[,]’ ambiguity about a statute’s original meaning.” Id. (quoting Milner v. Dep’t of Navy, 562

U.S. 562, 574 (2011)). The plain meaning of the 1900 Act

is clear, so there is no reason for us to look to the legislative history. Moreover, Defendants’ evidence comes

primarily from subsequent amendments to the 1900 Act

and therefore is “less illuminating than . . . contemporaneous evidence” from the passage of the 1900 Act.

Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps

of Eng’rs, 531 U.S. 159, 170 (2001) (quoting Hagen v. Utah,

510 U.S. 399, 420 (1994)).

13a

Even if the legislative history of subsequent laws

could be informative, the legislative history invoked here

would at most provide equivocal evidence about the

meaning of the 1900 Act. The Government points to a

House report on a 1904 bill amending the 1900 Act, 8

which described Section 5 of the 1900 Act as opening the

ceded lands “to settlement and appropriation under the

general laws of the United States.” H.R. Rep. No. 573161, at 2 (1903) (emphasis added). Although that statement could support interpreting Section 5 to broadly allow for disposal under any public-land laws, other legislative history from a different amendment to the 1900

Act supports the opposite interpretation. In 1926, Congress amended the 1900 Act to add laws regarding the

disposal of isolated tracts of land to the list of statutes

providing disposal options. A House report accompanying the 1926 bill incorporated a statement by the Secretary of Interior that the 1900 Act “did not extend the

provisions of the isolated tract laws to the lands, and under the construction given by the [Department of Interior] in similar cases no laws other than those specifically extended to the lands are applicable thereto.”

S. Rep. No. 69-685, at 2 (1926) (emphasis added). Congress in 1926 apparently agreed with the Secretary of

Interior’s assessment because it otherwise would not

have been necessary to add isolated-tract laws to the 1900

Act’s list of available land disposal options.

Simplot further argues that reading Section 5 to restrict future disposal options for the ceded Fort Hall

lands would conflict with the purpose of the 1900 Act,

The 1904 bill eliminated a requirement imposed by the 1900 Act

that ceded lands within five miles of the town of Pocatello be sold at

public auction. See Act of March 30, 1904, ch. 854, 33 Stat. 153 (1904).

8

14a

which was to support a then-prevailing federal policy

that encouraged “the population’s westward expansion”

and “private settlement and development of public

lands.” The 1900 Act was indeed enacted against a backdrop of westward expansion and private settlement on

former Tribal lands. See Cass County v. Leech Lake

Band of Chippewa Indians, 524 U.S. 103, 106 (1998).

But Congress apparently did not have a policy preference to allow for disposal of ceded lands by any means

whatsoever because it enacted numerous land cession

statutes during that period that listed the specific categories of laws to be used for disposal of ceded lands, and

those statutes often clearly stated that the listed categories comprised the sole disposal options for the ceded

lands. See, e.g., Act of May 1, 1888, ch. 213, § 3, 25 Stat.

113, 133 (specifying that ceded lands are open to entry

under “the laws regulating homestead entry . . . and to

entry under the town site laws and the laws governing

the disposal of coal lands, desert lands, and mineral

lands; but are not open to entry under any other laws

regulating the sale or disposal of the public domain”

(emphasis added)); Act of Jan. 14, 1889, ch. 24, § 6, 25

Stat. 642, 644 (specifying that ceded lands “shall be disposed of by the United States to actual settlers only under the provisions of the homestead law” (emphasis

added)). The similarly restrictive language of Section 5

of the 1900 Act belies Simplot’s contentions about Congress’s purpose and policy preferences. In any event,

“no amount of policy-talk can overcome a plain statutory

command.” Niz-Chavez v. Garland, 593 U.S. 155, 171

(2021).

15a

B.

Having interpreted the 1900 Act’s list of disposal options as exclusive, we next consider Defendants’ various

arguments contending that FLPMA repeals or supersedes that exclusivity. We conclude that the best interpretation of FLPMA is that it does not repeal or supersede the 1900 Act’s restrictions on disposal. At most, it

is ambiguous whether FLPMA does so, triggering application of the Indian canons of construction. And, as

explained in Part III.C below, one of the Indian canons—the principle that Congress must clearly express

its intent to abrogate a Tribe’s treaty rights—resolves

any ambiguity in favor of the interpretation advocated

by the Tribes, given that Congress has not done so here.

1.

Because FLPMA broadly defines “public lands” and

provides for their disposal by exchange, it is clear that

if the 1900 Act did not exist, FLPMA would permit disposal of the ceded Fort Hall lands. See 43 U.S.C.

§§ 1702(e), 1716. It is also clear that FLPMA contains

no express repeal of the 1900 Act’s restrictions on disposal of the ceded Fort Hall lands. Still, the Government and Simplot urge us to read FLPMA as impliedly

repealing or superseding those restrictions.

a.

Although a later-enacted statute “can sometimes operate to amend or even repeal an earlier statutory provision . . . , ‘repeals by implication are not favored’ and

will not be presumed unless the ‘intention of the legislature to repeal [is] clear and manifest.’ ” Nat’l Ass’n of

Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662

(2007) (second alteration in original) (quoting Watt v.

16a

Alaska, 451 U.S. 259, 267 (1981)). FLPMA reveals no

“clear and manifest” intent to amend or repeal Section 5

of the 1900 Act—to the contrary, FLPMA plainly states

an intent not to do so. When Congress passed FLPMA,

it expressly repealed or struck portions of 147 laws, and

it marked an additional 104 laws for repeal effective on

FLPMA’s tenth anniversary. §§ 702-03, 90 Stat. at 278791. The list of repealed laws includes many laws governing disposal of public lands, but, critically, does not include the 1900 Act. And, in Section 701 of FLPMA, Congress emphasized the exclusivity of that list, stating that

outside of the list of explicitly repealed laws, “[n]othing

in this Act shall be deemed to repeal any existing law by

implication.” § 701(f), 90 Stat. at 2786. 9 Section 701’s

clear statement against implied repeal shows that Congress did not intend to repeal any laws beyond those

listed and thus shows that FLPMA did not implicitly repeal the disposal restrictions in Section 5. 10

Simplot argues that the enactment of FLPMA as a

comprehensive land management law automatically repealed specific disposal laws that impose restrictions not

contained in FLPMA. 11 But if that were true, Congress

Simplot suggests that because this provision is not codified, it

should be ignored. But “it is the Statutes at Large that provides the

legal evidence of laws,” despite the U.S. Code’s omission of any particular provision. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of

Am., Inc., 508 U.S. 439, 448 (1993) (quotation marks omitted).

10

A Senate report accompanying FLPMA further underscored

that intent: “The list of laws to be repealed is specific. The bill would

not repeal or modify any law or segment of law not specifically contained in that list.” S. Rep. No. 94-583, at 26-27 (1975).

11

Simplot also points to a separate provision of FLPMA, 43 U.S.C.

§ 1715(a), which grants the Secretary of Interior authority to acquire

land “[n]otwithstanding any other provisions of law.” Simplot ar9

17a

would have had no reason to explicitly repeal so many

other disposal laws. The plain text and structure of

FLPMA indicate that Congress did not intend any such

automatic repeal.

By contrast, as noted above, several other statutes

passed after the 1900 Act did modify Section 5, including

by clearly and expressly adding disposal options for the

ceded lands. See Act of March 30, 1904, ch. 854, 33 Stat.

153 (eliminating a requirement imposed by the 1900 Act

that sales of any parts of the ceded lands within five

miles of the town of Pocatello occur through public auction), Act of May 19, 1926, ch. 337, 44 Stat. 566 (making

a prior statute on disposal of isolated tracts of land “applicable to the ceded lands on the former Fort Hall Indian Reservation”); Act of May 4, 1932, ch. 164, 47 Stat.

146 (making a prior statute on disposal of desert lands

“applicable to the ceded lands on the former Fort Hall

Indian Reservation”); Act of May 12, 1920, ch. 181, 41

Stat. 596 (conveying specifically described tracts of land

within the ceded Fort Hall lands to the city of Pocatello).

Those statutes, which specifically refer to the ceded

Fort Hall lands and therefore express an intent to add

to the disposal methods listed in Section 5, illustrate that

Congress knows how to properly add to Section 5’s disposal options when it wants to do so.

Simplot points to FLPMA’s express repeal of the Act

of May 19, 1926, in support of its contention that

FLPMA applies to the ceded Fort Hall lands and thus

supersedes the 1900 Act’s restrictions on disposal. The

gues that the use of “notwithstanding” in § 1715(a) supersedes any

conflicting provision in the 1900 Act. But § 1715(a) governs acquisition of land under FLPMA, not disposal of land, so that provision

has no relevance here.

18a

1926 Act, which had applied a statute governing disposal

of isolated tracts of land to the ceded Fort Hall lands,

was included in a list of isolated tract laws that FLPMA

marked for repeal. § 703(a), 90 Stat. at 2790. Under

Simplot’s view, that express reference to the 1926 Act

shows that FLPMA was, by extension, intended to apply

to the ceded Fort Hall lands. Simplot argues that the

reference makes FLPMA analogous to the other statutes that added to the 1900 Act’s disposal options.

But unlike those statutes, FLPMA did not reference

the 1900 Act or name the ceded Fort Hall lands—

instead, it merely included the 1926 Act in its list of repealed isolated tract laws. That reference to the 1926

Act does not provide a clear expression of intent to repeal or modify the 1900 Act’s disposal restrictions. To

the contrary, it reinforces the narrowness of those restrictions by eliminating one disposal option, under

which any isolated tracts of the ceded Fort Hall land

would have been readily disposable. Also, unlike the

other statutes that added individual narrow disposal options onto the 1900 Act’s list of permissible disposal options, interpreting FLPMA to amend the 1900 Act would

not merely add a discrete category for disposal of the

ceded Fort Hall lands while leaving Section 5 otherwise

intact. Rather, FLPMA sets forth a comprehensive

framework for land disposal, and its application to the

ceded Fort Hall lands would functionally repeal the 1900

Act’s disposal restrictions by broadly enabling disposal

of the ceded lands for purposes far outside those encompassed within the categories of laws listed in Section 5.

FLPMA’s singular reference to the 1926 Act (which in

turn references the ceded Fort Hall lands) is insufficient

to demonstrate Congress’s intent to wholly repeal the

1900 Act’s disposal restrictions. At most, it creates am-

19a

biguity as to whether FLPMA impliedly repealed Section 5.

That Congress would repeal the 1926 Act but leave

the 1900 Act’s disposal restrictions in place is consistent

with FLPMA’s overarching purpose. With FLPMA’s

enactment, Congress declared a policy that “the public

lands be retained in Federal ownership.” 43 U.S.C.

§ 1701(a)(1) (emphasis added); see also S. Rep. No. 94583, at 24 (1975) (“[T]he Nation has come to regard [federally owned lands] as a permanent national asset

which, for the most part, should be retained and managed.”). Congress’s focus on the retention of public

lands would align with its decision to repeal the 1926

Act, which opened the ceded Fort Hall lands to an additional disposal method, but to keep in place the 1900 Act,

which restricts disposal of the ceded Fort Hall lands.

The history behind FLPMA’s enactment further suggests that Congress did not intend to repeal Section 5’s

disposal restrictions. FLPMA’s enactment followed an

extensive investigation by the congressionally created

Public Land Law Review Commission into the country’s

public-land laws and history. See Paul W. Gates, Pub.

Land L. Rev. Comm’n, History of Public Land Law Development (1968); Pub. Land L. Rev. Comm’n, One Third

of the Nation’s Land (1970). The Commission’s reports

informed FLPMA’s express repeal of many public-land

laws, including the 1926 Act and other statutes that had

applied disposal laws to other ceded Tribal lands. See,

e.g., § 702, 90 Stat. at 2787 (repealing Act of June 13,

1902, ch. 1080, 32 Stat. 384, which had applied homestead laws to former Ute Indian Reservation lands);

§ 703(a), 90 Stat. at 2790 (repealing Act of February 9,

1903, ch. 531, 32 Stat. 820, which had applied townsite

20a

laws to former Tribal lands in Minnesota). The Commission’s careful and extensive investigatory work preceding those repeals suggests that FLPMA’s drafters

would have been aware of the 1900 Act and that their

omission of Section 5 from the list of repealed laws thus

reflects that they chose not to modify it.

b.

The interplay between the 1900 Act and FLPMA is

best understood under the interpretive principle that “a

statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering

a more generalized spectrum . . . ‘[w]here there is no

clear intention otherwise.’ ” Radzanower v. Touche

Ross & Co., 426 U.S. 148, 153 (1976) (quoting Morton v.

Mancari, 417 U.S. 535, 550 (1974)); Nat’l Ass’n of Home

Builders, 551 U.S. at 663 (same). In Radzanower, the

Supreme Court held that a narrow provision in an earlierenacted statute that restricts venue options for lawsuits

against national banks was not effectively repealed by

the later-enacted Securities Exchange Act, which includes a broad provision setting venue rules for securities lawsuits. 426 U.S. at 149-50, 158. The Court reasoned that because the earlier Congress was focused on

the narrow, “particularized problem[]” of determining

venue in suits against national banks and the later Congress was focused broadly on the “objective of promoting fair dealing in the securities markets,” the laterenacted statute “[should] not be considered as intended

to affect the more particular,” earlier-enacted statute,

absent some “clear intention otherwise.” Id. at 153-54

(quotation marks omitted). Based on that interpretation, the Court applied the narrow venue rule and held

that venue was improper even though the later, broader

21a

venue provision would have allowed the suit. Id. at 158.

Similarly, here, because the 1900 Act is narrowly drawn

and specifically applicable to the ceded Fort Hall lands,

and because FLPMA applies broadly to all public lands

and does not reveal a clear intent to repeal the 1900

Act’s restrictions on disposal, FLPMA should not be

read to effectively repeal the 1900 Act’s restrictions,

which continue to govern disposal of the ceded lands.

The principle in Radzanower also distinguishes FLPMA’s

broad mandate from the other statutes that applied narrowly to the ceded Fort Hall lands and amended the 1900

Act by adding discrete options for those lands’ disposal.

National Association of Home Builders provides another application of that principle. There, the Supreme

Court considered whether Section 402(b) of the Clean

Water Act, a specific provision requiring the Environmental Protection Agency to delegate permitting responsibility to state governments that can perform a list

of nine particular functions, was repealed by a laterenacted Endangered Species Act provision that broadly

requires all federal agencies to ensure that any action

they authorize will not jeopardize endangered species.

Nat’l Ass’n of Home Builders, 551 U.S. at 662. The

Court held that the Endangered Species Act’s broad

mandate could not be read to require the Environmental

Protection Agency to determine whether the delegation

of permitting responsibility to a state would jeopardize

any endangered species, because such an interpretation

would “effectively repeal § 402(b)’s statutory mandate

by engrafting a tenth criterion” to its listed set of nine

criteria. Id. at 663. Here, reading FLPMA to apply to

the ceded Fort Hall lands would engraft onto Section 5

an additional—very broad—disposal option that would

22a

effectively subsume Section 5’s restrictions on disposal,

without a clear expression of Congress’s intent to do so.

To argue otherwise, Simplot points to Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428

(1989), where the Supreme Court held that a later statute did impliedly repeal part of an earlier statute. Argentine Republic involved the Alien Tort Statute, which

grants federal district courts jurisdiction over tort actions by noncitizens for violations of international law,

and the later-enacted Foreign Sovereign Immunities

Act of 1976 (“the FSIA”), which governs immunities of

foreign states. Id. at 432-34. The FSIA prohibits jurisdiction over suits against foreign states in some instances where the Alien Tort Statute would permit jurisdiction. See id. The Court concluded that, despite the

FSIA’s lack of any express repeal of the conflicting portions of the Alien Tort Statute, Congress nevertheless

intended that the FSIA be the “sole basis” for obtaining

jurisdiction over foreign states. Id. at 434, 436.

Argentine Republic is of no assistance to Defendants.

There, the Court explained that it was not a case “where

a more general statute is claimed to have repealed by

implication an earlier statute dealing with a narrower

subject.” Id. at 438. Indeed, the later-enacted FSIA

was arguably the narrower statute of the two because

“[t]he Alien Tort Statute by its terms does not distinguish among classes of defendants,” whereas the FSIA

applies only to foreign state defendants. Id. The Court

in Argentine Republic also put diminished weight on the

FSIA’s lack of a clear statement of repeal because, at

the time the FSIA was enacted, no court had yet held

that the Alien Tort Statute conferred jurisdiction in

suits against foreign states. Id. at 436. So, the Court

23a

reasoned, Congress may not have even understood

there to be tension between the statutes. Id. By contrast, the study of land laws preceding the enactment of

FLPMA makes it likely that Congress was aware of the

1900 Act’s restrictions on disposal.

2.

Simplot relatedly argues that even if we conclude

that FLPMA did not repeal the 1900 Act’s restrictions

on disposal, our duty to harmonize statutes requires us

to read FLPMA as creating an additional source of land

disposal authority for the ceded Fort Hall lands. Under

the principle of harmonization, courts cannot “ ‘pick and

choose among congressional enactments’ and must instead strive ‘to give effect to both.’ ” Epic Sys. Corp. v.

Lewis, 584 U.S. 497, 510 (2018) (quoting Morton, 417

U.S. at 551). That principle requires courts to “regard

each [statute] as effective” if they are “capable of coexistence.” Morton, 417 U.S. at 551. In Simplot’s view,

we must harmonize the 1900 Act and FLPMA by reading Section 5 as setting out only the initial disposal options and allowing later-enacted laws like FLPMA to expand disposal authority over the ceded lands.

But harmonizing the 1900 Act and FLPMA does not

require the approach Simplot urges. The 1900 Act’s specific restrictions govern the ceded Fort Hall lands while

FLPMA’s general land disposal rules govern other public lands. That coexistence is consistent with the Supreme Court’s reasoning in Morton, where the Court

held that a statutory provision creating an employment

preference for “qualified Indians” in the Bureau of Indian Affairs could “readily co-exist” with a general statute broadly prohibiting employment discrimination on

the basis of race. Id. at 538, 550. There, the Court viewed

24a

the harmonization principle as preventing it from reading a statute of “general application” to nullify a “specific provision applying to a very specific situation,” absent evidence of congressional intent to nullify the specific provision. Id. at 550-51. Under that same reasoning, we satisfy our duty to harmonize statutes by giving

effect to the 1900 Act’s specific restrictions on disposal

of the ceded Fort Hall lands and FLPMA’s rules for disposal of other lands. Both statutes are valid and “enjoy[]

separate spheres of influence.” Epic Sys. Corp., 584 U.S.

at 503.

Our decision in Blackfeet Indian Tribe v. Montana

Power Co., 838 F.2d 1055 (9th Cir. 1988), does not dictate otherwise. In Blackfeet Indian Tribe, we held that

fifty-year right-of-way easements for natural gas pipelines across a Reservation could be allowed through the

harmonization of two statutes: an earlier statute that

allows the Secretary of Interior to grant oil and gas

rights of way across Tribal lands for a maximum term of

twenty years with the Tribe’s consent, and a later statute that allows the Secretary to grant rights of way

across Tribal lands for any purpose for any length of

time with the Tribe’s consent. Id. at 1056-58. Simplot

contends that Blackfeet Indian Tribe should be read to

allow general statutes to add broader options for the

handling of land than those provided in earlier, specific

statutes. But central to the reasoning in Blackfeet Indian Tribe was that the Tribe’s consent was the key requirement for a right of way to be granted under both

statutes. Id. at 1058. Because, under either statute,

“the Tribe [would] preserve[] its election and its ability

to protect Tribal interests,” the two statutory methods

for granting a right of way could live alongside each

other “while still preserving their sense and purpose.”

25a

Id. By contrast, reading FLPMA to allow additional disposal options would effectively remove the qualifier

“only” from Section 5 and thus would fundamentally alter the 1900 Act’s plain meaning.

3.

The Government next argues that BLM’s authorization of the Exchange under FLPMA is consistent with

the 1900 Act in light of the “reference canon” of statutory interpretation. Under the reference canon, “when

a statute refers to a general subject, the statute adopts

the law on that subject as it exists whenever a question

under the statute arises.” Jam v. Int’l Fin. Corp., 586

U.S. 199, 209 (2019) (citing 2 J. Sutherland, Statutory

Construction §§ 5207-5208 (3d ed. 1943)). The logic of

the canon is that a general reference to a body of law

indicates an intent to continue referencing that body of

law even as it evolves. By contrast, a statute’s specific

reference to another statute by title or number “in effect

cuts and pastes the referenced statute as it existed when

the referring statute was enacted, without any subsequent amendments.” Id. at 209-10. In the Government’s

view, the laws listed in Section 5 of the 1900 Act referenced all federal land disposal statutes and FLPMA

serves as the modern federal land disposal statute, so

disposal of the ceded land under FLPMA is consistent

with the 1900 Act.

But applying the reference canon here does not lead

to the Government’s desired conclusion. As explained in

Part III.A, the 1900 Act’s referenced laws (homestead,

townsite, stone and timber, and mining) are specific categories of land disposal laws that do not comprise the

full body of land disposal laws that existed in 1900. The

list of laws is further rendered exclusive by the limiter

26a

“only.” Thus, the “general subject” to which Section 5

refers is not public-land laws generally but a more limited set of land disposal laws. Id. at 209. No one has

argued that the purpose of the Exchange is related to

homestead, townsite, stone and timber, or mining laws.

Rather, the Exchange’s purpose is to facilitate waste

disposal.

Relying on Jam v. International Finance Corp., the

Government argues that the 1900 Act’s reference to land

disposal laws encompasses FLPMA even though FLPMA

embodied a fundamental change in land management

law. In Jam, the Supreme Court considered a 1945 statute that tied the immunity of international organizations

to the law of foreign-government immunity. Id. at 203.

In 1945 foreign-government immunity was “virtually absolute,” but in 1976 Congress had enacted the FSIA, allowing federal courts to exercise jurisdiction in many more

suits against foreign governments. Id. at 204 (quotation

marks omitted). Despite that substantial interim change,

the Court read the 1945 statute to reference foreigngovernment immunity law in its newer form, encompassing the changes from the FSIA. Id. at 207, 210.

The circumstances of Jam, however, are not analogous to those presented here. The 1945 statute’s reference to foreign-government immunity was expansive

enough to accommodate the FSIA’s transformations to

that body of law. As the Supreme Court explained, the

1945 statute’s specification that international organizations receive the “same immunity . . . as is enjoyed by

foreign governments,” id. at 202 (quoting 22 U.S.C.

§ 288a(b)), was “an instruction to look up the applicable

rules of foreign sovereign immunity, wherever those

rules may be found.” Id. at 211. By contrast, Section 5,

27a

which specifically references “homestead, townsite,

stone and timber, and mining laws,” is not broad enough

in scope to encompass the Exchange.

C.

Any ambiguity as to whether FLPMA repeals or supersedes the 1900 Act’s restrictions on disposal must be

resolved by the Indian canons of construction. The Indian canons are “ ‘rooted in the unique trust relationship’

between the United States and the sovereign tribes, who

stood in an unequal bargaining position” when negotiating treaties and agreements. Makah Indian Tribe v.

Quileute Indian Tribe, 873 F.3d 1157, 1163 (9th Cir.

2017) (quoting Oneida County v. Oneida Indian Nation

of N.Y. State, 470 U.S. 226, 247 (1985)). One longstanding principle of federal Indian law, which we refer to as

the clear statement canon, applies here and dictates that

the 1900 Act’s restrictions on land disposal remain in effect and preclude the Exchange.

Under the clear statement canon, any federal statute

that abrogates a Tribe’s treaty rights must clearly express Congress’s intent to do so. Minnesota v. Mille

Lacs Band of Chippewa Indians, 526 U.S. 172, 202

(1999). “ There must be ‘clear evidence that Congress

actually considered the conflict between its intended action on the one hand and Indian treaty rights on the

other, and chose to resolve that conflict by abrogating

the treaty.’ ” Id. at 202-03 (quoting United States v.

Dion, 476 U.S. 734, 740 (1986)). Although Congress certainly has the power to modify Tribes’ rights, the United

States’ trust responsibility to Tribes requires the

preservation of Tribal rights unless Congress’s contrary

intent is clear and unambiguous. See id.; Oneida, 470

U.S. at 247.

28a

Section 5’s restrictions on land disposal directly bear

on the Tribes’ treaty rights that were reserved in the

1898 Agreement and codified in the 1900 Act. Title IV

of the 1898 Agreement, copied verbatim in the 1900 Act,

states:

So long as any of the lands ceded, granted, and relinquished under this treaty remain part of the public

domain, [the Tribes] . . . shall have the right, without

any charge therefor, to cut timber for their own use,

. . . and to pasture their live stock on said public

lands, and to hunt thereon and to fish in the streams

thereof.

31 Stat. at 674. The 1900 Act thus reserves the Tribes’

usufructuary rights to the ceded lands for as long as the

lands remain public. 12 Indeed, our court has already

recognized those rights: In Swim v. Bergland, 696 F.2d

712 (9th Cir. 1983), we held that the Tribes’ grazing

rights on the original Fort Hall Reservation lands were

established in the 1868 treaty that created the Reservation, and that the 1898 Agreement reserved those continued grazing rights for the Tribes despite the cession

of their possessory rights to the land. Id. at 715-16.

Swim, moreover, observed that by 1898 the Tribes “had

begun to rely on the production of meat” from their

herds grazing on lands ceded in the 1898 Agreement. Id.

at 716. Abrogating those usufructuary rights (by exThe dissent contends that any application of the clear statement

canon would render “Congress’s enactment of the 1904 Act, 1920

Act, 1926 Act, and 1932 Act . . . invalidated,” Dissent at 58, but application of the clear statement canon plainly does not require that

result. The 1904 Act, the 1920 Act, the 1926 Act, and the 1932 Act

all expressly add disposal options to the ceded lands specifically. See

supra pages 21. FLPMA, by contrast, does not do so.

12

29a

panding the methods under which the ceded lands can

be removed from the public domain) would require a

clear expression of congressional intent, which FLPMA

does not provide.

Contrary to Defendants’ contentions, the conditional

nature of the Tribes’ usufructuary rights in the 1900 Act

does not negate the principle that Congress must speak

clearly to abrogate those rights. In Herrera v. Wyoming,

587 U.S. 329 (2019), the Supreme Court rejected an argument that the Crow Tribe’s usufructuary treaty rights

on non-reservation lands—which exist so long as, inter

alia, the relevant lands belong to the United States and

remain unoccupied—were “temporary and precarious”

and thus could be impliedly extinguished upon Wyoming’s statehood. Id. at 340 (quotation marks omitted).

Despite the conditional nature of the Crow Tribe’s usufructuary rights, the Court still looked to whether Congress had expressly abrogated those treaty rights. Id.

at 344-45. Similarly, here, the relevant inquiry is

whether FLPMA provides a clear indication of Congress’s intent to abrogate the Tribes’ usufructuary

rights, which it does not. 13

Other Indian canons of construction instruct that courts should

construe Tribal treaties and agreements, as well as statutes that expressly focus on Native Americans, liberally in favor of Tribes and

resolve all ambiguities in Tribes’ favor. See, e.g., Oneida, 470 U.S.

at 247 (explaining the “well established” principle that Indian treaties should be interpreted liberally in Tribes’ favor); Antoine v.

Washington, 420 U.S. 194, 199 (1975) (applying that same principle

to “statutes ratifying agreements with the Indians”); Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759, 766-68 (1985) (construing

“in favor of the Indians” a statute that authorized mineral leasing of

Indian lands); County of Yakima, 502 U.S. at 269-70 (construing in

Tribes’ favor an ambiguous provision of a Tribal land allotment stat13

30a

D.

Defendants also raise broader practical concerns.

Simplot urges that the Don Plant is “crucial to the Nation’s production of high-quality fertilizer” and that it

needs to acquire the land to continue operations. The

possibilities of negative economic consequences, however, cannot overcome the 1900 Act’s plain meaning. See

McGirt, 591 U.S. at 923 (rejecting the “unspoken message . . . that we should be taken by the ‘practical advantages’ of ignoring the written law”).

The Government argues that ruling in favor of the

Tribes would create the “anomalous” result that the

ceded Fort Hall lands could not be disposed of at all

without congressional action. But our ruling leads to no

such result. Our holding is limited to this particular exchange, and we do not reach whether other instances of

land disposal for purposes related to the laws listed in

the 1900 Act, such as timber or mining, could be permissible. Regardless, as noted above, we are not permitted

to “rewrite the statute that Congress has enacted” to

reach a favored policy outcome. Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 130 (2016) (quoting

Dodd v. United States, 545 U.S. 353, 359 (2005)).

E.

Finally, we address the dissent’s argument that the

foregoing reasoning violates the anti-entrenchment

ute). Those canons would appear to further require that we construe

the 1900 Act in the Tribes’ favor, but we need not even consider them

here because the 1900 Act is clear due to its plain text that it restricts

the disposal options for the ceded Fort Hall lands, and any ambiguity

as to whether FLPMA supersedes the 1900 Act’s restrictions is resolved by the clear statement canon.

31a

principle, which provides that an earlier Congress

cannot enact limitations on the exercise of legislative

power by a future Congress. We disagree that the antientrenchment principle is implicated here.

Faced with statutory provisions seeking to impose

additional procedural requirements on future Congresses,

the Supreme Court has at least sometimes declined to

read those requirements as binding future Congresses.

See, e.g., Dorsey v. United States, 567 U.S. 260, 272-74

(2012). In Dorsey, the Supreme Court considered a law

stating that new criminal statutes that repeal older statutes shall not change the penalties incurred under the

older statutes “unless the repealing Act shall so expressly provide.” Id. at 272 (quoting 1 U.S.C. § 109).

The Court declined to read that law to require an express statement of repeal to change penalties in a new

criminal statute because of the principle that “statutes

enacted by one Congress cannot bind a later Congress.”

Id. at 274. Rather, Congress remained free to modify

the older statutory provisions and “express any such intention either expressly or by implication as it chooses.”

Id.; see also Reichelderfer v. Quinn, 287 U.S. 315, 31718 (1932) (declining to read a statute that “perpetually

dedicated and set apart” land for use as a public park to

prohibit later Congresses from devoting that land to

other uses).

Unlike the relevant statute in Dorsey, the 1900 Act

does not contain any language imposing additional procedural requirements on Congress or otherwise limiting

the ways in which Congress could repeal it in the future.

If Congress had chosen to amend the 1900 Act’s restrictive list, it could have done so without needing to follow

any extra procedures (as it has on several occasions).

32a

See supra Part III.B.1. In FLPMA, however, Congress

did not do so.

Accordingly, our task here is merely to determine

whether the 1900 Act’s list of disposal options for the

ceded Fort Hall lands is restrictive—we conclude that it

is—and whether FLPMA indicates any congressional

intent to repeal or supersede that restrictive list—we

conclude that it does not. The only elements of our analysis that might plausibly implicate a notion of a constraint on Congress are the Indian law canon that requires a clear expression of congressional intent to abrogate a treaty right and the general interpretive canon

that repeals by implication are not presumed unless

Congress’s intent is clear. But requiring courts to examine whether Congress has spoken clearly in a given

context is not what concerned the Court in Dorsey.

Here, there is no binding of a later Congress to some

procedure selected by an earlier Congress as there was

in Dorsey—clear statement canons have nothing to do

with one Congress binding a later Congress at all. And

even if the need to speak clearly could be seen as an additional procedural requirement that Congress must

satisfy, the Supreme Court has long applied the clear

statement canons at issue here without questioning

their legitimacy in light of the anti-entrenchment principle or any other principle. See, e.g., Mille Lacs, 526

U.S. at 202-03 (requiring a clear expression of Congress’s intent to abrogate an Indian treaty right); Herrera, 587 U.S. at 344-45 (same); Radzanower, 426 U.S.

at 154-57 (applying the presumption against implied repeals); Nat’l Ass’n of Home Builders, 551 U.S. at 662-63

(same).

***

33a

Because the 1900 Act precludes the Exchange and

FLPMA does not repeal or supersede the 1900 Act’s restrictions on land disposal, BLM’s authorization of the

Exchange was “not in accordance with law” under the

APA. 5 U.S.C. § 706(2)(A). Given that conclusion, we

need not reach the district court’s alternative grounds

for invalidating the Exchange.

IV.

For the foregoing reasons, we AFFIRM the district

court’s order granting summary judgment to the Tribes.

34a

BUMATAY, Circuit Judge, dissenting:

The three rules of real estate are simple: location,

location, location. That’s as true here as anywhere else.

J.R. Simplot Company, an agribusiness, set its eyes on

a plot of federally owned forest land next to its fertilizer

plant near Pocatello, Idaho. The land is, for Simplot, an

ideal location to store the chemical byproducts of its fertilizer production factory. The added land would allow

the company to continue running its factory for decades,

which is vital to the local and national economy. For others, however, the land is only useful for agricultural, recreational, or wildlife-preserve purposes. So more than

thirty years ago, Simplot proposed an exchange with the

federal Bureau of Land Management. It offered to give

the federal government other parcels of land valuable to

the public in return for the federal land. But this exchange has been mired in litigation ever since. That’s

because the federal land was once owned by the Shoshone-Bannock Tribes (“Tribes”), who seek to stop the

land exchange even though they ceded the property to

the United States over 125 years ago.

This dispute begins and ends with the Federal Land

Policy and Management Act (“FLPMA”), 43 U.S. § 1701

et seq. In 1976, Congress enacted FLPMA to create a

uniform, comprehensive system for disposing of and acquiring public lands. Before FLPMA, an unwieldy

patchwork of laws governed the management of public

lands. Congress then sought to order the chaos.

FLPMA expressly authorizes the exchange of public

land for private land so long as the Bureau “determines

that the public interest will be well served by making

that exchange.” 43 U.S.C. § 1716(a). Because the land

exchange here complied with FLPMA, the district court

35a

should have denied the Tribes’ challenge. It’s that simple.

Rather than straightforwardly applying FLPMA, the

majority concludes that an apparently defunct 1900 statute overrides Congress’s most recent and comprehensive instruction and thus unwinds the land exchange.

The majority essentially freezes turn-of-the-20th-century

law in place and ignores Congress’s will. Never mind

that FLPMA explicitly repealed and replaced a 1926

statute that referenced this land—confirming the statute’s applicability here. The result is that the plot of

Idahoan land must forever remain in the federal government’s hands—unless Congress again acts to reform

public-land laws.

Because FLPMA governs this transaction, I respectfully dissent.

I.

Background

Since 1944, Simplot has owned and operated the

“Don Plant” near Pocatello, Idaho, on privately owned

lands. The Don Plant processes phosphate ore. According to Simplot, the phosphate produced at the plant is

crucial to making high-quality fertilizer and supports

the country’s food supply. But the plant also produces a

byproduct, phosphogypsum—also called just “gypsum.”

Gypsum can’t simply be thrown away because of its mineral content, and so the chemical must be stored in an

onsite facility called a “gypsum stack” or “gypstack.” If

gypstacks run out of space, the plant cannot continue to

operate. In 2020, Simplot projected that the Don Plant’s

gypstack would reach capacity by 2031.

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The solution? Simplot sought new land to expand its

gypstack capacity. By 1994, Simplot had proposed a

land exchange with the Bureau. Simplot identified a

713-acre plot of public land next to the Don Plant that

was well-suited for gypstack expansion. The added land

would extend the Don Plant’s operative life over 50

years—to 2085.

Long ago, this land was part of the Tribes’ Fort Hall

Reservation, which was created in 1868. See Treaty with

the Shoshonees and Bannocks, Art. II, July 3, 1868, 15

Stat. 674 (“Fort Bridger Treaty”). In 1898, the Tribes

ceded that portion of their Reservation to the federal

government. See Agreement with the Shoshonees and

Bannocks, Feb. 5, 1898, Arts. I, IV, 31 Stat. 672, 674

(“1898 Agreement”). The 1898 Agreement granted the

Tribes the right to use the land for certain purposes

“[s]o long as [the ceded Fort Hall lands] . . . remain part

of the public domain.” 1898 Agreement, Art. IV, 31 Stat.

674. The Agreement did not restrict the government’s

ability to dispose of the land. See generally id.

Congress ratified the 1898 Agreement two years

later. Act of June 6, 1900 (“1900 Act”), ch. 813, § 1, 31

Stat. 672, 675. Under the 1900 Act, Congress expressly

commanded that the ceded land “shall be opened to settlement by the proclamation of the President.” Id. at

676. It then established that “the residue of said ceded

lands . . . shall be subject to disposal under the homestead, townsite, stone and timber, and mining laws of the

United States only.” Id. The 1900 Act has other requirements. It sets the price for the sale of land at “two

dollars and fifty cents per acre” of certain “agricultural

land” and “one dollar and twenty-five cents per acre” for

37a

“grazing lands.” Id. It also limits “purchasers” of the

land to no “more than one hundred and sixty acres.” Id.

Fast forward to the present day. After years of environmental assessments and litigation, the Bureau approved the swap in its current form in August 2020. Under the agreement, the Bureau would transfer the 713acres parcel to Simplot, and Simplot would give the government two plots—one 666 acres and another 160

acres—of privately owned land and a cash donation to

the Bureau of Indian Affairs or the Tribes directly.

In accepting the land exchange, the Bureau concluded that the exchange would well serve the public interest. For example, the Bureau noted that the exchange would lead to a net gain of 113 acres of lands

available for exercise of off-reservation tribal treaty

rights. The Bureau also noted that the exchange would

support about 3,763 jobs—generating around $172.7

million in income—and would contribute nearly $768.3

million a year in industrial activity across the region.

To ensure the exchange was fair, the Bureau relied

on a professional third-party appraisal of the land exchange’s market value. The appraisal determined that

the public land’s highest and best use was for “agricultural uses.” Though the appraisal acknowledged Simplot’s unique plans to use the land to expand its gypstack

capabilities, the appraisal didn’t factor that use into its

market-value calculation.

The Tribes sued to challenge the Bureau’s approval

of the exchange under the Administrative Procedure

Act. See 5 U.S.C. § 706(2)(A) (stating that courts may

“set aside” agency action that is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law”). Simplot then intervened. The district court

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held that FLPMA didn’t govern the land exchange and

that the 1900 Act barred the exchange altogether. The

district court held also that the exchange violated the

procedural requirements of FLPMA and the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 432147. Given the remedial difficulty of unscrambling the egg

of an exchange “completed more than two years ago,”

the district court certified its order for immediate appeal and stayed further proceedings pending our decision. We granted Simplot’s petition for permission to

appeal and the Bureau’s cross-petition.

II.

FLPMA Governs the Land Exchange

Under its plain text, FLPMA governs the land exchange between the Bureau and Simplot. It broadly applies to the exchange of all “public lands,” subject to two

narrow exceptions not relevant here. It was thus an error to rule that the land exchange violated the 1900 Act.

While the 1900 Act is another way to dispose of the land

involved in the exchange, it coexists with FLPMA. It

doesn’t in any way limit or supplant FLPMA’s procedures.

A.

In 1964, Congress recognized a problem with federal

public-land laws. In Congress’s view, the then-existing

federal public-land laws were “inadequate” to meet the

“needs of the American people.” Act of Sept. 19, 1964,

Pub. L. No. 88-606, § 2, 78 Stat. 982. That’s because they

“ha[d] developed over a long period of years through a

series of Acts of Congress which are not fully correlated

with each other[.]” Id. Congress found that a “comprehensive review” of the laws was needed. Id. So Congress

39a

established the “Public Land Law Review Commission”

to study the laws and recommend changes to them.

Id. § 3. The Commission’s goal was to reform the laws

for the retention, management, and disposal of public

lands “in a manner [that] provide[s] the maximum benefit for the general public.” Id. § 1.

The result of “more than a decade of studying this

problem” was FLPMA. United States v. Locke, 471 U.S.

84, 87 (1985). Passed in 1976, FLPMA provides a “comprehensive land-management” framework, Bolt v. United

States, 944 F.2d 603, 608 (9th Cir. 1991)—establishing

“uniform procedures” for the disposal and acquisition of

public lands, 43 U.S.C. § 1701(a)(10). In enacting FLPMA,

Congress also repealed hundreds of public-land laws.

See Pub. L. 94-579, 90 Stat. 2743, 2787-91 (October 21,

1976).

FLPMA governs the land exchange for two reasons.

First, FLPMA applies broadly. FLPMA defines “public lands” as “any land and interest in land owned by the

United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the

United States acquired ownership[.]” 43 U.S.C. § 1702(e).

So FLPMA governs all public lands no matter how the

land came into the possession of the federal government

—including cession from Indian tribes.

And FLPMA provides for only two narrow exceptions to the meaning of “public lands”—confirming the

Act’s near universal scope. FLPMA allows one exception for “lands located on the Outer Continental Shelf,”

id. § 1702(e)(1), which are already governed by another

statute, the Outer Continental Shelf Lands Act, 43 U.S.C.

§ 1331 et seq. See Parker Drilling Mgmt. Services, Ltd. v.

40a

Newton, 587 U.S. 601, 606 (2019). A second exception

exists for “lands held for the benefit of Indians, Aleuts,

and Eskimos,” 43 U.S.C. § 1702(e)(2), presumably because those lands cannot easily be disposed of by the

federal government. No other exception applies to the

Act’s “public lands” definition—meaning that FLPMA

applies to all federally owned lands, regardless of

whether existing laws govern the land.

Second, FLPMA facilitates the acquisition and disposal of public lands by expressly approving land exchanges. To begin, the federal government may “acquire” public lands “by . . . exchange” “[n]otwithstanding any other provisions of law.” Id. § 1715(a). Next,

“public land . . . may be disposed of by exchange . . .

under this Act” when it “well serve[s]” the “public interest.” Id. § 1716(a). In considering the “public interest,”

the government must “give full consideration to . . . the

needs of State and local people, including needs for

lands for the economy, community expansion, recreation

areas, food, fiber, minerals, and fish and wildlife.” Id.

FLPMA then mandates that the “values of the lands exchanged” must be “equal, or if they are not equal, the

values [must] be equalized by the payment of money.”

Id. § 1716(b). In the end, the import of these sections is

that the government may exchange land “under this

Act” without regard to “other provisions of law.” See id.

§§ 1715(a), 1716(a).

Given this, FLPMA definitively governs the Bureau’s

approval of this public-land exchange. The federal government owns the plot of land exchanged with Simplot

and no party disputes that the Bureau manages the land.

Id. § 1702(e). It also makes no difference that the land

was once part of the Tribes’ reservation because FLPMA

41a

applies “without regard to how the United States acquired ownership.” Id. Finally, because the Tribes

“cede[d]” the land to “the public domain” over a hundred

years ago, 1898 Agreement, Arts. I, IV, 31 Stat. at 67274, FLPMA’s exception for lands held for the “benefit of

Indians,” 43 U.S.C. § 1702(e)(2), doesn’t apply. Thus, so

long as the government complied with FLPMA’s requirements, the Bureau had authority to dispose of the

exchanged land “under th[e] Act.” See id. § 1716(a).

B.

Despite FLPMA’s plain language, the majority contends that the 1900 Act bars the Bureau from exchanging these lands. Recall that § 5 of the 1900 Act provides

that the lands ceded by the Tribes in 1898 “shall be

opened to settlement . . . and shall be subject to disposal under the homestead, townsite, stone and timber,

and mining laws of the United States only.” 31 Stat. at

676. Based on the solitary word “only,” the majority argues that the 1900 Act supersedes FLPMA simply because FLPMA doesn’t fit into one of the four categories

of law permitting the disposal of the ceded Tribal land.

Even more, the majority would read the 1900 Act as permanently barring any disposal of the ceded Fort Hall

lands under current law. That’s because “Congress has

repealed nearly all the homestead, townsite, stone and

timber, and mining laws,” and so “the federal government does not currently have a viable method for disposing of the ceded lands.” Shoshone-Bannock Tribes

of Fort Hall Reservation v. Daniel-Davis, No. 4:20-cv00553-BLW, 2023 WL 2744123, at *4 (D. Idaho 2023).

Thus, while FLPMA expressly contains only two exceptions to the definition of “public lands,” see 43 U.S.C.

42a

§ 1702(e)(1)-(2), the majority invents a third exception—

one for the Tribes’ ceded Fort Hall lands.

The majority is wrong for several reasons.

1.

First, “courts are not at liberty to pick and choose

among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). Because

FLPMA and the 1900 Act “readily c[an] be seen as supplementing one another,” we must give them both full

effect. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438 (1989). In this case, Congress granted the federal government two independent

ways to dispose of the land involved in the exchange—

the 1900 Act and FLPMA. As complementary grants of

authority to dispose of land, the Bureau could follow either.

Through the 1900 Act, Congress provided one way to

dispose of the Tribes’ ceded territory. Congress devised

four paths to dispose of the land under the 1900 Act—

through “the homestead, townsite, stone and timber,

and mining laws of the United States only.” § 5, 31 Stat.

at 676. The 1900 Act clearly stated its objective—it

“opened” the ceded Fort Hall lands to “settlement.” Id.

Given this language, the word “only” doesn’t permanently encumber the land or disable the federal government from disposing of it under other congressional

grants of authority. Rather, § 5 should be read as a permission to convey the land to settlers using the 1900

Act’s framework. In context then, the word “only” emphasized the federal government’s authority to dispose

43a

of the land under the 1900 Act. But it didn’t restrict the

federal government’s authority to act under future congressional grants of power.

At all times, Congress was free to create new paths

for disposal of public lands, including the ceded land. In

other words, nothing in the 1900 Act abrogated the Bureau’s ability to use future grants of disposal authority

under other types of statutes. “It would be inappropriate to interpret th[e 1900 Act’s] language as being continuously exclusive in nature” in light of later congressional enactments. See Pub. Serv. Co. of Colo. v. FERC,

754 F.2d 1555, 1563 (10th Cir. 1985).

Indeed, even before FLPMA, Congress provided

other ways to dispose of the Tribes’ ceded Fort Hall

lands—supporting the view that the 1900 Act is just one

independent, but non-exclusive, grant of authority. Just

four years after the 1900 Act, Congress removed the

public-auction requirement from “all lands of the former

Fort Hall Indian Reservation” near Pocatello. Act of

Mar. 30, 1904, ch. 854, 33 Stat. 153-154 (“1904 Act”).

Twenty years later, Congress authorized the grant of

“public lands” to the city of Pocatello. See Act of May

12, 1920, 41 Stat. 596-97 (May 12, 1920) (“1920 Act”).

Shortly after that, Congress added another category of

disposal laws “applicable to the ceded lands on the former Fort Hall Indian Reservations”—auction provisions for isolated tracts of public lands. See Act of May

19, 1926, ch. 337, 44 Stat. 566 (“1926 Act”). And then in

the 1930s, Congress included yet another category—

laws for the “sale of desert lands.” Act of May 4, 1932,

ch. 164, 47 Stat. 146 (“1932 Act”). As this shows, the

term “only” in the 1900 Act wasn’t meant to forever preclude other ways to dispose of the ceded Fort Hall lands.

44a

And in FLPMA, Congress expressly created the latest

path for disposal of all public lands, including the Tribes’

ceded land.

So FLPMA and the 1900 Act pose no “irreconcilable”

conflict. See Morton, 417 U.S. at 550. The 1900 Act offers one way to dispose of the ceded land under its narrow grant of authority and FLPMA offers another way

under its broader grant of authority. Under the 1900

Act, the “only” way to dispose of the land was through

the four categories of statutes. Under FLPMA, land can

be exchanged if it “well serves” the “public interest.”

There’s no reason to read a conflict between the two. Indeed, “[w]hen there are two acts upon the same subject,

the rule is to give effect to both if possible.” United

States v. Borden Co., 308 U.S. 188, 198 (1939); see also

Watt v. Alaska, 451 U.S. 259, 267 (1981) (“We must read

the statutes to give effect to each if we can do so while

preserving their sense and purpose.”). Reading them

harmoniously then, we should interpret the 1900 Act and

FLPMA as granting supplemental, but independent, authorities to dispose of the public lands involved in the

exchange. And so the federal government doesn’t violate the 1900 Act when acting under FLPMA’s authority.

Think of it this way. In 1900, Congress gave the federal government the statutory equivalent of a Ford

Model T. At the time, Congress made clear that the

Model T was the only car the federal government could

use. To dispose of ceded Fort Hall lands then, the federal government had to drive the Model T—even though

it was slow and its parts fell into disrepair over time.

But in 1976, Congress bought the federal government a

new car—this time a sleek Mustang. The Mustang is, of

course, much faster and more efficient than the Model T.

45a

So while the Model T may still sit in the garage, nothing

prevents the government from taking the new Mustang

for a spin. Here, the federal government drove the legislative Mustang—FLPMA.

2.

Second, rather than apply the plain meaning of both

statutes, the majority manufactures a clash between the

two—contrary to the rules of statutory interpretation.

By fixating on the word “only,” the majority treats the

1900 Act as an enduring bar on the federal government’s

ability to dispose of the ceded land—even after FLPMA.

In other words, the majority views the 1900 Act and

FLPMA as overlapping restrictions on the federal government, requiring the Bureau to comply with both to

exchange the land.

But that reading conflicts with the plain meaning of

FLPMA. It would be surprising if Congress meant to

frustrate its own authority to facilitate future land exchanges of the ceded land through a lone adverb in a

125-year-old statute. Compare this to other congressional statutes that did seek to bind future Congresses.

See Religious Freedom Restoration Act, 42 USCA

§ 2000bb-3 (“Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such

law explicitly excludes such application by reference to

this chapter.”); Freedom of Information Act, 5 U.S.C.

§ 552(b)(3)(B) (“This section does not apply to matters

that are . . . specifically exempted from disclosure . . .

if that statute . . . specifically cites to this paragraph.”).

Indeed, given that both statutes were enacted to open

the public lands, rather than conceiving of the two laws

as overlapping restraints on the government, the better

reading is to view them as complementary grants of au-

46a

thority empowering the federal government to dispose

of the land. Again, the federal government can drive either the Model T or the Mustang—it needn’t drive both

at once.

Not to mention that it would raise significant constitutional questions for this court, through a clear statement requirement, to argue that the 1900 Congress

barred the 1976 Congress from fully exercising its legislative power. See Dorsey v. United States, 567 U.S. 260,

274 (2012) (“[S]tatutes enacted by one Congress cannot

bind a later Congress.”); Ctr. for Investigative Reporting v. U.S. Dep’t of Justice, 14 F.4th 916, 942 (9th Cir.

2021) (Bumatay, J., dissenting) (“Express-statement

laws are a form of entrenchment: they require a laterenacted law to expressly refer to the prior law if it is to

actually supersede that law.”). So we should avoid applying “a canon of ‘constitutional collision’ ” to the 1900

Act. United States v. Hansen, 599 U.S. 762, 781 (2023)

(simplified). It’s better to read the two statutes as harmoniously conferring separate and independent grants

of authority on the federal government.

3.

Third, the majority invokes the specific-governs-thegeneral canon to argue that the 1900 Act trumps

FLPMA. But the canon isn’t applicable. Under the canon,

“a statute dealing with a narrow, precise, and specific

subject is not submerged by a later enacted statute covering a more generalized spectrum.” Nat’l Ass’n of Home

Builders v. Defs. of Wildlife, 551 U.S. 644, 663 (2007)

(simplified). The specific/general distinction is, however, beside the point. FLPMA doesn’t “submerge” the

1900 Act—both statutes coexist as independent grants

of disposal authority. See Argentine Republic, 488 U.S.

47a

at 438; see also United States v. 103 Elec. Gambling Devices, 223 F.3d 1091, 1101 (9th Cir. 2000) (reading “two

enactments by Congress over thirty-five years apart” to

allow them to “most comfortably coexist, giving each enacting Congress’s legislation the greatest continuing effect”).

Indeed, the canon’s most common application occurs

when there’s “a general prohibition that is contradicted

by a specific permission, or a general permission that is

contradicted by a specific prohibition.” Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 167 (2012); see also Wood v. United

States, 41 U.S. 342, 365 (1842) (holding that the “more

natural, if not the necessary, inference” is that two laterenacted, specific statutes on revenue collection are

simply “auxiliary to . . . the old[er, far more general]

law [on revenue collection], even when” the laws overlap). Here, we don’t have either situation; instead, we

have a “specific permission” (the 1900 Act) followed by

a “general permission” (FLPMA). So we have coexistence—not conflict. Rather than pit the statutes against

each other, we should read them as providing two selfcontained grants of disposal authority. So the Bureau

can follow either the 1900 Act procedures or FLPMA’s

procedures.

And besides, FLPMA does address the Fort Hall

lands, and so the specific-governs-the-general canon

wouldn’t apply. Even if we were to read the 1900 Act as

a specific restriction (as the Tribes argue), FLPMA specifically targets the Fort Hall lands, and so there’s no

conflict between the specific and the general. Instead,

we have two provisions that specifically address the land.

48a

Recall that FLPMA identified and repealed 12 categories of disposal laws to make space for its uniform disposal and planning procedures. See §§ 702, 703(a),

705(a)(2), 90 Stat. 2787-2791, 2793; see also Lujan v.

Nat’l Wildlife Fed’n, 497 U.S. 871, 877 (1990) (“FLPMA

. . . repealed many of the miscellaneous laws governing

disposal of public land . . . and established a policy in

favor of retaining public lands for multiple use management.”). It turns out that the 1926 Act was one of these

statutes. § 703(a)(6), 90 Stat. 2790. And as mentioned

earlier, the 1926 Act’s only effect was to “[e]xtend[]” isolated tract disposal authority “to ceded lands of the Fort

Hall Indian Reservation.” Act of May 19, 1926, ch. 337,

44 Stat. 566. It would blinker reality to deny that this

repeal specifically references the ceded Fort Hall lands.

As a result, the specific-governs-the-general canon

simply can’t apply here. How could it? Underlying that

canon is the assumption that, between a specific and a

general provision, the specific provision “comes closer to

addressing the very problem posed by the case at hand

and is thus more deserving of credence.” Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 (9th Cir. 2016) (quoting Scalia & Garner, Reading Law 183). That assumption is unwarranted where FLPMA’s repeal of the 1926

Act shows “the mind of the legislator [was] turned to the

details” of the Fort Hall lands. Radzanower v. Touche

Ross & Co., 426 U.S. 148, 153 (1976) (simplified). True,

whether a statute’s chosen rule is couched in general or

narrow language can be a helpful proxy for figuring out

which problems Congress addressed through its legislation. But proxies aren’t perfect. See Perez-Guzman,

835 F.3d at 1075 (noting that it is “[s]ometimes . . . difficult to determine whether a provision is a general or a

specific one”) (quoting Scalia & Garner, Reading Law

49a

187). Since Congress confronted “the particularized

problems” of the disposal of the ceded Fort Hall lands

when it repealed the 1926 Act in FLPMA, Radzanower,

426 U.S. at 153, it follows that Congress has expressed

its “clear intention” that FLPMA’s uniform disposal

procedures apply to those lands too, Morton, 417 U.S. at

550. In other words, the Fort Hall lands couldn’t be a

specific case that escaped Congress’s attention when it

enacted FLPMA, because FLPMA explicitly repealed

the 1926 Act—a statute that exclusively regulates the

Fort Hall lands.

FLPMA and the 1900 Act’s common design to open

and distribute federal land distinguishes this case from

the cases applying the specific/general canon cited by

the majority. Take Radzanower. That case involved the

conflict of two dissimilar statutes—one “focused on the

narrow, ‘particularized problem[]’ of determining venue

in suits against national banks” and the other “focused

broadly on the ‘objective of promoting fair dealing in the

securities markets.’ ” Maj. Op. at 24 (quoting Radzanower,

426 U.S. at 153-54). Likewise, National Association of

Home Builders dealt with a conflict between two statutes addressing distinct problems: the Clean Water

Act, which establishes a system “designed to prevent

harmful discharges into the Nation’s waters,” and the

Endangered Species Act, which is “intended to protect

and conserve endangered and threatened species and

their habitats.” 551 U.S. at 650-51. Unlike in those cases,

Congress here confronted the specific issue of disposal

authority over the ceded Fort Hall lands when drafting

both the 1900 Act and FLPMA. See § 703(a)(6), 90 Stat.

at 2790.

50a

In sum, FLPMA’s text and structure show that Congress understood its disposal procedures to apply to

“the very problem posed by the case at hand”—the ceded

Fort Hall lands. See Perez-Guzman, 835 F.3d at 1075.

4.

Fourth, the majority focuses heavily on FLPMA’s

uncodified provision establishing that “[n]othing in this

Act shall be deemed to repeal any existing law by implication.” § 701(f ), 90 Stat. at 2786. Given that FLPMA

expressly repealed hundreds of laws but not the 1900

Act, the majority believes that Congress purposefully

excluded the Fort Hall lands from FLPMA’s land disposal mechanism. But this argument falls flat.

For one, as stated above, FLPMA does specifically

address the ceded Fort Hall lands by repealing the 1926

Act. See § 703(a)(6), 90 Stat. 2790. So this argument

cuts the other way. We can’t ignore that Congress specifically intended FLPMA to govern the ceded Fort Hall

lands when it repealed the 1926 Act, which governed

only those lands. So FLPMA’s repeal of the 1926 Act

settles that Congress contemplated the Fort Hall lands,

along with so many other federal lands, to be subject to

FLPMA’s disposal procedures.

And more to the point, there’s no “clear repugnancy”

between the two statutes requiring a choice between one

or the other. Georgia v. Pa. R. Co., 324 U.S. 439, 456-57

(1945) (“Only a clear repugnancy between the old . . .

and the new [law] results in the former giving way”).

Thus, Congress didn’t need to expressly repeal the 1900

Act. Nor does giving FLPMA full effect implicitly repeal the 1900 Act. To return to the automobile analogy,

Congress’s giving the Bureau the keys to the Mustang

51a

didn’t take away the keys to the Model T. The Model T

remains in the garage—even if it’s broken down.

Even so, the majority would require Congress to expressly repeal the 1900 Act for FLPMA to apply to the

Tribes’ ceded Fort Hall lands. Such a reading eviscerates the plain meaning of FLPMA. Rather than follow

statutory text, the majority would have us consult the

patchwork of public-land laws that FLPMA expressly

tried to reform. And in the majority’s telling, if an arcane law happens to have escaped Congress’s notice,

then that law serves as a living fossil that supersedes

FLPMA’s plain text. But “unawareness” of obscure

public law statutes is not new. See Wilderness Soc. v.

Morton, 479 F.2d 842, 881 (D.C. Cir. 1973). Legislation

is not the esoteric exercise of cataloguing arcane statutes. Congressmen are not archivists. Rather, legislation is about making rules that govern our nation. And

through FLPMA, Congress placed those fossils in a museum—to look and wonder at—but not to govern modern life. And requiring Congress to explicitly reference

the 1900 Act to give FLPMA full effect is merely a “magical password[]” requirement, which has been soundly

rejected. Dorsey, 567 U.S. at 274 (quoting Marcello v.

Bonds, 349 U.S. 302, 310 (1955)).

5.

Fifth, because the plain meaning offers little support,

the majority relies on legislative purpose. The majority

argues that repealing the 1926 Act, but not the 1900 Act,

“is consistent with FLPMA’s overarching purpose.”

Maj. Op. at 22. According to the majority, FLPMA enshrines a federal policy that “the public lands be retained in Federal ownership.” Id. (emphasis omitted)

(quoting 43 U.S.C. § 1701(a)(1)). But the majority ignores

52a

the rest of § 1701(a)(1), which expressly encourages the

disposal of public land if the “disposal of a particular

parcel will serve the national interest.” 43 U.S.C.

§ 1701(a)(1)). Indeed, according to another circuit,

FLPMA just “embodie[d] a congressional intent to centralize and systematize the management of public

lands.” Sierra Club v. Hodel, 848 F.2d 1068, 1082 (10th

Cir. 1988); see 43 U.S.C. § 1701(a)(10) (announcing a congressional policy that “uniform procedures for any disposal of public land . . . be established by statute”).

This proves the “dangers in using supposed purpose

rather than statutory text to interpret the law.” Mi Familia Vota v. Fontes, 129 F.4th 691, 744 (9th Cir. 2025)

(Bumatay, J., dissenting). The Supreme Court has “emphasized many times [that] what Congress (possibly) expected matters much less than what it (certainly) enacted.” Stanley v. City of Sanford, Fla., 145 S. Ct. 2058,

2067 (2025) (simplified). Thus, it is “quite mistaken to

assume . . . that any interpretation of a law that does

more to advance a statute’s putative goal must be the

law.” Id. (simplified). It is even more so the case when

Congress had multiple, sometimes competing purposes.

So the bottom line is that it strains credulity to read

FLPMA as accomplishing federal retention of the Fort

Hall lands only by repealing the 1926 Act—and not

through its uniform disposal procedures—while acknowledging that FLPMA simultaneously accomplishes

the same policy for most other federal land through

those uniform procedures. Congress simply did not make

an idiosyncratic, plot-specific judgment about the procedures applicable to the ceded Fort Hall lands. Instead,

FLPMA’s repeal of the 1926 Act cleared the way for its

uniform procedures to apply to the ceded Fort Hall lands,

53a

along with all the other lands governed by the many

statutes FLPMA repealed. See 43 U.S.C. § 1701(a)(10).

6.

Next, the Indian canon is no help here. Under the

Indian canon of construction, “statutes are to be construed liberally in favor of the Indians, with ambiguous

provisions interpreted to their benefit.” Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). But

before jumping to the canon, two requirements must be

met. See Artichoke Joe’s Cal. Grand Casino v. Norton,

353 F.3d 712, 729 (9th Cir. 2003).

To begin, there must be ambiguity in the statute.

“The canon of construction . . . does not permit reliance

on ambiguities that do not exist; nor does it permit disregard of the clearly expressed intent of Congress.”

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S.

498, 506 (1986); see also Or. Dep’t of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753, 774 (1985) (“[E]ven

though legal ambiguities are resolved to the benefit of

the Indians, courts cannot ignore plain language that,

viewed in historical context and given a fair appraisal,

clearly runs counter to a tribe’s later claims.” (simplified)).

Next, the statute must be “passed for the benefit of

dependent Indian tribes.” Negonsott v. Samuels, 507

U.S. 99, 110 (1993) (simplified); see also Artichoke Joe’s

Cal. Grand Casino, 353 F.3d at 729 (“[T]he presumption

applies only to federal statutes that are ‘passed for the

benefit of dependent Indian tribes.’ ” (simplified)).

The district court applied the Indian canon to the

1900 Act even though it expressly found that “the 1900

Act is not ambiguous.” Shoshone-Bannock Tribes, 2023

54a

WL 2744123, at *5 n.3. That concession immediately

takes this out of the canon’s scope. Further, even if

there were ambiguity, the land-disposal provision of the

1900 Act was not passed for the benefit of the Tribes.

Section 5 was no codification of the Fort Bridger Treaty

or the 1898 Agreement. While the Tribes maintained

use rights over the ceded Fort Hall lands as long as the

land remained in the federal government’s hands, neither the Fort Bridger Treaty nor the 1898 Agreement

provided the Tribes with a say on how the public lands

would be disposed of or conveyed to settlers once the

cession was complete. Rather, the 1900 Act went further than the federal government’s agreements with the

Tribes to set up mechanisms for the disposal of the

ceded land, which did not benefit the Tribes. This also

takes the case out of the canon’s scope. After all, the

canon’s most “basic idea” is that “ambiguous treaty provisions should be construed against the drafting party.”

Arizona v. Navajo Nation, 599 U.S. 555, 572 (2023)

(Thomas, J., concurring). That’s not an issue here.

Perhaps conceding the 1900 Act’s clarity, the majority tries a different take. Instead of an interpretive

canon to help make sense of semantic ambiguity, the majority turns it into a “clear statement canon.” Maj. Op.

at 30. It is true that “Congress . . . must clearly express

its intent to” “abrogate Indian treaty rights[.]” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.

172, 202 (1999). But the majority’s invocation of this

“clear statement canon” is wrong for two reasons. First,

the “clear statement canon” only applies to abrogation

of “Indian treaty rights.” Cf. id. at 202-03 (examining

conflict between 1837 Treaty with the Chippewa and

Minnesota’s enabling Act). And neither the 1900 Act nor

FLPMA abrogate the Tribes’ treaty rights. As just stated,

55a

the 1898 Agreement grants the Tribes’ use rights “[s]o

long as any of the [ceded Fort Hall lands] remain part

of the public domain[.]” Art. IV, 31 Stat. at 674. By its

express terms, any treaty rights terminate when the

ceded Fort Hall lands leave the “public domain.” And

nothing in the 1898 Agreement gives the Tribes the

right to determine whether the ceded Fort Hall lands

remain in the “public domain.” So disposing of the ceded

Fort Hall lands under either the 1900 Act or FLPMA

doesn’t violate any treaty right and the “clear statement

canon” doesn’t apply.

Second, the majority all but concedes that this case

has nothing to do with abrogation of treaty rights. Instead, the majority admits that the only “ambiguity”

here is “whether FLPMA repeals or supersedes the

1900 Act’s restrictions on disposal.” Maj. Op. at 30. So

the only conflict here—and by now this should come as

no surprise—is between the 1900 Act and FLPMA.

That question doesn’t implicate the “clear statement

canon.” Indeed, the majority’s use of the “clear statement canon” proves too much. If Congress needed to

provide any more of a “clear indication” of “intent to abrogate the Tribes’ usufructuary rights,” Maj. Op. at 33,

than its explicit reference to the 1926 Act in FLPMA,

then Congress’s enactment of the 1904 Act, 1920 Act,

1926 Act, and 1932 Act, as well as the repeal of the 1926

Act in FLPMA, would all be invalidated based on the

failure to give a “clear statement.”

For the same reasons, the argument that the land exchange breached the United States’ trust responsibility

to the Tribes fails. As the Tribes acknowledge, to establish a breach of trust, an Indian tribe “must establish,

among other things, that the text of a treaty, statute, or

56a

regulation imposed certain duties on the United States.”

Navajo Nation, 599 U.S. at 563. “[U]nless there is a

specific duty that has been placed on the government

with respect to Indians, the government’s general trust

obligation is discharged by the government’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.” Gros Ventre

Tribe v. United States, 469 F.3d 801, 810 (9th Cir. 2006)

(simplified). As discussed, Section 5 of the 1900 Act

doesn’t grant the Tribes any rights regarding the disposal of the ceded Fort Hall lands. And so, the federal

government complies with its trust obligations by following FLPMA—a generally applicable law.

7.

Finally, the majority downplays our precedent. Almost forty years ago, we encountered a nearly identical

situation to

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