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.
36a
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
38a
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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