# Appendix — South Dakota v. Department of the Interior (No. 05-1428) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0752%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2006 ## Text TABLE OF CONTENTS South Dakota, et al. v. United States Department of the Interior, et al., No. 04-2309, U.S. Court of Appeals for the Eighth Circuit, Sept. 6, 2005 State of South Dakota, et al. v. United States Department of the Interior, et al., No. Civ. 00- 3026-RHB, U.S. District Court for the District of South Dakota, Apr. 19, 2004 Department of the Interior, et al. v. South Dakota, et al., No. 95-1956, U.S. Supreme Court, Oct. 15, State of South Dakota, et al. v. United States Department of the Interior, et al., No. 94-2344- SDRC, Order Denying Petition for Rehearing and Suggestion for Rehearing En Banc, Feb. 2, State of South Dakota, et al. v. United States Department of the Interior, et al., No. 94-2344, U.S. Court of Appeals for the Eighth Circuit, Nov. State of South Dakota, et al. v. United States Department of the Interior, et al., Civ. 92-3023, U.S. District Court for the District of South Da- kota, Memorandum Opinion, Apr. 1, 1994 Memorandum to Deputy Commissioner of Indian Affairs from Assistant Secretary — Indian Affairs, Ratification of Decision dated Apr. 6, 2000, to take approximately 91 acres of land located in Lyman County, South Dakoka [sic], in trust for the Lower Brule Sioux Tribe of Indians of South Dakota (“Tribe”), Jan. 18, 2001 Page TABLE OF CONTENTS - Continued Memorandum to Assistant Secretary — Indian Affairs through Deputy Commissioner of Indian Affairs from Director, Office of Trust Responsibili- ties, Ratification of April 6, 2000, decision to transfer approximately 91 acres of land into trust for the Lower Brule Sioux Tribe, Jan. 18, 2001 ...App. 118 Memorandum to Great Plains Regional Director from Assistant Secretary — Indian Affairs, Request for Off-Reservation Fee-to-Trust Acquisition by the Lower Brule Sioux Tribe of South Dakota for 90.94 Acres in Lyman County, South Dakota, Apr. Memorandum to Assistant Secretary -— Indian Affairs through Deputy Commissioner of Indian Affairs from Director, Office of Trust Responsibili- ties, Request by Lower Brule Sioux Tribe for Off- Reservation Fee-to-Trust Acquisition of approxi- mately 91 Acres of Land in Oacoma, South Da- kota, Apr. 6, 2000 State of South Dakota, et al. v. United States Department of the Interior, et al., No. 04-2309, U.S. Court of Appeals for the Eighth Circuit, Order Denying Petition for Rehearing and for Rehearing En Banc, Feb. 6, 2006 App. 1 423 F.3d 790 United States Court of Appeals, Eighth Circuit. State of SOUTH DAKOTA; City of Oacoma, South Dakota; Lyman County, South Dakota, Plaintiffs/Appellants, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Aurene Martin, Acting Assistant Secretary, Indian Affairs; Bill Benjamin, Acting Regional Director, Great Plains Regional Office, BIA; Cleve Her Many Horses, Superintendent, Lower Brule Agency, BIA; James McDivitt, Deputy Assistant Secretary, Indian Affairs, Defendants/Appellees, Lower Brule Sioux Tribe, Interested Party. No. 04-2309. Submitted: March 14, 2005. Filed: Sept. 6, 2005. Rehearing and Rehearing En Banc Denied Feb. 6, 2006.’ John P. Guhin, argued, Assistant Attorney General, Pierre, SD, for appellant. Thomas L. Sansonetti, argued, Assistant Attorney General, U.S. Department Of Justice, Washington, DC (Judith Rabinowitz, Ellen Durkee and Liss. E. Jones, U.S. Department of Justice on the brief), for appellee. Before WOLLMAN, LAY, and HANSEN, Circuit Judges. WOLLMAN, Circuit Judge. * Chief Judge Loken and Judge Gruender would grant the petition for rehearing en banc. App. 2 The State of South Dakota, City of Oacoma, and Lyman County (collectively referred to as the State) appeal from the district court’s’ grant of summary judgment in favor of the Department of the Interior (the Department), upholding the Secretary of the Interior’s’ decision to use his authority based on section 5 of the Indian Reorganiza- tion Act (IRA), 25 U.S.C. § 465, to take certain land into trust for the Lower Brule Sioux Tribe. We affirm. I. In 1990, the Lower Brule Sioux Tribe sought to have 91 acres of off-reservation land that it had purchased taken into trust. The land is located within the municipal limits of the city of Oacoma, some seven or eight miles south of the Tribe’s reservation and adjacent to Interstate 90 near exit 260. The Department approved its request, and the Interior Board of Indian Appeals dismissed the resulting appeal. The State filed a claim in the district court, seeking review of the Secretary’s action and con- tending that 25 U.S.C. § 465 was an unconstitutional delegation of legislative power. The district court con- cluded that the statute was constitutional, but held that it was without jurisdiction to review the remaining claims and dismissed the case. This court reversed, finding that § 465 constituted an unconstitutional delegation of legisla- tive power. We concluded that the Department had inter- preted its own power too broadly and was exercising that * The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. * The Secretary of the Interior at the time the land was taken into trust was Bruce Babbitt. The current Secretary is Gale A. Norton, who took office January 31, 2001. App. 3 power in an unchecked manner because it had also inter- preted the statute as delegating unreviewable discretion- ary authority to the Secretary. South Dakota v. United States Dep't of the Interior, 69 F.3d 878, 881-85 (8th Cir.1995) (South Dakota I). The Department promulgated a new regulation that provided for judicial review, 25 C.F.R. § 151.12(b), and then petitioned for writ of certio- rari, asking that the United States Supreme Court vacate our decision and remand the case to the Department. The Supreme Court granted the writ and vacated the judg- ment, directing that the matter be remanded “to the Secretary of the Interior for reconsideration of his admin- istrative decision,” Dep’ of the Interior v. South Dakota, 519 U.S. 919, 919-20, 117 S.Ct. 286, 136 L.Ed.2d 205 (1996) (South Dakota IJ), in light of the new regulation allowing for judicial review. Some seven months later, the Department removed the land from trust status. In 1997, the Tribe submitted an amended application to the Secretary, requesting that the United States take the land into trust on the Tribe’s behalf. The Tribe submit- ted a business plan describing its intent to use the land for a cultural center and tourist attraction that would draw tourists to further explore the South Dakota Native American Scenic Byway.’ State’s App. (App.) 82A-82C. The Bureau of Indian Affairs (BIA) gave notice to state, county, and city officials, requesting information and comments. The State responded by raising the following objections: the statute unconstitutionally delegated legislative authority; * The Tribe also attached a comprehensive plan of the goals for the entire corridor of the Native American Scenic Byway that described everything from the vision for the byway to the management and marketing necessary to accomplish it. Supp.App. 112-275. App. 4 the Tribe had not shown its need for the land to be taken into trust; a significant loss in state revenue and numer- ous jurisdictional problems would result if the land were taken into trust; the distance between the land and the reservation counseled against the acquisition; and the land would likely be used for gaming purposes. The city © and county separately objected by alleging that the taking of the land into trust could stifle the growth of the com- munity and affect its income. , In its May 20, 1998, response to the objections, the Tribe asserted that it would benefit from having the land held in trust because of the resulting significant federal protections that would facilitate the growth of tribal industry and would assure tize Tribe’s future generations the continued use of the land. The Tribe also asserted that because the Tribe’s planned use of the land would result in increased tourism, the local governments would suffer no significant revenue loss. The response confirmed that the Tribe’s business plan detailed its specific intentions for the land and stated that the Tribe would not use the land for gaming. The Secretary evaluated the application in accordance with the Department’s regulations, basing his conclusion on the information provided by the parties involved and on internal recommendations from various levels within the Department. The Secretary concluded that it would be appropriate to take the land into trust and published notice in the Federal Register. App. 5 The State again filed suit in federal court to challenge the agency action.” The suit was delayed for the comple- tion of an environmental assessment in accordance with the National Environmental Policy Act, after which the Secretary ratified his decision, finding that taking the land into trust would have no significant impact on the quality of the human environment. The State amended its complaint and filed a motion to supplement the adminis- trative record to provide support for its claim that the Tribe in fact intended to use the land for gaming purposes. The district court denied the motion to supplement the record, finding that the record adequately reflected the facts and concluding that the plaintiffs had not shown bad faith or improper behavior sufficient to justify supplemen- tation. The parties filed cross-motions for summary judgment. The district court granted the Department’s motion, once again finding 25 U.S.C. § 465 to be constitu- tional and holding that the decision to grant trust status was not arbitrary or capricious. South Dakota v. United States Dept of the Interior, 314 FSupp.2d 935 (D.S.D.2004) (South Dakota III). It concluded that the “Secretary's decision satisfactorily addressed all relevant criteria” in its regulations. Jd. at 948. II. We review de novo the district court’s grant or denial of a motion for summary judgment. Children’s Healthcare Is a Legal Duty, Inc. v. De Parle, 212 F.3d 1084, 1090 (8th * In July 2001, the Tribe moved to intervene in the State’s suit. The district court denied the Tribe’s motion for intervention as of right and for permissive intervention, and we affirmed. South Dakota v. United States Dep't of the Interior, 317 F.3d 783 (8th Cir.2003) App. 6 Cir.2000). Viewing the record in the light most favorable to the nonmoving party, we ask whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Id. We also review de novo questions of constitutional law. Coalition for Fair & Equitable Regulation of Docks v. Fed. Energy Regulatory Comm’n, 297 F.3d 771, 778 (8th Cir.2002). A. The State first claims that because 25 U.S.C. § 465 does not delineate any boundaries governing the execu- tive’s decision to acquire land in trust for Indians, it constitutes an unlawful delegation of legislative power in violation of Article 1, Section 1, of the Constitution (“All legislative Powers herein granted shall be vested in a Congress of the United States.”). Congress may delegate its legislative power if it “lay[s] down by legislative act an intelligible principle to which the person or body author- ized to [act] is directed to conform.” J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928). The Supreme Court has given Congress wide latitude in meeting the intelligible principle require- ment, recognizing that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Supreme Court has struck down statutes on delegation grounds on only two occasions. Panama Refin- ing Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). The statutes at issue in those cases were promulgated in a App. 7 unique political climate and delegated to the President exceptionally broad control over the national economy. Section 9(c) of the National Industrial Recovery Act, invalidated in Panama Refining, gave the President blanket authority to prohibit transportation of petroleum; neither its language nor its context provided any criteria to guide the President or required any specific findings before he acted. 293 U.S. at 415-16, 55 S.Ct. 241. Section 3 of the National Industrial Recovery Act, struck down in Schechter Poultry, authorized the President to prescribe and approve mandatory “codes of fair competition” for various industries without additional congressional approval. 295 U.S. at 521-23, 55 S.Ct. 837. The Court warned that “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.” Id. at 537-38, 55 S.Ct. 837. Since 1935, however, the Court has given “narrow constructions to statutory delegations that might other- wise be thought to be unconstitutional.” Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct. 647. The Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474-75, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quotation omitted). The Court has made such narrow constructions by rejecting overly broad interpretations of certain words and giving the words content “by their surroundings.” Id. at 466, 121 S.Ct. 903. The Court has found an intelligible principle, although admittedly broad, even when an act simply stated that an agency should promulgate regulations encouraging the App. 8 effective use of radio in the “public interest, convenience, or necessity,” noting that the meaning of “public interest” was limited in light of the larger aim of the Act. Nat’ Broad. Co. v. United States, 319 U.S. 190, 215-17, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). Broad phrases of purpose in an act are not “utterly without meaning” when viewed in the light of “the purpose of the Act, its factual background and the statutory context in which [the phrases of purpose] appear.” Am. Power & Light Co. v. Securities & Exch. Comm’n, 329 U.S. 90, 104, 67 S.Ct. 133, 91 L.Ed. 103 (1946). Congress fails to give sufficient guidance in its delega- tions only if it “would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.” Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Its will is sufficiently articulated “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” Am. Power, 329 U.S. at 105, 67 S.Ct. 133. The statute does not have to provide a “determinate criterion” for the exercise of the delegated power, as long as a policy is articulated. Whit- man, 531 U.S. at 475, 121 S.Ct. 903. The IRA’s delegation of authority is set forth as follows: The Secretary of the Interior is hereby author- ized, in his discretion, to acquire through pur- chase, relinquishment, gift, exchange, or assign- ment, any interest in lands, water rights, or sur- face rights to lands, within or without existing reservations, including trust or otherwise re- stricted allotments whether the allottee be living App. 9 or deceased, for the purpose of providing land for Indians. 25 U.S.C. § 465. Section 465 also authorizes the allocation of up to two million dollars each fiscal year for that purpose. Jd. The State argues that § 465 provides no practical boundaries to the Secretary's authority and that the statute’s purposes are so broad that they could be construed to justify almost any land acquisition. As indicated above, we previously found § 465 to be unconstitutional, South Dakota I, 69 F.3d 878, concluding that the statutory language contained “no perceptible ‘boundaries,’ no ‘intelligible principles,’” Jd. at 882, a fact that, together with the broad agency interpretation, created “an agency fiefdom whose boundaries were never established by Congress, and whose exercise of unre- strained power is free of judicial review.” Jd. at 885. Judge Murphy dissented, stating that the court had unnecessar- ily reached the constitutional issue instead of reaching the merits of the State’sAdministrative Procedure Act (APA) claim. Jd. at 885. She also concluded that the statute contained boundaries sufficient to bring it within the broad range of acceptable delegations because the statute was confined in scope, its text, when viewed in its histori- cal context, limited the Secretary’s discretion, and its legislative history revealed its purposes. Jd. at 887. Because the Supreme Court vacated our 1995 opinion, we are not bound by its conclusion.® Accordingly, we * The Supreme Court issued what is known as a GVR (granting certiorari, vacating the judgment below, and remanding the case with minimal direction). A GVR does not compel a particular determination or outcome, but occurs often when an intervening development may affect the outcome of the case. See, e.g., Jackson v. United States, (Continued on following page) App. 10 reexamine the broader context of the Act to determine whether the delegation in 25 U.S.C. § 465 includes guid- ance sufficient to withstand a challenge based upon nondelegation doctrine grounds. We may look solely to the language and the context of the statute in determining its constitutionality and may not consider any particular agency interpretation as determinative in our constitu- tional inquiry.’ See Whitman, 531 U.S. at 472, 121 S.Ct. 903 (stating that “[wle have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute”). Whether the agency is reasonably apply- ing its delegated power is an inquiry distinct from the question whether the delegation contains sufficient guid- ance to pass constitutional muster. We will, if possible, give “narrow constructions to statutory delegations,” Mistretta, 488 U.S. at 373 n. 7, 109 S.Ct. 647, and then proceed to evaluate the agency action under the APA. __US. __, 125 S.Ct. 1019, 160 L.Ed.2d 1001 (2005) (issuing a GVR “for further consideration in light of United States v. Booker, 543U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)”); Consolidated Foods Corp. v. Unger, 456 U.S. 1002, 102 S.Ct. 2288, 73 L.Ed.2d 1297 (1982) (“for further consideration in light of Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)”). Cf. Republican Party of Minnesota v. White, 416 F.3d 738, 748 (8th Cir.2005) (en banc). * This principle had not been clearly articulated in the past, as evidenced by our prior opinion and the Department’s argument in its petition for certiorari in this case. The Department asked the Supreme Court to vacate and remand the case because our prior opinion was based in part on the lack of judicial review available under the Depart- ment’s regulations and the fact that the Department had since issued new regulations acknowledging the availability of judicial review. The Department contended that the challenge should be revisited in light of the new regulation. App. 11 We conclude that the purposes evident in the whole of the IRA and its legislative history sufficiently narrow the delegation and guide the Secretary's discretion in deciding when to take land into trust. The IRA, 25 U.S.C. §§ 461- 479, enacted in 1934, “reflected a new policy of the Federal Government and aimed to put a halt to the loss of tribal lands through allotment. It gave the Secretary of the Interior power to create new reservations, and tribes were encouraged to revitalize their self-government.... ” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); see also Chase v. McMasters, 573 F.2d 1011, 1016 (8th Cir.1978) (highlight- ing that the various sections of the act all reflected the purpose of ensuring protection of Indian lands). The Tenth and the First Circuits have both found that § 465 does not violate the nondelegation doctrine. United States v. Roberts, 185 F.3d 1125 (10th Cir.1999); Carcieri v. Norton, 398 F.3d 22 (1st Cir.2005). In Roberts, the Tenth Circuit cited Judge Murphy’s dissent and concluded that the statute places adequate limits on the Secretary's discretion, namely, the requirement that the land be acquired for Indians, the limitation on authorized funds, and the goals identified in the legislative history. 185 F.3d at 1137; see also Carcieri, 398 F.3d at 33-34 (adopting the Roberts court’s reasoning). We agree with the views expressed by Judge Murphy in her dissent in South Dakota I: The scope of the power conferred in § 465 is broad, but — unlike the powers conferred in Panama Refining and Schechter Poultry — it does not involve granting to the executive authority to unilaterally enact a sweeping regulatory scheme that will affect the entire national economy. We believe that it is possible to “ascertain whether the will of Congress has App. 12 been obeyed” when examining an application of the Secre- tary’ authority under § 465 based upon the guidance in the IRA and its legislative history. See Yakus, 321 U.S. at 426, 64 S.Ct. 660. The language of § 465 itself provides guidance. As Judge Murphy stated: It directs that any land acquired must be for In- dians as they are defined in 25 U.S.C. § 479. It authorizes the appropriation of a limited amount of funds with which land could be acquired and specifically prohibits use of such funds to acquire land for the Navajo Indians outside of their es- tablished reservation boundaries in Arizona and New Mexico. South Dakota I, 69 F.3d at 887 (Murphy, J., dissent- ing). The State argues that these claimed textual limita- tions are artificial because any acquisition could be seen as “for Indians,” regardless of who else it harms. Likewise, because most of the land currently taken into trust has been previously purchased by a tribe, the limit on appro- priated funds for purchasing land is irrelevant. We dis- agree that these limitations were meaningless when the IRA was enacted, and we conclude that the context of the entire act and its legislative history continue to give meaning to the phrase “for the purpose of providing land for Indians.” The legislative history of the IRA indicates that “[t]he intent and purpose of the Reorganization Act was ‘to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.’” Mescalero Apache Tribe, 411 U.S. at 152, 93 S.Ct. 1267 (quoting H.R.Rep. No. 1804, App. 13 73rd Cong., 2d Sess., at 6 (1934)). Numerous sections in the act itself and in its legislative history indicate that Congress believed that a critical aspect of that broad goal was “to conserve and develop Indian lands and resources.” H.R.Rep. No. 1804, 73rd Cong., 2d Sess., at 5 (1934) (the first phrase included in the title of the bill); S.Rep. No. 1080, 73rd Cong., 2d Sess., at 1 (1934) (same). The act includes six sections addressed to land policy. 25 U.S.C. §§ 461-466 (providing means to preserve and increase the amount of Indian lands). Representative Howard, the sponsor of the bill in the House of Representatives, de- scribed the tremendous loss of land that resulted from the government’s allotment policy, begun in 1887, 78 Cong. Rec. 11,726 (1934), and indicated that the act would help remedy the problem by preventing “any further loss of Indian lands” and permitting “the purchase of additional lands for landless Indians.” Jd. at 11,727; see also 78 Cong. Rec. 11,123 (June 12, 1934) (statement of Senator Wheeler, sponsor of the bill in the Senate, echoing the remedial goals in relation to Indian lands). Congress believed that additional land was essential for the economic advancement and self-support of the Indian communities. S.Rep. No. 1080, at 2 (stating that section 5 would “meet the needs of landless Indians and of Indian individuals and tribes whose land holdings are insufficient for self-support”); H.R.Rep. No. 1804, at 6 (noting that the purchase of lands would help “[t]o make many of the now pauperized, landless Indians self- supporting”); 78 Cong. Rec. 11,730 (statement of Rep. Howard that section 5 would “provide land for Indians who have no land or insufficient land, and who can use land beneficially”). Although the legislative history fre- quently mentions landless Indians, we do not believe that App. 14 Congress intended to limit its broadly stated purposes of economic advancement and additional lands for Indians to situations involving landless Indians. The House and Senate reports imply that members of Congress believed that that would be the most common application of the statute — giving land to landless Indians would enable them to farm or work in stock grazing or forestry opera- tions — but the statutory language and the expressions of purpose for section 5 in the reports indicate that Congress placed primary emphasis on the needs of individuals and tribes for land and the likelihood that the land would be beneficially used to increase Indian self-support. See, e.g., S.Rep. No. 1080, at 2; 78 Cong. Rec. 11,732 (statement of Rep. Howard that a long-term goal is “to build up Indian land holdings until there is sufficient land for all Indians who will beneficially use it”).° Accordingly, we conclude that an intelligible principle exists in the statutory phrase “for the purpose of providing land for Indians” when it is viewed in the statutory and historical context of the IRA. The statutory aims of provid- ing lands sufficient to enable Indians to achieve self- support and ameliorating the damage resulting from the prior allotment policy sufficiently narrow the discretionary authority granted to the Department. We therefore affirm the grant of summary judgment for the Department on the nondelegation doctrine challenge. * We have also previously concluded that the language and legislative history did not limit the application of § 465 to landless Indians. Chase, 573 F.2d at 1015-16. App. 15 B. We turn, then, to a review of the Secretary’s action approving the taking of the 91 acres into trust. We review the agency action under the APA. 5 U.S.C. §§ 701-706.° “When reviewing the district court’s opinion upholding the administrative agency’s decision, this court must render an independent decision on the basis of the same adminis- trative record as that before the district court.” United States v. Massey, 380 F.3d 437, 440 (8th Cir.2004). We will set aside the agency action if the Secretary acted in a manner that is “arbitrary, capricious, an abuse of discre- tion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). When we apply an agency regulation, “we accord substantial deference to an agency’s interpretation of its own regulation,” unless the regulation violates the Constitution or a federal statute, “or unless the interpreta- tion is ‘plainly erroneous or inconsistent with the regula- tion.’” Coalition for Fair & Equitable Reg., 297 F.3d at 778. As the reviewing court, we engage in a substantial inquiry, based on an examination of the administrative record, in order to answer three questions: (1) whether the Secretary acted within the scope of his authority, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); (2) whether the decision was “based on a consideration of the relevant * Such review of agency action is appropriate in most circum- stances, absent the applicability of two narrow exceptions: where there is a statutory prohibition on review or where agency action is commit- ted to agency discretion by law. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); 5 U.S.C. § 701. Neither of these exceptions applies here. App. 16 factors,” Id. at 416, 91 S.Ct. 814; and (3) whether the Secretary “follow[ed] the necessary procedural require- ments.” Jd. at 417, 91 S.Ct. 814. Here, the Secretary acted within the scope of his authority, for, as quoted above, § 465 specifically authorizes the Secretary to take land into trust for Indians. The more relevant questions on review are whether he considered the relevant factors and followed the necessary procedural requirements. We are to make a searching inquiry into the facts, examining the full administrative record, 5 U.S.C. § 706, but we do not substitute our judgment for that of the agency, South Dakota v. Ubbelohde, 330 F.3d 1014, 1031 (8th Cir.2003), even if the evidence would have also supported the opposite conclusion. Harrod v. Glickman, 206 F.3d 783, 789 (8th Cir.2000). We ask whether the agency “‘articulateld] a rational connection between the facts found and the choice made.’” Ubbelohde, 330 F.3d at 1031 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 288, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)); see also Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (stating that “an agency must cogently explain why it has exercised its discretion in a given manner”). We will not try to identify failures in clarity or detail, State Farm, 463 U.S. at 43, 103 S.Ct. 2856, and will reverse “only when there is no rational basis for the policy choice.” Ubbelohde, 330 F.3d at 1032. In other words, the agency need not exhaustively analyze every factor, but must base its determination “upon factors listed in the appropriate regulations” and must use a “reasonable interpretation of the regulation and the statute” in reaching its conclusion. Harrod, 206 F.3d at 788. The burden is on the plaintiff to App. 17 prove that the agency’s action was arbitrary and capri- cious. Massey, 380 F.3d at 440. The State challenges the adequacy of the Depart- ment’s consideration of several of the required factors. In order to meet its burden of proof, however, it must present evidence that the agency did not consider a particular factor; it may not simply point to the end result and argue generally that it is incorrect. The regulations established by the Department to implement the IRA are binding, and they establish the process that the Secretary must follow in deciding whether to take land into trust, 25 C.FR. §§ 151.10 and 151.11, thereby guiding our inquiry. For an off-reservation acquisition, described in 25 C.F.R. § 151.11, the Secretary must consider all but one of the factors in 25 C.F.R. § 151.10 (considerations for on- reservation acquisitions) plus three additional considera- tions. The State claims that the following criteria in § 151.10 were not properly considered: (b) The need of the individual Indian or the tribe for additional land; (c) The purposes for which the land will be used; (e) If the land to be acquired is in unrestricted fee status, the impact on the State and its politi- cal subdivisions resulting from the removal of the land from the tax rolls; (f) Jurisdictional problems and potential con- flicts of land use which may arise. The State also argues that § 151.11(b) was not ade- quately analyzed. This provision states: (b) The location of App. 18 the land relative to state boundaries, and its distance from the boundaries of the tribe’s reservation, shall be consid- ered as follows: as the distance between the tribe’s reser- vation and the land to be acquired increases, the Secretary shail give greater scrutiny to the tribe’s justification of anticipated benefits from the acquisition. ... The record reveals that the Department extensively reviewed the Tribe’s application and the objections raised in the State’s response. In light of the complex history of the case, the Secretary’s final decision was issued by the Assistant Secretary of Indian Affairs rather than by the BIA’s Regional Director. The Regional Director had rec- ommended final approval, stating that the Tribe would greatly benefit economically and setting forth a brief review of each of the relevant provisions in 25 C.F R. §§ 151.10 and 151.11. App. 227-33. The Acting Deputy Commissioner of Indian Affairs noted several deficiencies in the application and asked the Regional Director for a more detailed analysis of several factors. Id. at 234-35. The Regional Director submitted another memorandum and reconfirmed her recommendation. Jd. at 236-39. The Director of the Office of Trust Responsibilities, through the Deputy Commissioner of Indian Affairs, then provided a memorandum in support of the Assistant Secretary’s decision to take the land into trust that included a detailed analysis of the factors in the regulations. Jd. at 242-48. We conclude that the Secretary reasonably and appropriately evaluated the relevant factors. The agency “articulate[d] a rational connection between the facts found and the choice made,” Ubbelohde, 330 F.3d at 1031 (quotation omitted), for each of the regulatory provisions, and we do not require precise explanations that respond to every contention. The record supports the conclusion that App. 19 the expressed rationale in the Secretary’s conclusions was consistent with the facts. In analyzing the Tribe’s need for the additional land, 25 C.F.R. § 151.10(b), the Regional Director expressed her belief that the particular tract of land would greatly enhance the Tribe’s economic base and its ability to be self- sufficient, thereby serving the purposes of the IRA. App. 236-37. The memorandum accompanying the final decision also emphasized that the Tribe had great need for addi- tional income and stated that “[t]he location of the land, adjacent to Interstate No. 90, makes it more attractive to business and would enhance the tribes [sic] economic rehabilitation and support self sufficiency.” Jd. at 245. The Tribe asserted that the protections of trust status were essential to facilitate growth in tribal industry and ensure the use of the land for future generations. Jd. at 192. We agree with the district court that it would be an unreason- able interpretation of 25 C.F.R. § 151.10(b) to require the Secretary to detail specifically why trust status is more beneficial than fee status in the particular circumstance. South Dakota III, 314 F.Supp.2d at 943. It was sufficient for the Department’s analysis to express the Tribe’s needs ana conclude generally that IRA purposes were served. Its conclusion that the Tribe needed the land to be taken into trust was therefore reasonable. The Tribe made its purpose for the land clear through its business plan and the comprehensive plan for the entire corridor of the Native American Scenic Byway. It expressed its intent to establish a means of attracting heritage tourism to its reservation by building an informa- tion center and southern terminal entrance to the Native American Scenic Byway on the 91l-acre parcel. App. 82C. The business plan described a display that would include a App. 20 “circle of teepees” to represent the seven Sioux tribes located within South Dakota and that would attract visitors to the historical byway. Jd. It was reasonable for the Secretary to accept the Tribe’s representations in his analysis of 25 C.F.R. § 151.10(c). Id. at 246. In addition, the Secretary was not required to seek out further evi- dence of possible gaming purposes in light of the Tribe’s repeated assurances that it did not intend to use the land for gaming” and the December 15, 1998, letter from then- Governor Janklow that expressed his support for the acquisition and which stated that he had been assured “that the Tribe [would] not conduct gaming” on the land. Id. at 204. Because the Tribe owned the land in unrestricted fee status prior to its application for trust status, the Secre- tary also evaluated the impact of the loss of taxes on the State in accordance with 25 C.F.R. § 151.10(e). The Secre- tary found that the county and city would lose $2,587.02 in taxes, and expressed his belief that the amount was insignificant in light of the great benefit to the Tribe." /d. at 238, 246-47. The State argues that its potential loss would be much higher if the land, which currently houses no businesses, were developed, and contends that the Secretary should have to consider such potential loss. We "* The Tribe also acknowledged that if it were later to seek to allow gaming on the land, it would fully comply with the additional applica- tion and approval requirements in the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721. App. 197-98. " The Tribe additionally asserted that it expected its plan to increase tourism in the area and therefore believed that the city’s businesses would benefit from the increased traffic, offsetting “any loss in property taxes” resulting from the land being taken into trust. App. 241. App. 21 disagree, and we adopt the district court’s reasoning that it is a reasonable interpretation of the regulation to require consideration of the tax impact only in relation to the manner in which the land was being used at the time of the application. South Dakota III, 314 F.Supp.2d at 945. It was also appropriate for the Secretary to conclude that no serious jurisdictional problems were likely to result from taking the land into trust. The Secretary appropriately considered the availability of law enforce- ment services, noting that the BIA would provide such services, as it does within the Lower Brule Reservation, and indicating that the Tribe had expressed its intent to pay for any additional services received from the City of Oacoma. App. 238, 247. Moreover, we cannot say that it was inappropriate for the Secretary to take into account the fact that apparently no jurisdictional problems had resulted from the Tribe’s acquisition in 1995 of some 3,400 acres of land lying west of the Lower Brule Reservation. Id. at 247. Finally, although the memoranda did not specifically mention 25 C.F.R. § 151.11(b), the provision concerning the location of the acquired land in relation to state and tribal boundaries, we cannot say that the Secretary failed to consider it. The distance between the reservation and the 91 acres is not so great as to make the land’s connection to the reservation illogical or to require more exacting scrutiny of the Tribe’s intent. As indicated earlier, the property is located some seven to eight miles south of the Tribe’s reservation. That distance, considering the circum- stances of rural central South Dakota, is of no great significance, and the tract’s location in close proximity to Interstate 90, the major east-west route across the state, holds the greatest potential for the accomplishment of the App. 22 Tribe’s goals. The Secretary acknowledged the distance of the land from the exterior boundaries of the reservation, and his discussion of the location of the property reflected his adequate consideration of § 151.11(b). Accordingly, we conclude that the Secretary’s action was not arbitrary, capricious, or an abuse of discretion, and we affirm the grant of summary judgment in favor of the Department. ITI. In addition to claiming that the Secretary acted arbitrarily, the State also raises a separate claim that the district court erred in not allowing supplementation of the record with evidence that the Tribe’s actual intended use for the property is that of conducting gaming operations. We will defer to the district court’s conclusion that the administrative record contained sufficient information “absent a gross abuse of discretion.” Voyageurs Nat'l Park Ass’n v. Norton, 381 F.3d 759, 766 (8th Cir.2004). The State argues that the district court could not determine whether the agercy properly analyzed the factors without examining the State’s proffered additional evidence. “A federal court is confined to the administrative record in deciding an appeal under the APA,” Maxey v. Kadrovach, 890 F.2d 73, 77 (8th Cir.1989); see also Newton County Wildlife Assoc. v. Rogers, 141 F.3d 803, 807 (8th Cir.1998), in order to “preclude[] the reviewing court from conducting a de novo trial and substituting its opinion for that of the agency.” Voyageurs, 381 F.3d at 766. The very narrow exceptions to this rule “apply only under extraordinary circumstances” in which a strong showing can be made that the record is so incomplete as to preclude effective App. 23 judicial review or that there is clear bad faith or improper behavior. Jd. No such extraordinary circumstances are present here. The State has failed to show that the Secretary’s actions evidenced bad faith sufficient to justify the sup- plementation. If there is any evidence of bad faith at all, it “falls short of the strong showing of bad faith or improper behavior necessary to permit discovery and supplementa- tion of the administrative record.” Maxey, 890 F.2d at 77. In his September 25, 1997, letter to the BIA, the Tribal Chairman stated that it was not the Tribe’s current intention to use the land for gaming. The letter further stated that if gaming was eventually considered, “our Council has passed a resolution indicating that we would adhere to the provisions of the Indian Gaming Regulatory Act (IGRA).”” App. 82. As. indicated above, the Tribe’s December 1997 business plan for the land more specifi- cally detailed its purposes and intended use for the land. Likewise, in its May 20, 1998, response to the State’s objections, the Tribe reasserted its commitment not to use the land for gaming, again noting that IGRA ensured that it could not change its mind without additional state and federal approval. Jd. at 197. We conclude that the district court did not err in finding that the Tribe’s consistent representations that it did not intend to use the land for gaming constituted * IGRA establishes that a tribe must meet additional requirements before it may use off-reservation land for gaming purposes. 25 U.S.C. § 2719. Even if the tribe obtained the land in trust for a non-gaming purpose and then changed its mind, it would still have to comply with the requirements detailed in IGRA before it could do so. /d.; see also 64 - Fed.Reg. 17,578 (Apr. 12, 1999). App. 24 sufficient evidence to support the Secretary’s conclusion in that regard and that there was thus no need to supple- ment the record. The judgment is affirmed. App. 25 314 F.Supp.2d 935 United States District Court, D. South Dakota, Central Division. State of SOUTH DAKOTA, City of Oacoma, and Lyman County, Plaintiffs, v. UNITED STATES DEPARTMENT OF the INTERIOR; Aurene Martin, Acting Assistant Secretary-Indian Affairs; Bill Benjamin, Acting Regional Director, Great Plains Regional Office, BIA; and Cleve Her Many Horses, Superintendent, Lower Brule Agency, BIA, Defendants. No. CIV. 00-3026-RHB. April 19, 2004. John Pl. [sic] Guhin, Pierre, SD, Paul E. Jensen, Oacoma/Lyman Co., Winner, SD, for Plaintiff. Cheryl Schrempp Dupris, Pierre, SD, Judith Rabi- nowitz, Juneau, AK, for Defendant. MEMORANDUM OPINION AND ORDER BATTEY, District Judge. The state of South Dakota, city of Oacoma, and Lyman County (“plaintiffs”), filed suit in this Court seeking declaratory and injunctive relief to prevent the defendants (“Interior”) from taking a 91-acre parcel of land (“Oacoma parcel”) into trust for the Lower Brule Sioux Tribe (“the Tribe”) pursuant to Section 5 of the Indian Reorganization Act of 1934 (“IRA”), 25 U.S.C. § 465. Plaintiffs claim that the unfettered authority bestowed upon the Secretary of the United States Department of the Interior (“Secretary” or “Agency”) via 25 U.S.C. § 465 equates to an unconstitu- tional delegation of legislative authority to the executive App. 26 branch. In the alternative, plaintiffs contend that the decision to take the Oacoma parcel into trust was arbi- trary and capricious because the Agency failed to consider the requisite factors as listed in 25 C.F.R. pt. 151. Interior argues that 25 U.S.C. § 465 is constitutional because the text and underlying policy of the statute establish sufficient boundaries on the Secretary’s discre- tion and intelligible principles for courts to consider when reviewing a decision by the Secretary under Section 5. Interior also maintains that the decision was a reasonable one made after considering all relevant factors. Accord- ingly, Interior asks the Court to declare § 465 constitu- tional and affirm the Agency’s decision to take the Oacoma land into trust. PROCEDURAL HISTORY In 1990, the Tribe filed an application with the Secre- tary to have the Oacoma parcel taken into trust pursuant to 25 U.S.C. § 465. The Tribe’s application was subse- quently approved. The state of South Dakota and city of Oacoma appealed the decision to the Interior Board of Indian Appeals; however, the appeals board dismissed the appeal claiming it lacked jurisdiction to review decisions of the Assistant Secretary — Indian Affairs. On November 30, 1992, the Oacoma parcel was transferred into trust for the Tribe. After the adverse decision by the Interior Board of Indian Appeals, the state and city filed suit in this Court requesting review of the Agency’s decision. This Court determined that it was without jurisdiction to review the decision for the reason that the Quiet Title Act, 28 U.S.C. § 2409a, forbids suits under the Administrative Procedures App. 27 Act, 5 U.S.C. § 706, when plaintiffs, who do not claim a property interest in land, seek review of a decision of the Secretary to take land into trust for Indians pursuant to 25 U.S.C. § 465. South Dakota v. United States Dep’t of the Interior, CIV. 92-3023 (D.S.D.1994). This Court also concluded that 25 U.S.C. § 465 was not an unconstitu- tional delegation of legislative power to the executive branch. The state and city then appealed that decision to the Eighth Circuit Court of Appeals. The Eighth Circuit panel, in a plurality opinion with Judge Diana Murphy writing a dissenting opinion, determined that 25 U.S.C. § 465 equated to an unconstitutional delegation of legisla- tive power and reversed this Court’s decision. South Dakota v. United States Dep’t of the Interior, 69 F.3d 878 (8th Cir.1995) (““Oacoma I”). Interior then filed a petition for a writ of certiorari with the United States Supreme Court. The Supreme Court granted Interior’s writ, vacated the decision of the Eighth Circuit, and remanded the matter back to the Secretary in light of Interior’s enact- ment of regulations specifically permitting judicial review of agency decisions that take land into trust for Indians. United States Dep't of Interior v. South Dakota, 519 U.S. 919, 117 S.Ct. 286, 1386 L.Ed.2d 205 (1996); see 25 C.F.R. § 151.12(b) (stating that title will not transfer for 30 days when the Secretary decides to take land into trust). On December 18, 1996, the Eighth Circuit recalled its man- date, vacated its earlier judgment, and remanded the matter to this Court. South Dakota v. United States Dep't of the Interior, 106 F.3d 247 (8th Cir.1996). On December 24, 1996, this Court, complying with the Circuit Court’s order, remanded the matter to the Agency for reconsidera- tion of its decision. Accordingly, the Oacoma parcel was removed from trust status effective December 24, 1996. App. 28 FACTS On September 9, 1997, the Tribe issued Resolution 97- 408 requesting that Interior take the Oacoma parcel into trust. Administrative Record (“AR”) 17. A copy of the resolution was forwarded to the Office of the Solicitor in Washington, D.C., however, a letter by Interior indicated the Tribe needed to complete an amended resolution setting forth the purposes for which the land will be used. AR 20. A supplemental resolution was issued on Septem- ber 25, 1997, stating that the Oacoma land will be used “to enhance the economic development of the tribe, and to provide a nexus to the Oacoma area which is of historical importance to the tribe.” AR 29. On February 12, 1998, the acting superintendent of the Bureau of Indian Affairs (“BIA”), Lower Brule Agency, sent letters to plaintiffs notifying them that the Tribe submitted an application to have the Oacoma parcel placed in trust and solicited comments from plaintiffs on the application. AR 311-21. On March 13, 1998, the state issued a letter in opposition to the Tribe’s application. AR 326-618. The city and county submitted a similar letter on that same date. AR 619-744. The Tribe then issued a letter to the acting superintendent in response to plaintiffs’ letters. AR 774-822. On June 30, 1999, the regional director of the Great Plains Regional Office of the BIA Office of Trust Responsi- bilities, recommended that the acting secretary place the Oacoma parcel in trust status. AR 837. Upon review, however, the regional director noted that there were numerous deficiencies in the Tribe’s application. AR 930- 44. To this end, the BIA informed the regional director that additional information and further elaboration on App. 29 various factors was needed before the BIA could process the Tribe’s application. AR 1259-60. On February 18, 2000, the regional director issued a memorandum decision purporting to comply with the BIA’s request for additional analysis of the Tribe’s application. AR 1271-74. The re- gional director also recommended the deputy commis- sioner of indian affairs grant trust status to the Oacoma parcel. Jd. Finally, after requesting and receiving addi- tional information relevant to the application, the BIA issued a memorandum substantively addressing the 25 C.F.R. pt. 151 factors that the Secretary is required to evaluate when considering whether an application for fee- to-trust status should be granted. AR 1391-97. In concur- rence, the deputy commissioner determined that title to the Oacoma parcel should be transferred to the United States in trust for the Tribe. AR 1397. On May 18, 2000, Interior published in the Federal Register notice of its intent to transfer the Oacoma parcel into trust for the Tribe. AR 1409-10; see 65 Fed.Reg. 31,594 (Dep't of the Interior May 18, 2000). On June 16, 2000, plaintiffs filed suit against Interior, requesting declaratory and injunctive relief to prevent transfer of the property into trust for the Tribe. AR 1421- 44. After litigation commenced, this Court stayed the matter pending completion of an environmental assess- ment. On December 14, 2000, in accordance with the environmental assessment, the deputy commissioner issued a finding of no significant impact (“FONSI”). AR 1484. A Notice of Availability was then posted at the Tribe’s office and published in The Chamberlain-Oacoma Register weekly newspaper. AR 1551, 1553. On January 18, 2001, the deputy assistant secretary ratified its earlier decision to include information on the environmental App. 30 assessment and FONSI. AR 1559. The notice of ratification decision was published in the Federal Register on January 26, 2001. AR 1566-67. On March 19, 2001, plaintiffs submitted an amended complaint. Then, on July 23, 2001, the Tribe filed a motion to intervene in this matter. This Court denied the Tribe’s motion to intervene. The Tribe appealed that Order and the denial of intervention was affirmed by the Eighth Circuit Court of Appeals. South Dakota v. United States Dep't of the Interior, 317 F.3d 783 (8th Cir.2003). Plaintiffs filed a motion for summary judgment on June 16, 2003. Interior filed a cross-motion for summary judgment on December 15, 2003. On January, 21, 2004, the Tribe filed a brief of amicus curiae in support of Interior’s motion for summary judgment. SUMMARY JUDGMENT STANDARD Under Rule 56(c) of the Federal Rules of Civil Proce- dure, a movant is entitled to summary judgment if the movant can “show that there is no genuine issue as to any material fact and that [the movant] is entitled to a judg- ment as a matter of law.” In determining whether sum- mary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or App. 31 other evidence must set forth specific facts showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356. “Only disputes over facts that. might affect the out- come of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson uv. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Supreme Court has instructed that “[s)ummary judgment procedure is prop- erly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inex- pensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (citations omitted). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” and “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genu- ine issue for trial.’” Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (citation omitted). The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992), where the Court said, “Matsushita demands only that the nonmoving party’s inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articu- lated, in that decision.” The Court expounded on this notion by reiterating its conclusion in Anderson that, “{slummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Eastman Kodak, 504 U.S. at 468 n. 14, App. 32 112 S.Ct. at 2083 n. 14 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). To survive summary judgment the evidence must reasonably tend to prove the plaintiff’s theory. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768, 104 S.Ct. 1464, 1473, 79 L.Ed.2d 775 (1984). DISCUSSION Plaintiffs have raised two issues for review by the Court: (1) whether the decision to grant trust status was arbitrary and capricious; and (2) whether Section 5 of the IRA, 25 U.S.C. § 465, is an unconstitutional delegation of legislative authority. Interior disputes plaintiffs’ claims. The Court treats the claims in plaintiffs’ amended com- plaint that were not addressed in the summary judgment briefs as conceded. ARBITRARY AND CAPRICIOUS This Court reviews agency action under the Adminis- trative Procedures Act to determine whether it is “arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1994). When determining whether an agency’s decision is arbitrary and capricious the Eighth Circuit has stated: [T]he court must consider whether the decision was based on a consideration of the relevant fac- tors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate stan- dard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. App. 33 South Dakota v. Ubbelohde, 330 F.3d 1014, 1031 (8th Cir.2003) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 214, 823-24, 28 L.Ed.2d 136 (1971), overruled on unrelated grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977)). In order for the agency’s decision to pass scrutiny it must explain a rational connection between the choice made and the facts found. Jd. (citations omitted). “[A] court may find an action to be arbitrary and capricious only when there is no rational basis for the policy choice.” Jd. at 1032. 25 C.F.R. § 151.1 “set[s] forth the authorities, policy, and procedure governing the acquisition of land by the United States in trust status for individual Indians and tribes.” The relevant section of these regulations is 25 C.F.R. § 151.11, which deals with off-reservation acquisi- tions of land. Section 151.11 sets forth the criteria the Secretary must consider when determining whether a request for the acquisition of land in trust should be granted. It also expressly incorporates for consideration several of the criteria listed in § 151.10. See 25 C.F.R. § 151.11(a) (indicating that the criteria listed in § 151.10(a) through (c) and (e) through (h) shall also be considered by the Secretary). Plaintiffs object to the Agency’s decision to grant that Tribe’s application for a variety of reasons. These objec- tions include: (1) the analysis of the criteria listed in 25 C.F.R. §§ 151.10 and 151.11 was flawed because it failed to address relevant evidence and failed to explain how the facts found supported the choice made, (Pls.’ Br. Supp. Summ. J. at 34); (2) the decision failed to discuss § 151.3(A)(3), which in this case specifically pertains to the finding that acquisition of the land will facilitate economic App. 34 development of the Tribe, Jd. at 53; (3) the decision was a clear error in judgment, Jd. at 54; (4) the decision failed to adhere to the process which was promised to the Supreme Court, Jd. at 55; (5) the construction of the Circle of Tipis obviates the need to place the land in trust status, Id. at 60; and (6) there is no evidence supporting the decision to place in trust status the acreage in excess of the nine acres on which the Circle of Tipis sits, Jd. Interior contends the Agency’s decision was reasonable and is supported by both the memorandum decision and the Administrative Record. (Defs.’ Mem. Opp. Summ. J. at 1-24.) 25 C.F.R. § 151.10(b) Subsection 151.10(b) states that the Secretary shall consider “(t]he need of the individual Indian or the tribe for additional land.” The Secretary indicated that the Tribe needed the Oacoma parcel “to diversify the tribe’s economic development, expand their [sic] trust land base, and to generate much needed income for the Lower Brule Sioux Tribe for use in providing services to tribal mem- bers.” AR 1394. The Secretary further said that the land currently encompassed by the Lower Brule Sioux Indian Reservation: (1) is diminished in size from what it once was; (2) includes approximately 27,137 acres of wasteland; and (3) includes approximately 40,000 acres of land owned by non-Indians. Jd. The Secretary also noted that the Oacoma parcel is “more attractive to business[es] and would enhance the tribe[’]s economic rehabilitation and support self-sufficiency.” Jd. Plaintiffs argue, however, that the analysis of this criterion was incomplete because the Secretary failed to discuss why the Tribe needs to hold the Oacoma parcel in trust. App. 35 Plaintiffs assert that “25 C.F.R. § 151.10(b) demands that the ‘Governing Decision’ consider the ‘need of the tribe for additional land’ to be in trust.” (Pls.’ Br. Supp. Summ. J. at 39.) They further claim that the Tribe already owns the land in fee and that form of ownership is suffi- cient for the purposes in which they plan to use the land. (Pls.’ Br. Supp. Summ. J. at 39.) In reading § 151.10(b), however, there is no mention of the word “trust,” nor is there any indication that the Secretary must evaluate an applicant’s request in such a manner. Plaintiffs are essentially arguing that the Secretary's decision should be reversed because it fails to discuss the benefits of holding land in trust, as opposed to fee, status. The IRA, which authorizes the United States to acquire land in trust for Indians, was enacted for the very reasons plaintiffs want explained. Most notably, it was enacted “to safeguard Indian lands against alienation from Indian ownership and against physical deterioration.” H.R. 7902, 73rd Cong., tit. ITI, § 1 (1934); see also Chase v. McMasters, 573 F.2d 1011, 1016 (8th Cir.1978) (stating the purpose of the IRA is to rehabilitate the Indian’s economic viability and halt the loss of their lands that occurred as a result of an inability to manage allotted land). Plaintiffs expansive reading of §151.10(b) is unpersuasive. Regulation § 151.10(b) requires that the Secretary must merely explain why the Tribe needs the additional land. As indicated above, and as evidenced in the Secretary’s decision, the Secretary listed several reasons why the Tribe needs the Oacoma parcel. To require the Secretary to discuss the history and purpose of the IRA each time the United States is requested to take land into trust for an individual Indian or tribe is not required and would be unnecessary. Thus, the memorandum decision satisfactorily App. 36 indicates that the Secretary reasonably considered the criterion listed in § 151.10(b). There is a rational basis for this decision. 25 C.F.R. § 151.10(c) Subsection 151.10(c) states that the Secretary shall consider “[t]he purposes for which the land will be used.” The Secretary stated that the land was originally sched- uled to promote economic development through the con- struction of an industrial park. AR 1395. The Tribe has since proposed that the land will be used as a Native American Scenic Byway (“Byway”). Id. The opinion also notes that the Tribe submitted a business plan for the Byway project and that the Tribe is awaiting federal funding. Jd. Plaintiffs argue that the Secretary’s discus- sion of subsection (c) is deficient because it did not address contentions submitted by plaintiffs and because “it did not consider the high probability that the tribe plans to use the land for gambling.” (Pls.’ Br. Supp. Summ. J. at 44-47.) On December 15, 1998, the Honorable William Jank- low, then Governor of the State of South Dakota, sent a letter to the Secretary stating that he supports the Tribe’s new business plan in light of its assurances that it would not conduct gaming on the Oacoma parcel. AR 827. The Secretary made note of this letter in the memorandum decision (AR 1395), however, plaintiffs claim this “glancing allusion” is insufficient for purposes of determining whether “the agency has found that gambling is an in- tended use.” (Pls.’ Br. Supp. Summ. J. at 45-47.) In support of this contention, plaintiffs reference several statements by Tribe Chairman Michael Jandreau that indicate gam- ing on the Oacoma parcel is a consideration. /d. App. 37 Although a reviewing court “may not supply a rea- soned basis for the agency’s action that the agency itself has not given,” the court “will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Mausolf v. Babbitt, 125 F.3d 661, 667 (8th Cir.1997) (citation omitted). Additionally, “[i]f the adminis- trative record contains evidence that supports the posi- tions of both the agency and the party seeking relief, the agency is entitled to rely on its experts’ tests and observa- tions, and decisions made in such reliance are not arbi- trary and capricious.” Cent. S.D. Coop. Grazing Dist. v. Sec’y of the United States Dep't of Agric., 266 F.3d 889, 899 (8th Cir.2001) (citation omitted). The Secretary addressed the purposes for which the Tribe intends to use the Oacoma parcel. The Secretary also noted that the letter from Governor Janklow indicated the Tribe assured him that they would not conduct gaming on the land. It ap- pears to this Court that what the Secretary is indicating is that it does not consider gaming to be a purpose for which the land will be used. Furthermore, even though there is evidence in the record that indicates the Tribe considered conducting gaming on the Oacoma parcel, it does not overshadow the purposes expressly set forth in the Tribe’s business plan. See Carcieri v. Norton, 290 F.Supp.2d 167, i78 (D.R.1.2003) (affirming agency’s decision to take land into trust even though there was evidence in the record that indicated the land might be used for gambling pur- poses); see also City of Lincoln City v. United States Dep’ of Interior, 229 F.Supp.2d 1109, 1124 (D.Or.2002) (stating that the Secretary “does not have the authority to impose restrictions on a Tribe’s future use of property taken into trust, or to acquire fee-to-trust property conditionally”). App. 38 The Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, permits gaming on lands acquired in trust if the Secretary, and the governor of the state where the gaming is to take place, determine that it “would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community.” 25 U.S.C. §2719%a). Plaintiffs draw attention to the possibility the Tribe may conduct gaming on the Oacoma parcel by referencing the statements of Chairman Jan- dreau and Governor Janklow. The possibility the Tribe may conduct gaming on the Oacoma parcel, however, is irrelevant to the present discussion concerning the Secre- tary’s decision to take the land into trust. Although gam- ing on the Oacoma parcel may develop into a cognizable issue between the parties, it is a matter that must be addressed on another day. See 25 U.S.C. § 2719(c) (stating that “[nJothing in this section shall affect or diminish the authority and responsibility of the Secretary to take land into trust”). It should be noted, however, that this Memo- randum Opinion is not to be construed as endorsing or permitting gaming on the Oacoma parcel. Thus, the memorandum decision satisfactorily indicates that the Secretary reasonably considered the criterion listed in § 151.10(c). There is a rational basis for this decision. 25 C.F.R. § 151.10(e) Subsection 151.10(e) states that “[i]f the land to be acquired is in unrestricted fee status, [the Secretary shall consider] the impact on the State and its political subdivi- sions resulting from the removal of the land from the tax rolls.” The Secretary noted that the Oacoma parcel gener- ates $2,587.02 in tax revenue for plaintiffs. AR 1396. The Secretary determined that the loss of such revenues would App. 39 not have a significant impact on the local governments. Jd. Plaintiffs argue that this analysis is insufficient because the decision failed to take into account plaintiffs’ proposed losses to the local governments if a truck stop or residen- tial properties were to occupy the land. (Pls.’ Br. Supp. Summ. J. at 47-48.) Again, this Court finds such argument immaterial to the Secretary’s decision. Plaintiffs submitted to the Secretary an analysis of the tax losses if there were businesses on the Oacoma parcel. In the memorandum decision, however, the Secre- tary reported that there are no businesses on the Oacoma parcel. Plaintiffs’ assertion that the memorandum decision was arbitrary and capricious because it did not include the projected tax losses if hypothetical businesses were later constructed on the Oacoma parcel is without merit. A reasonable interpretation of section 151.10(e) is that the Secretary must consider the impact of removing the land from the tax rolls at the time the application is filed. It would be illogical to require the Secretary to speculate as to every possible economic use for land that an applicant is requesting the Secretary place in trust. See Lincoln City, 229 FSupp.2d at 1125 (stating that the BIA need not speculate about revenues from potential ventures). Thus, the memorandum decision satisfactorily indicates that the Secretary reasonably considered the criterion listed in § 151.10(e). There is a rational basis for this decision. 25 C.F.R. § 151.10(f) Subsection 151.10(f) states that the Secretary shall consider the “[jjurisdictional problems and potential conflicts of land use which may arise.” In the memoran- dum decision, the Secretary noted that the Tribe did not App. 40 expect any problems or conflicts with the use of the Oacoma parcel. AR 1396. In support of this conclusion the Secretary referenced an earlier land acquisition that was west of the Lower Brule Reservation which did not cause any problems. Jd. The memorandum also indicates the BIA will supply law enfertement for the Oacoma parcel. Id. Plaintiffs claim the memorandum decision is arbitrary and capricious because it “entirely ignored” the informa- tion they provided regarding jurisdictional problems. (Pls.’ Br. Supp. Summ. J. at 48.) “The regulations only require that the BIA undertake an evaluation of potential problems.” Lincoln City, 229 F.Supp.2d at 1124. The Secretary considered the fact that minimal problems were created by a previous acquisition of off-reservation property and that the Tribe did not expect any problems with the acquisition of the Oacoma parcel. AR 1396. Thus, the memorandum decision satisfac- torily indicates that the Secretary reasonably considered the criterion listed in § 151.10(f). There is a rational basis for this decision. 25 C.F.R. § 151.10(g) Subsection 151.10(g) states that “[i]Jf land to be ac- quired is in fee status, [the Secretary shall consider] whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status.” The Secretary determined that the BIA will be staffed and equipped to administer the Oacoma property. AR 1396. This includes assisting in all real estate functions. Jd. The Secretary also noted that the Great Plains Regional Office will provide technical support to the Tribe. J¢. Plaintiffs again contend App. 41 that because the memorandum decision did not included an exhaustive analysis of the benefits and drawbacks of placing the land in trust, the Secretary did not consider the negative effects, and hence, the decision is arbitrary and capricious. (Pls.’ Br. Supp. Summ. J. at 50-51.) The Secretary is only required to consider whether the BIA is equipped to handle the additional duties that will arise if the property is taken into trust. The Secretary considered these factors and determined the BIA will be able to handle these additional duties. Thus, the memo- randum decision satisfactorily indicates that the Secretary reasonably considered the criterion listed in § 151.10(g). There is a rational basis for this decision. 25 C.F.R. § 151.11(b) Subsection 151.11(b) states: The location of the land relative to state bounda- ries, and its distance from the boundaries of the tribe’s reservation, shall be considered as follows: as the distance between the tribe’s reservation and the land to be acquired increases, the Secre- tary shall give greater scrutiny to the tribe’s jus- tification of anticipated benefits from the acquisition. The Secretary shall give greater weight to the concerns raised pursuant to para- graph (d) of this section. The memorandum decision indicates that the consid- erations set forth in subsection (b) were addressed previ- ously in the decision. AR 1397. The decision reports that the Oacoma parcel is not located within the boundaries of the reservation, but is “approximately eight miles south of the current Lower Brule Sioux Indian Reservation.” AR App. 42 1392. Plaintiffs argue that because the Secretary did not mention the standard set forth in paragraph (b), the decision to grant the Oacoma parcel trust status is arbi- trary and capricious. (Pls.’ Br. Supp. Summ. J. at 52-53.) The memorandum decision establishes that the Oacoma parcel will help the Tribe better develop its economy because it is located on the interstate and more attractive to businesses. AR 1394. Plaintiffs have submit- ted no information negating the Secretary's finding on this issue. Thus, the memorandum decision satisfactorily indicates that the Secretary reasonably considered the criterion listed in § 151.11(b). There is a rational basis for this decision. 25 C.F.R. § 151.3(a)(3) Subsection 151.3(a)(3) states that land may be ac- quired in trust status for a tribe “[wlhen the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing.” The Secretary determined that the Byway will advance the economic growth of the Tribe. AR 1393-94. Plaintiffs argue that the decision is arbitrary and capricious because it does not analyze the economic growth of the Oacoma parcel if held in trust status versus fee status. (Pls.’ Br. Supp. Summ. J. at 53-54.) The regulation merely requires the Secretary to “consider” whether the acquisition is “necessary.” Plaintiffs argue that the decision is deficient because it fails to explain why helding the land in trust is more beneficial than holding it in fee. However, the Court has determined that the Secretary is not required to delve into an in-depth discussion of the purposes behind enactment of the IRA App. 43 each time an application to acquire land in trust status is considered. Thus, the memorandum decision satisfactorily indicates that the Secretary reasonably considered the criterion listed in § 151.3(a)(3). There is a rational basis for this decision. Clear Error In Judgment Subsection 151.11(c) states that “[w]here land is being acquired for business purposes, the tribe shall provide a plan which specifies the anticipated economic benefits associated with the proposed use.” Plaintiffs claim the Secretary's decision is arbitrary and capricious because it amounts to a clear error of judgment. (Pls.’ Br. Supp. Summ. J. at 54-55.) In support of this contention plaintiffs argue the business plan submitted by the Tribe is inade- quate because it does not include a cost-benefit analysis. Plaintiffs also point out that the plan could not provide the agency any guidance because the Secretary noted the plan was “strictly speculative.” The Tribe issued a detailed business plan setting forth the intricacies of the Byway. AR 127-296. The plan also includes projections on attendance and the economic impact the Byway will have on the community. AR 289. The decision reported that the Tribe’s plan was specula- tive, however, because the plan was created under the premise the project would receive federal funding from an agency which may or may not provide funding. AR 1397. Plaintiffs claim this amounts to a clear error of judgment. The Court disagrees. Although the plan may not be as complete as plaintiffs would like, that is not the standard by which a court reviews agency action. The plan stated the anticipated economic benefits in conjunction with App. 44 creation of the Byway. Thus, the memorandum decision satisfactorily indicates that the Secretary reasonably considered the criterion listed in § 151.11(c). There is a rational basis for this decision. Broken Promises Plaintiffs also contend the decision should be reversed because Interior did not adhere to the representations it made to the Supreme Court. (Pls.’ Br. Supp. Summ. J. at 55-60.) Specifically, plaintiffs claim they were denied due process because Interior denied them a “full and fair hearing of its claims.” Jd. at 58. Review of Interior’s petition for writ of certiorari reveals that Interior’s argu- ments for remand were based on changes to the regula- tions which now provide for judicial review of Agency decisions as they pertain to acquisitions of land in trust. However, at no place in Interior’s submissions to the Supreme Court is it indicated that plaintiffs will be provided a “hearing.” The regulations were amended to supply state and local governments notice and an oppor- tunity “to provide written comments as to the acquisition’s potential impacts on regulatory jurisdiction, real property taxes and special assessments.” Land Acquisitions, 61 Fed.Reg. 18,082 (Dep’t of the Interior April 24, 1996) (to be codified at 25 C.F.R. § 151.12(b)). The Secretary provided plaintiffs notice and an opportunity to submit comments on the acquisition, which they did. Thus, having found that Interior complied with the regulations and adhered to its assertions to the Supreme Court, plaintiffs’ argument is dismissed as being without merit. Plaintiffs remaining arguments essentially reiterate that which they advanced throughout their briefs in App. 45 support of, and in opposition to, summary judgment. Plaintiffs contend the decision is deficient in that it fails to explain why the acreage on which the Circle of Tipis sits, and the remaining acreage, needs to be placed in trust for the Tribe. (Pls.’ Br. Supp. Summ. J. at 60-61.) Having already explained why the Secretary need not explain the benefits of holding land in trust versus fee status, plain- tiffs’ arguments are dismissed as being without merit. Finally, with regard to Interior’s motion for summary judgment, it is contended that the Secretary’s decision satisfactorily addressed all relevant criteria as listed in 25 C.F.R. pt. 151. (Def’s Mem. Supp. Summ. J. at 15-30.) Plaintiffs do not rebut this contention with regard to 25 C.F.R. §§151.10(a), (h), and 151.11(d). Furthermore, review of these uncontested criteria indicates they were sufficiently considered by the Secretary, and a rational conclusion was reached. CONSTITUTIONALITY OF 25 U.S.C. § 465 A more expansive view of the substantive history of this matter may reveal the peculiar nature of the issue the parties contest. This Court addressed the constitutionality of 25 U.S.C. § 465 when the issue was raised by the state of South Dakota and city of Oacoma over ten years ago. South Dakota, CIV. 92-3023 at 19-21. The Court explained that the policy behind Cungress’s enactment of the IRA was “to acquire land for Indians to help reverse the effects of the Indians’ loss of land under the allotment policy and to help Indians become more self-sufficient, both economi- cally and otherwise.” Jd. at 21. Thus, the Court deter- mined that the general policy and boundaries set forth were sufficient to guide the Secretary in executing the App. 46 authority that Congress had delegated. As a result, this Court held that § 465 was constitutional. On appeal, the Eighth Circuit reversed that decision. Writing for the majority, Circuit Judge (now Chief Judge) Loken, stated that “[t]here are no perceptible ‘boundaries,’ no ‘intelligible principles,’ within the four corners of the statutory language that constrain this delegated authority — except that the acquisition must be ‘for Indians.’” Oacoma I, 69 F.3d at 382. The panel majority remarked that the Secretarys “actions under § 465 may not be judicially reviewed because the statute commits them entirely to agency discretion.” Jd. at 881-82. The court said that this factor necessitated closer scrutiny of plaintiffs’ contentions. Jd. at 883. The court also remarked that “(t]he legislative history of § 465 suggests that Congress did not intend to delegate unrestricted power to acquire land ‘for Indians.’” Id. The pan»l majority maintained: Those who drafted § 465 failed to incorporate the limited purpose reflected in the legislative his- tory. Presumably, they either drafted poorly or ignored the delegation issue. The agency that re- ceived this inartful delegation then used the ab- sence of statutory controls to claim unrestricted, unreviewable power. The result is an agency fief- dom whose boundaries were never established by Congress, and whose exercise of unrestrained power is free of judicial review. It is hard to imagine a program more at odds with separation of powers principles. Id. at 884-85. Dissenting from the majority, Circuit Judge Murphy remarked that “the Supreme Court has consistently upheld statutes involving broad delegations of authority.” App. 47 Id. at 886 (Murphy, J., dissenting). She further remarked that the delegation doctrine has “evolved into a tool of statutory construction, by which reviewing courts give ‘narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.’” Jd. (quoting Mistretta v. United States, 488 U.S. 361, 373 n. 7, 109 S.Ct. 647, 655 n. 7, 102 L.Ed.2d 714 (1989)). Finally, with reference to the majority’s concern that § 465 could con- ceivably permit the Secretary “to provide a lake home for a politically faithful tribal officer,” Judge Murphy held that those fears were insufficient to “strike down an act of Congress.” Jd. at 889. After this adverse decision, Interior amended § 151.12(b) to provide individuals such as plaintiffs with notice of administrative decisions to acquire land in trust pursuant to the IRA. See Land Acquisitions, 61 Fed.Reg. 18,082 (providing for a 30-day waiting period to allow for judicial review of decision). Interior then filed a writ of certiorari with the United States Supreme Court request- ing that the matter be remanded to the Secretary in light of its provision of notice and time in which parties may obtain judicial review in such matters. Pet. for Cert. 15. The Supreme Court granted the writ, vacated the decision of the Eighth Circuit, and ordered that the case be re- manded to the Secretary to reconsider his administrative decision. Interior, 519 U.S. at 919-20, 117 S.Ct. at 286. Accordingly, after traversing various procedural hurdles at the administrative level, the issue of whether § 465 is an unconstitutional delegation of legislative power is again before this Court. App. 48 Delegation of Power Plaintiffs argue § 465 amounts to an unconstitutional delegation of legislative power because a plain reading of the statute fails te delineate its “general policy.” They also assert that the legislative history of § 465 cannot be referenced when attempting to discern Congress’s “general policy” because it does not equate to a “legislative act.” Plaintiffs further contend that the statute is deficient in that it fails to set “boundaries” on the Secretary’s author- ity. Consequently, in order to resolves [sic] these issues, the Court must rely on the rules of statutory construction and interpret the text and history of § 465 accordingly. Plaintiffs’ request of the Court to declare § 465 uncon- stitutional is a grave and delicate duty. Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1928) (Holmes, J., concurring) (stating that “to declare an Act of Congress unconstitutional, ... is the gravest and most delicate duty that this Court is called on to perform”). “The cardinal principle of statutory construction is to save and not to destroy.” United States v. Menasche, 348 U.S. 528, 538, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955) (citation omitted). Acts of Congress are presumed to be constitu- tional. Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 1771, 114 L.Ed.2d 233 (1991) (citation omitted). Finally, “ambiguous statutes passed for the benefit of Indian tribes are to be interpreted in a light most favorable to Indians.” Chase, 573 F.2d at 1016 (citations omitted). The United States Constitution provides that “alll legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. Const., Art. I, § 1. With this in mind, the Supreme Court has consistently held “Congress generally cannot delegate its legislative App. 49 power to another Branch.” Mistretta, 488 U.S. at 372, 109 S.Ct. at 654 (citing Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892)). This principle, how- ever, is not designed to “prevent Congress from obtaining the assistance of its coordinate branches.” Jd. Thus, when Congress does delegate decision-making authority to an agency it “must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’” Whitman v. Amn. Trucking Ass’ns, Inc., 531 U.S. 457, 472, 121 S.Ct. 903, 912, 149 L.Ed.2d 1 (2001) (alteration in original) (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S.:294, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)). The “intelligible principle” test is “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’” Mistretta, 488 U.S. at 372-73, 109 S.Ct. at 655 (quoting Amn. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946)). General Policy Plaintiffs concede that § 465 sufficiently identifies the agency that is to apply it. (Pls.’ Br. Supp. Summ. J. at 23.) Therefore, the only issues are whether the statute sets forth its “general policy” and the “boundaries” of the Secretary’s delegated authority. Section 5 of the IRA, 25 U.S.C. § 465, provides in relevant part: The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relin- quishment, gift, exchange, or assignment, any in- terest in Jands, water rights, or surface rights to lands, within or without existing reservations, in- cluding trust or otherwise restricted allotments, App. 50 whether the allottee be living or deceased, for the purpose of providing land for Indians. For the acquisition of su h lands, interests in lands, water rights, and surface rights, and for expenses incident to such acquisition, there is authorized to be appropriated, out of any funds in the Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in any one fiscal year: Provided, That no part of such funds shall be used to acquire additional land outside of the exterior boundaries of Navajo Indian Reservation for the Navajo Indians in Arizona, nor in New Mexico, in the event that legislation to define the exterior boundaries of the Navajo Indian Reser- vation in New Mexico, and for other purposes, or similar legislation, becomes law. The unexpended balarczes of any appropriations made pursuant to this section shall remain available until expended. Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. § 608 et seq.) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation. A plain reading of § 465 reveals that it was enacted “for the purpose of providing land for Indians.” Although the statute uses “purpose,” instead of “general policy,” to describe its intention, the Court finds that such alleged discrepancy does not invalidate the statute. Furthermore, upon review of the historic context and legislative history of the IRA, Congress’s “general policy” supporting enact- ment of § 465 becomes apparent. See Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1002, 108 L.Ed.2d App. 51 132 (1990) (stating that “[iJn determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy”) (citations omitted); Nat Ass’n of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367, 376 n. 12 (D.C.Cir.1982) (relying on legislative history and philosophy of Act to find that it did not amount to an unconstitutional delegation of legislative power). Prior to enactment of the IRA, Congress attempted to assimilate Indians into the country’s mainstream through an allotment policy. General Allotment Act of Feb. 8, 1887, 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq. (1976 ed.) (§§ 331-33 repealed 2000). The policy of the General Allotment Act was simple: “to extinguish tribal sover- eignty, erase reservation boundaries, and force the assimi- lation of Indians into the society at large.” County of Yakima v. Confederated Trites and Bands of the Yakima Indian Nation, 502 U.S. 251, 254, 112 S.Ct. 683, 686, 116 L.Ed.2d 687 (1992). This policy was a failure, which resulted in a loss of more than 90 million acres of Indian land. Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 436 n. 1, 109 S.Ct. 2994, 3011 n. 1, 106 L.Ed.2d 343 (1989). As a result, Congress enacted the IRA in an “attempt to encourage economic development, self-determination, cultural plural- ity, and the revival of tribalism.” Felix S. Cohen, Hand- book of Federal Indian Law 147 (1982 ed.). It was also stated that the IRA was designed “to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973) (quoting H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)). App. 52 In order to stem the staggering flow of land from Indian to non-Indian hands, the IRA set forth that “no land of any Indian reservation . . . shall be allotted in severalty to any Indian.” 25 U.S.C. § 461. Congress also tried to replenish Indian lands by permitting the Secretary of the Interior to acquire land in trust for Indians, noting that land held in trust is exempt from local and state taxation. 25 U.S.C. § 465. In repudiating the function of the General Allotment Act, the legislative history of the IRA states that its policy is “[tlo conserve and develop Indian lands and resources.” S. 3645, 73d Cong., 2d Sess., 1 (1934). Plaintiffs contend that this policy is unconstitutional because it does not leave room “for a narrowing interpretation of 25 U.S.C. § 465 so as to avoid the overbroad delegation of the plain text of the act.” (Pls.’ Br. Supp. Summ. J. at 31.) Although this policy is not as specific as the policies listed in a prior version of the IRA, that fact alone does not render the subsequent policy statement invalid. See H.R. 7902, 73d Cong., 2d Sess., tit. III, § 1 (setting forth numerous policies of the IRA). Thus, upon review of the text of § 465 and the legislative history qusted above, it is the opinion of this Court that Congress has clearly delineated the general policy behind § 465. Boundaries Plaintiffs contend §465 does not establish any “boundaries” on the Secretary's authority to take land into trust for Indians. A plain reading of the text of the statute, however, reveals that there are boundaries on the Secre- tary’s authority. Moreover, when the text is read in con- junction with the overriding policy of the IRA, these App. 53 boundaries are further defined. Finally, the recent decision in Whitman conclusively sets forth the Supreme Court’s position on the delegation doctrine and effectively closes the door on plaintiffs’ constitutional challenge. Taken in its broadest terms, § 465 authorizes the Secretary to “acquire land in trust for Indians.” However, when that generality is read together with all of § 465, as well as the other sections of the IRA and its history, limits on the Secretary’s authority are revealed. First, the preceding analysis on the general policy of § 465 estab- lishes that it was enacted “[tlo conserve and develop Indian lands and resources.” S. 3645, 73d Cong., 2d Sess., 1 (1934). Thus, it can fairly be said that the acquisition of land for Indians furthers this stated policy. See Roseville v. Norton, 219 F.Supp.2d 130, 156 (D.D.C.2002) (stating that the Auburn Indian Restoration Act’s policy to advance the Tribe’s economic development is a limiting factor in dele- gation doctrine analysis). Second, the Secretary may only provide land for Indians. See 25 U.S.C. § 479 (defining who qualifies as an “Indian”). Third, the Secretary is limited in the amount of funds that can be appropriated to acquire such land. 25 U.S.C. § 465 (setting forth a limit of $2,000,000). Fourth, § 465 prohibits the Secretary from using any of these funds to acquire land outside the Navajo Indian Reservations in Arizona and New Mexico. Solely considering these factors, it is the opinion of this Court that these limitations satisfy the “boundaries” portion of the “intelligible principle” test as it was recently explained in Mistretta. The Eighth Circuit panel opinion held that § 465 was unconstitutional because it felt that the Secretary “had unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual App. 54 Indians.” Gacoma I, 69 F.3d at 882. This decision was made, however, before the Supreme Court issued its opinion in Whitman. The pertinent issue raised in Whit- man was whether section 109(b)(1) of the Clean Air Act, as added, 84 Stat. 1679, and amended, 42 U.S.C. § 7409(a), is an unconstitutional delegation of legislative power to the Administrator of the Environmental Protection Agency. Whitman, 531 U.S. at 462, 121 S.Ct. at 907. It is the ensuing analysis in Whitman that sets forth the Supreme Court’s definition of the “intelligible principle” test and clarifies the constitutional issue before this Court. Section 109(b)(1) gives the Administrator the author- ity to set air quality standards that “are requisite to protect the public health.” The relevant part of that statute in issue in Whitman were the words “requisite” and “public health.” Jd. at 472-76, 121 S.Ct. at 911-14. The parties contesting § 109(b)(1) argued that these words were susceptible to various interpretations and indefinite. Id. at 465-66, 468-69, 121 S.Ct. at 908-09, 910. The Su- preme Court held, however, that the language in § 109(b)(1) was “well within the outer limits of our non- delegation precedents.” Id. at 474, 121 S.Ct. at 913. In explaining its holding in Whitman, the Supreme Court noted that it has only found a statute lacking of an intelligible principle in two situations. Jd. (citing Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935)). The Supreme Court further noted that it “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Jd. at 474-75, 121 S.Ct. at 913 (citation omitted). Also, the Supreme Court App. 55 held that it has “never demanded, ... that statutes pro- vide a determinate criterion for saying how much ... is too much.” Jd. at 475, 121 S.Ct. at 913 (internal quotations omitted). As an example of this theory, the Supreme Court cited a similar case where it noted that the statute need not decree “how ‘imminent’ was too imminent, or how ‘necessary was necessary enough, or ... how ‘hazardous’ was too hazardous.” /d. (citing Touby v. United States, 500 U.S. 160, 165-67, 111 S.Ct. 1752, 1756-57, 114 L.Ed.2d 219 (1991)). It is from this analysis in Whitman that similarities can be seen between the text of § 465 of the IRA and the text of § 109(b)(1) of the Clean Air Act. The Clean Air Act permits the Administrator to set air quality standards that “are requisite to protect the public health,” while the IRA permits the Secretary to acquire land in trust for Indians “to conserve and develop Indian lands and resources.” It is conceded by the Court that the act of acquiring land is different from the act of setting air quality standards, however, the authority that these statutes bestow upon executive branch officials is effectively the same. There- fore, by extending the Supreme Court’s holding in Waiit- man to the facts of this case, it must be concluded that § 465 sets forth sufficient “boundaries” on the Secretary’s authority and that it is not an unconstitutional delegation of legislative authority. Finally, it is worthy of note that since the Eighth Circuit’s panel opinion adjudging § 465 unconstitutional was vacated, several other circuits have weighed in on the matter and held that § 465 is not an unconstitutional delegation of authority to the Secretary. See United States v. Roberts, 185 F.3d 1125, 1136-37 (10th Cir.1999); Confed- erated Tribes of Siletz Indians of Oregon v. United States, App. 56 110 F.3d 688, 698 (9th Cir.1997) (stating that “[t]he gen- eral delegation of power to the Executive to take land into trust for the Indians is a valid delegation because Con- gress has decided under what circumstances land should be taken into trust and has delegated to the Secretary of the Interior the task of deciding when this power should be used”); see also Carcieri, 290 F.Supp.2d at 187 (finding persuasive the Tenth Circuit’s delegation analysis in Roberts). Thus, upon review of the text of § 465, its legisla- tive history, and in light of the cases decided after the Eighth’s Circuit opinion in Oacoma I, it is the opinion of this Court that Congress has clearly delineated the “boundaries” of the Secretary’s authority as bestowed upon him by § 465. CONCLUSION For the foregoing reasons, it is the opinion of this Court that the Secretary’s actions were not arbitrary, capricious, or an abuse of discretion. Furthermore, in conformity with the Court’s previous opinion, it remains the decision of this Court “that 25 U.S.C. § 465 is constitu- tional both on its face and as applied in this case.” See South Dakota, CIV. 92-3023 at 22. Accordingly, it is hereby ORDERED that plaintiffs’ motion for summary judgment (Docket # 82) is denied. IT IS FURTHER ORDERED that Interior’s motion for summary judgment (Docket # 96) is granted. Judgment shall be issued in favor of defendants and against plain- tiffs. App. 57 519 U.S. 919 Supreme Court of the United States DEPARTMENT OF THE INTERIOR, et al., petitioners, v. SOUTH DAKOTA, et al. No. 95-1956. Oct. 15, 1996. Case below, 69 F.3d 878. The petition ‘or a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit with instructions to vacate the judgment of the United States District Court for the District of South Dakota and re- mand the matter to the Secretary of the Interior for reconsideration of his administrative decision. Justice SCALIA, with whom Justice O’;CONNOR and Justice THOMAS join, dissenting. This case arises from the 1990 action of the Depart- ment of the Interior acquiring 91 acres in trust for the Lower Brule Tribe of the Sioux Indians, pursuant to § 5 of the 1934 Indian Reorganizations Act (IRA), 48 Stat. 985, as amended, 25 US.C. § 465. Respondents challenged this action in Federal District Court, contending both that the Department’s particular action violated the Administrative Procedure Act (APA), 5 U.S.C. § 706, and that the Secre- tary’ statutory authority to acquire lands under the IRA is unconstitutional as a delegation of legislative power. Throughout this litigation, until now, it has been the Department’s position that IRA land acquisitions are unreviewable under the APA because they fall within the App. 58 exception for matters “committed to agency discretion by law.” § 701(a)(2). The District Court agreed that APA review was unavailable, although on different grounds, holding that since the United States had acquired title, the Quiet Title Act (QTA), 28 U.S.C. § 2409a, provided the sole statutory means of challenging the action, and that the QTA explicitly prohibits actions challenging title to Indian lands. The District Court also upheld the Secre- tary’s constitutional authority to acquire land on behalf of the United States under the IRA. The Court of Appeals for the Eighth Circuit, however, reversed on the ground that § 5 of the IRA constitutes a delegation of legislative power to the Secretary of the Interior and is hence unconstitu- tional. 69 F.3d 878 (1995). Following the Eighth Circuit’s sweeping decision, the Department of the Interior did an about-face with regard to the availability of judicial review under the APA. It promulgated a new regulation providing that “the Secre- tary shall publish in the Federal Register, or in a newspa- per of general circulation serving the affected area a notice of his/her decision to take land into trust,” and that “the Secretary shall acquire title in the name of the United States no sooner than 30 days after the notice is pub- lished.” Department of the Interior, Land Acquisitions (Nongaming), 61 Fed.Reg. 18083 (1996) (to be codified at 25 C.F.R. § 151.12). The preamble to that regulation recites that it is being adopted “[i]n response to a recent court decision, State of South Dakota v. U.S. Department of the Interior, 69 F.3d 878 (8th Cir.1995),” and asserts that the procedure it sets forth “permits judicial review before transfer of title to the United States.” The Solicitor Gen- eral now represents to us that it is the position of the De- partment of the Interior, as well as that of the Department of App. 59 Justice, that judicial review of an IRA land trust acquisi- tion may be obtained by filing suit within the 30-day waiting period, although action will continue to be barred by the QTA after the United States formally acquires title. The decision today — to grant, vacate, and remand in light of the Government’s changed position -— is both unprecedented and inexplicable. This Court has in recent years occasionally entered a “GVR” in light of a position newly taken by the Solicitor General where the United States was the prevailing party below. See, e.g., Stutson v. United States, 516 U.S. 193, 116 S.Ct. 600, 1383 L.Ed.2d 571 (1996) (per curiam); Schmidt v. Espy, 513 U.S. 801, 115 S.Ct. 43, 130 L.Ed.2d 5 (1994); Wells v. United States, 511 U.S. 1050, 114 S.Ct. 1609, 128 L.Ed.2d 337 (1994); Reed v. United States, 510 U.S. 1188, 114 S.Ct. 1289, 127 L.Ed.2d 644 (1994); Chappell v. United States, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). Even that extension of our earlier practice is in my view unsound. See Lawrence v. Chater, 516 U.S. 163, 184-186, 116 S.Ct., 604, 615-616, 133 L.Ed.2d 545 (1995) (SCALIA, J., dissent- ing). But we have never before GVR’d simply because the Government, having lost below, wishes to try out a new legal position. The unfairness of such a practice to the litigant who prevailed in the Court of Appeals is obvious. (“Heads I win big,” says the Government; “tails we come back down and litigate again on the basis of a more mod- erate Government theory.”) Today’s decision encourages the Government to do what it did here: to “go for broke” in the courts of appeals, rather than get the law right the first time. What makes today’s action inexplicable as well as unprecedented is the fact that the Government’s change of legal position does not even purport to be applicable to the App. 60 present case. The Government now concedes only that APA review is available before the Secretary's taking of title under the IRA; it has not altered its view that once title has passed to the United States APA review is precluded by the QTA. 28 U.S.C. § 2409a(a); Pet. for Cert. 7. Since in this case title has passed, the Government’s position in the present litigation remains what it was: ‘Judicial review is unavailable. The Government contends, however, that the Court of Appeals’ determination that the IRA was a delegation of legislative power was based in part upon the unavailabil- ity of judicial review. I fail to see how the availability of judicial review has anything to do with that question; perhaps the Court of Appeals thought otherwise, though its opinion on this point is somewhat contradictory.* If, however, judicial reviewability was germane to the Court of Appeals’ judgment, surely it was only such reviewability as would exist of right, and not such as would be accorded only at the discretion of the agency. It is merely the latter that we have here: The Government concedes only that, if the Secretary chooses to announce his acquisition decision before the acquisition becomes effective (as the new regu- lation graciously requires), judicial review is available. It * At one point the court quoted approvingly its statement in United States v. Garfinkel, 29 F.3d 451, 459 (CA8 1994), that “ ‘[j)udicial review is a factor weighing in favor of upholding a statute against a nondelegation challenge.’” 69 F.3d 878, 882 (1995). This seems incon- sistent, however, with the approach the court takes elsewhere in its opinion, when it says: “We doubt whether the Quiet Title Act precludes APA review of agency action by which the United States acqu/res title. But given our conclusion that § 465 is an unconstitutional delegation of power, we need not decide this issue.” Jd., at 881, n. 1. App. 61 is inconceivable that this reviewability-at-the-pleasure-of- the-Secretary could affect the constitutionality of the IRA in anyone’s view, including that of the Court of Appeals. Finally, the existence of the new regulation does not make this a case in which a postjudgment change in the law applicable to the dispute warrants a remand. The preamble to the regulation acknowledges that “the Eighth Circuit decision precludes the Secretary from taking into trust the land at issue in that particular case,” and explic- itly states that “[t]he procedure announced in today’s rule ... will apply to all pending and future trust acquisitions.” 61 Fed.Reg. 18083 (1996) (emphasis added). Of course that statement merely recites the obvious, since, title already having been acquired in this case, it is quite impossible for the Secretary to provide 30-day advance notice of intent to take title. Evidently for that reason, the Government asks this Court, if it declines to grant certiorari, not merely to GVR, but to do so “with instructions that the judgment of the district court sustaining the Secretary’s decision also be vacated and that the matter, in turn, be remanded to the Secretary of the Interior for reconsideration and issuance of a new administrative decision.” Pet. for Cert. 25. I cannot imagine where we would derive the authority for this. If, as the Government asserts in its brief, statu- tory judicial review of a land-trust decision under § 5 of the IRA is unavailable once title has passed to the United States, then certainly federal courts cannot construct the necessary conditions for judicial review by simply ordering the land acquisition undone. In sum, there is no basis in precedent or in reason for a GVR in the present case. Since a federal statute has App. 62 been held unconstitutional, I would grant the petition for certiorari. ace App. 63 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 94-2344SDRC State of South Dakota, et al., * * Appellants, «x Order Denying Petition for v. * Rehearing and Suggestion * for Rehearing En Banc * United States Department of Interior, et al., A * Appellees. The suggestion for rehearing en banc is denied. Chief Judge Arnold, Judge McMillian, Judge Beam, and Judge Murphy would grant the suggestion for rehearing en banc. The petition for rehearing by the panel is also denied. February 2, 1996 Order Entered at the Direction of the Court: /s/ Michael E. Gans Clerk, U.S. Court of Appeals, Eighth Circuit App. 64 69 F.3d 878 United States Court of Appeals, Eighth Circuit. STATE OF SOUTH DAKOTA; City of Oacoma, South Dakota, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF the INTERIOR; Eddie F. Brown, Assistant Secretary-Indian Affairs; Jerry Jaeger, Acting Area Director, Bureau of Indian Affairs, Defendants-Appellees. No. 94-2344. Submitted Feb. 15, 1995. Decided Nov. 7, 1995. John P. Guhin, Assistant Attorney General, Pierre, South Dakota, argued (Steven R. Smith, on the brief), for appellant. Lisa E. Jones, U.S. Department of Justice, Washing- ton, D.C., argued (Mikal G. Hanson, Edward J. Shawaker and Andrea Nervi Ward, on the brief), for appellee. Before MAGILL, LOKEN, and MURPHY, Circuit Judges. LOKEN, Circuit Judge. The State of South Dakota and the City of Oacoma, South Dakota, appeal the district court’s dismissal of their challenge to the Secretary of the Interior’s acquisition of commercial land in trust for the Lower Brule Tribe of Sioux Indians. Concluding that 25 U.S.C. § 465, the statute authorizing acquisition of the land, is an unconsti- tutional delegation of legislative power, we reverse. App. 65 I. In March 1990, the Tribe submitted an application under 25 U.S.C. § 465, asking the Secretary to acquire ninety-one acres of land in trust for use by the Tribe. The land is located seven miles from the Tribe’s reservation and is partially within the City of Oacoma. The Tribe stated that the land would be used to create an industrial ark adjacent to an interstate highway, explaining that “(t]his site, Trust status for the land, and tax advantages are critically necessary for the development to occur.” The State of South Dakota and the City of Oacoma protested in writing to the Secretary’s Bureau of Indian Affairs (“BIA”). When BIA’s Area Director notified the State and the City in March 1991 that the Tribe’s applica- tion would be approved, they appealed to the Interior Board of Indian Affairs. BIA then disclosed that the Assistant Secretary for Indian Affairs had approved the application in December 1990, without notifying the protestants. The Board dismissed the appeal because it has no jurisdiction to review decisions by the Assistant Secretary. State of South Dakota & Town of Oacoma v. Aberdeen Area Director, BIA, 22 1.B.1.A. 126 (1992). In July 1992, the State and the City filed this action against the Department of the Interior and certain of its officials seeking judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. For convenience, we will refer to the defendants collectively as “the Secretary,” because he is the Executive Branch official authorized to act under § 465. We will refer to the State and the City collectively as “plaintiffs.” Plaintiffs allege that they are aggrieved by the Secre- tary’s acquisition because it deprives them of tax revenues App. 66 and may place the land beyond their regulatory powers. They contend that the acquisition is invalid because § 465 is an unconstitutional delegation of legislative power. Alternatively, they contend (i) that the agency violated its internal rules of procedure and the Assistant Secretary acted beyond the scope of his delegated authority; (ii) that the approval was arbitrary and capricious and not in accordance with the agency’s governing regulations, see 25 C.F.R. §§ 151.1-.14; and (iii) that the Tribe plans to develop the land as a gaming casino and the Secretary was aware of the Tribe’s true intentions but failed to comply with the approval procedures of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721. In November 1992, the Secretary took title to the lands in trust for the Tribe. In January 1994, the Secre- tary moved to dismiss on the ground that a § 465 acquisi- tion is action “committed to agency discretion by law” and therefore not subject to judicial review. See 5 U.S.C. § 701(a\(2); Heckler v. Chaney, 470 U.S. 821, 828-30, 105 S.Ct. 1649, 1654-55, 84 L.Ed.2d 714 (1985). The district court granted the motion to dismiss, concluding that § 465 is not an unconstitutional delegation of legislative power because the statute identifies the agency to which power is delegated and “clearly delineates the general policy to be applied and the bounds of that delegated authority.” Without reaching the “committed to agency discretion” issue, the court also held, sua sponte, that it had no jurisdiction to review plaintiffs’ other claims because the Quiet Title Act, 28 U.S.C. §2409a, which permits the App. 67 United States to be sued to resolve real property disputes, “does not apply to trust or restricted Indian lands.” II. On appeal, plaintiffs argue that § 465 provides no legislative standards or boundaries governing the Secre- tary’s acquisitions. The Secretary responds that the statutory purpose of “providing land for Indians” suffi- ciently defines the general policy and boundaries of the delegated power. The Secretary notes that the Supreme Court has not invalidated a federal statute on delegation grounds since A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542, 55 S.Ct. 837, 848, 79 L.Ed. 1570 (1935), and Panama Refining Cc. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). Interestingly, the same Congress enacted both the Indian Reorganization Act, of which § 465 was a part, and the statutes invalidated in Schechter Poultry and Panama Refining. It is appropriate to consider whether § 465 satisfies the nondelegation \ * The court relied on State of Florida v. United States Dep't of the Interior, 768 F.2d 1248 (11th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986). Contra, City of Sault Ste. Marie v. Andrus, 458 F.Supp. 465, 470-72 (D.D.C.1978). We doubt whether the Quiet Title Act precludes APA review of agency action by which the United States acquires title. But given our conclusion that § 465 is an unconstitutional delegation of power, we need not decide this issue. The court in Florida conceded that the Quiet Title Act does not bar claims “that the Secretary acted unconstitutionally or beyond his statutory authority when the United States acquired title to the land.” 768 F.2d at 1255 n. 9. App. 68 doctrine as it has evolved since 1935, particularly because no other appellate court has done so.” The nondelegation doctrine is easy to state: “Congress may not constitutionally delegate its legislative power to another branch of Government.” Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 1755, 114 L.Ed.2d 219. (1991) (citation omitted). It is difficult to apply. A court must inquire whether Congress “has itself established the standards of legal obligation, thus performing its essential legislative function.” Schechter Poultry, 295 U.S. at 530, 55 S.Ct. at 843. But the court must be mindful that the doctrine does not prevent Congress from obtaining the assistance of its coordinate Branches. Therefore, so long as Congress “lay[s]) down by legislative act an intelligible principle” governing the exercise of delegated power, it has not unlawfully delegated its legislative power. J.W. Hamp- ton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928), quoted in Touby, 500 U.S. at 165, 111 S.Ct. at 1755, and Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 655, 102 L.Ed.2d 714 (1989). A delegation is overbroad “[o]nly if we could say that there is an absence of standards for the guidance of the Admin- istrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.” Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944). * To our knowledge, only one other district court has considered the nondelegation question in the sixty-year life of the statute, and its perfunctory analysis is unpersuasive. See City of Sault Ste. Marie, 458 F.Supp. at 473. App. 69 The Supreme Court has recognized that judicial review is a relevant safeguard in considering delegation issues: It is “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Private rights are pro- tected by access to the courts to test the applica- tion of the policy in the light of these legislative declarations.” Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 219, 109 S.Ct. 1726, 1731, 104 L.Ed.2d 250 (1989), quoting American Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103° (1946). Justice Marshall eloquently stated this principle in his concurring opinion in Touby: “judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power re- mains within statutory bounds.” 500 U.S. at 170, 111 S.Ct. at 1758. Thus, when the Secretary argued to the district court that his actions under § 465 may not be judicially reviewed because the statute commits them entirely to agency discretion, he implicitly acknowledged that this delegation issue requires a particularly close look. See United States v. Garfinkel, 29 F.3d 451, 459 (8th Cir.1994) (“[JJudicial review is a factor weighing in favor of uphold- ing a statute against a nondelegation challenge”) (citation omitted). , We begin by examining the very broad language of § 465: The Secretary of the Interior is hereby authorized, in his discretion, to acquire ... any interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians. App. 70 * * * Title to any lands or rights acquired ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxa- tion. By its literal terms, the statute permits the Secretary to purchase a factory, an office building, a residential subdivision, or a golf course in trust for an Indian tribe, thereby removing these properties from state and local tax rolls. Indeed, it would permit the Secretary to purchase the Empire State Building in trust for a tribal chieftain as a wedding present. There are no perceptible “boundaries,” no “intelligible principles,” within the four corners of the statutory language that constrain this delegated authority — except that the acquisition must be “for Indians.” It delegates unrestricted power to acquire land from private citizens for the private use and benefit of Indian tribes or individual Indians. The Secretary's power to purchase land under § 465 triggers the complementary power to acquire land by condemnation under 40 U.S.C. § 257. See United States v. 29 Acres of Land, 809 F.2d 544, 545 (8th Cir.1987). It is therefore appropriate to consider the delegation question in the context of the federal government’s extensive condemnation powers. The power to acquire land by condemnation for a public purpose is an inherent aspect of sovereignty. See Kohl v. United States, 91 U.S. 367, 371-72, 23 L.Ed. 449 (1875). In exercising that power, Congress need not select the particular land to be taken; that function may be delegated to the Executive Branch. See Chappell v. United App. 71 States, 160 U.S. 499, 510, 16 S.Ct. 397, 400, 40 L.Ed. 510 (1896). So long as the condemnation serves a public use, “the necessity or expediency of appropriating any particu- lar property is not a subject of judicial cognizance.” Missis- sippt & Rum River Boom Co. v. Patterson, 98 U.S. 403, 406, 25 L.Ed. 206 (1878). However, “a claim that a taking is not ‘for public use’ is open for judicial consideration.” United States ex rel. T-V.A. v. Welch, 327 U.S. 546, 557, 66 S.Ct. 715, 720, 90 L.Ed. 843 (1946) (Frankfurter, J., concurring). It is settled that the United States may purchase land _ by condemnation for an Indian reservation as a public use. See United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938); State of Minnesota v. United States, 125 F.2d 636, 640 (8th Cir.1942). That same power author- izes Congress to acquire non-reservation lands in trust for a public use that benefits Indians or Indian tribes. But the question under the nondelegation doctrine is, for what public use does § 465 authorize the Secretary to acquire land. By defining no boundaries to the exercise of this power, the statute leaves the Secretary free to acquire for a multitude of purposes, for example, to expand a reserva- tion, to provide farm land for rural Indians, to provide a factory for unemployed urban Indians, to provide a golf course for tribal recreation, or [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0752%3A2. Public record. Not legal advice.