# Petition for Writ of Certiorari — Kickapoo Traditional Tribal Council of Texas v. Texas (No. 07-1109) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0671%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text Supreme Court U.S. Cy O71109FEFB 25 2008 No. OFFICE OF THE CLERK | IN THE Supreme Court of the United States KICKAPOO TRADITIONAL TRIBE OF TEXAS, Petitioner, Vv. STATE OF TEXAS, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR WRIT OF CERTIORARI EDMUND C.GOODMAN JENNIFER P. HUGHES HOBBS, STRAUS, DEAN Counsel of Record & WALKER, LLP CHARLES A. HOBBS 806 SW Broadway JERRY C. STRAUS Ste. 900 JOSEPH H. WEBSTER Portland, OR 97205 HOBBS, STRAUS, DEAN & (5603) 242-1745 WALKER, LLP 2120 L Street, NW, Ste. 700 Washington, DC 20037 (202) 822-8282 Counsel for Petitioner WILSON-EPES PRINTING Co., INC. — (202) 789-0086 -— WASHINGTON, D.C. 20002 QUESTIONS PRESENTED The Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701-2721, 18 U.S.C.§1166-1168 (1988), granted states a limited role in the regulation of Indian gaming, through gaming "compacts" negotiated in "good faith" with tribes. To prevent state exercise of veto power over tribal gaming, the IGRA also authorized tribal suits in federal court to compel "good faith” negotiations allowing: (1) a court ordered mediation process for the selection of a compact by the mediator, and (2) a fallback remedy allowing the Secretary of the Interior to issue "procedures" regulating the gaming if a state refused to sign the mediator-selected compact. In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), this Court held that the Eleventh Amendment prevented the application of IGRA's judicial remedy provisions to an unconsenting state, but did not disturb the Eleventh Circuit's ruling that Secretarial "procedures" were still available. The decision below, which rejected the Eleventh Circuit's analysis, has created a conflict among the circuits on this issue, which requires this Court to answer the critical questions left open by the Seminole decision: 1. Does a state's refusal to consent to IGRA's judicial remedy also nullify the Secretary's fallback authority to issue procedures to regulate Indian gaming? The Fifth Circuit held that it did, contrary to the reasoning of the Ninth and Eleventh Circuits. 2. If the Secretary's fallback authority to regulate Class III gaming is struck down, as the Fifth Circuit held, then a corollary question has to be decided — il should not IGRA's now-inappropriate requirement of a Tribal-State compact fall also, consistent with this Court's severance analysis under Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-85 (1987)? This question was fully argued by the Tribe, but the Fifth Circuit elected not to address it. ili PARTIES TO THE PROCEEDING Pursuant to Rule 14.1(b), the following list represents all the parties appearing here and before the United States Court of Appeals for the Fifth Circuit: Petitioner here is the Kickapoo Traditional Tribe of Texas, a federally-recognized Indian tribe. The Tribe originally joined this suit as a defendant- intervenor, alongside the other appellees at the Fifth Circuit (originally defendants in the District Court) the United States of America, the United States Department of the Interior, and the Secretary of the Interior, Dirk Kempthorne. The federal defendants have informed the Petitioner that they do not intend to file a petition for a writ of certiorari in this case. Appellant below and respondent here is the State of Texas. iv TABLE OF CONTENTS Questions presented Parties to the proceeding Table of contents Opinions below Jurisdiction Statutes and regulations involved Statement of the case A. Factual background B. Proceedings below Reasons for granting the petition I. The Fifth Circuit's decision creates a conflict among the circuits on a question of exceptional importance concerning the Indian Gaming Regulatory Act II. The Fifth Circuit's decision ignores this Court's relevant authority regarding an exceptionally important issue of administrative law III. The Fifth Circuit's ruling conflicts with relevant decisions of this Court by failing to meet its obligation under the judicial I GID ia sina vcecncnccncdsasesnnstensaccans 20 Conclusion APPENDIX Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Page Texas v. United States, 497 F.3d 491 (5th Cir. 2007) (United States Court of Appeals for the Fifth Circuit — Opinion Below) ................. la Texas v. United States, 362 F. Supp. 2d 765 (W.D. Tex. 2005) (United States District Court — Opinion Below) séuceasenvenie disiinsbiaieh cobnianinemtinenettabenbsapeies CUM Denial of Rehearing Petition (United States Court of Appeals for the I IN Nite ciinacacdsescacesuesieskanenes 9la 25 U.S.C. §§ 2701, 2702 and a 93a BB CPB. © BOY .nccncacccsccscscesscesssseses 102a 25 U.S.C. SS FB Oi © ...0c...c.s0. | | ERED) warrsne i, 28 United States v. Booker, 543 U.S. 220 (2005)........ 3 United States v. Haggar Apparel Co., 526 U.S. 380 CRED aisssisesvisnasscnisccancsnnsnciaanacendeasionssemeesassa 17 vill Cases — Continued: Page United States v. Mead Corp., 533 U.S. 218 a 16, 17, 18, 19 United States v. O'Hagan, 521 U.S. 642 (1997) United States v. Spokane Tribe, 139 F.3d 1297 (9th EE ae POE passim Statutes, Regulations, and Legislative History: RITE TUNED «1c, cnccnensntogrdseecndscussesencnnnuns aa . mIIES, Oe ss ccsssasateuanessoecnsbssanvensouono 2.15.17 ES Ta ee as 2,15, 17 Indian Gaming Regulatory Act: 18 U.S.C. §§1166-1168 .......cc.ccccseeee. i, 1 25 U.S.C. § 2701 ooccccccccecceseeceseeeeee 13, 24 25 U.S.C. § 270M) ..ccccccccccesceceseeeeeseees 5 25 U.S.C. § 270104)... eccccceceeceoceeeeees 22 25 U.S.C. § 270105)... ccccceeeee. 5, 22 25 U.S.C. § 2702 oocceccccccsesseeeeseecees 13, 24 ix Statutes, Regulations, and Legislative History — Continued: Page Indian Gaming Regulatory Act — Continued: 25 U.S.C. § 2702(2).....cceccccescsessseeevees 22 BE CEG Oe ia ieiinitnstciiniassccdnctcns 5 25 U.S.C. § 2710(b)(2)(B) ................... 5 Sk Te tS een 5, 15 25 U.S.C. § 2710(d)(1)(B) ............... oO, 7 25 U.S.C. § 2710(d)(3){A) ............. 5, 14 25 U.S.C. § 2710(d7)(ADG).........00..... 6 25 U.S.C. § 2710(d)(7)(B) ......... passim BE DBAs. BSF vcccescincsscstinases 17 gk ioe |. : ene 12, 23, 26 Oe £1 eee 1 Senet TRINA Ut SII” setceeicentbonenioveaiossuasuesbeimnieenniensaaanaae 8 Be ae, I TIED iis siccnscessuptatisnanachosniiadesmnabadieaate 1,8,15 Sy i Se SE I cccetesisinsinsensctininniodiiintnteiunieuniiniedenin 8,15 ee ee le Oe SEE cicaatscrohecssnaasaunsenbntateiannnneananeied 8 xX Statutes, Regulations, and Legislative History — Continued: Page S. Rep. No. 100-446 (1988), as reprinted in 1988 EINE TIT icsinxsicnes naslaciecdenadbensshansaasanntas 5, 19, 22 The Kickapoo Traditional Tribe of Texas respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. OPINIONS BELOW The opinion of the Fifth Circuit Court of Appeals is reported at 497 F.3d 491 (5th Cir., August 17, 2007) (Appendix A). The opinion of the District Court is reported at 362 F. Supp. 2d 765 (W.D. Tex., August 18, 2004)! (Appendix B). JURISDICTION The Court of Appeals denied the Tribe's and the United States’ petition for rehearing en bancon November 28, 2007, and entered judgment December 6, 2007 (reprinted at Appendix C). This Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTES AND REGULATIONS INVOLVED This case involves provisions of the Indian Gaming Regulatory Act, Public Law 100-497, codified at 25 U.S.C. §§ 2701-2721, 18 U.S.C. §1166-1168 (1988) (relevant portions excerpted at Appendix D), the Procedures Regulations promulgated by the Secretary of the Interior under the authority of the Act, 25 C.F.R. Part 291 (Appendix E), and what are 1 The reported opinion reports the date of decision as August 18, 2004. The date of decision, however, was March 30, 2005. This Petition-cites the case with the correct year: 2005. 2 known as the "general authority" statutes at 25 U.S.C. §§ 2 and 9 (Appendix F). STATEMENT OF THE CASE This Court is called upon to address the continuing validity of the Indian Gaming Regulatory Act ("IGRA" or the "Act") — one of the most important laws affecting Indian tribes ever enacted by Congress, for the purpose of enabling tribes to become self-supporting — in light of this Court's prior decision in Seminole Tribe of Florida v. Florida.2 In Seminole Tribe, this Court struck, as applied, one portion of the Act — the judicial remedy that allowed tribes to sue a state without its consent where the state refused to negotiate a Class III gaming compact with the tribe — as unconstitutional. The Court, however, left open the question of whether Congress's fallback remedy for tribes (the issuance of Secretarial "procedures" to regulate tribal gaming when a state refuses to participate in the statutory compacting process) continued to survive.? Two circuit courts — the Ninth and Eleventh — have reasoned that the Secretarial procedures remedy does survive, in effect e Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (holding that IGRA's judicial remedy, which permitted a tribe to sue a state, was unconstitutional as applied when a state asserted its Eleventh Amendment sovereign immunity from such suit). 3 Seminole Tribe, 517 U.S. at 76 n. 18 (noting that the Court "doles} not here consider, and expressles] no opinion upon" that portion of the Eleventh Circuit's holding that the procedures remedy remains available to the Tribe). See also Florida v. Seminole Tribe of Florida, 517 U.S. 1133 (1996) (denying certiorari on state's petition to review that portion of the Eleventh Circuit's decision). 3 treating the Seminole Tribe decision as a limited severance of the judicial remedy only, since that was the only part of the remedial framework that was constitutionally flawed. In a decision at odds with its sister circuits, however, the court below has struck down the Secretary's attempt — through the Procedures Regulations at issue here — to maintain the continued effectiveness of as much of the remaining language of the Act as possible. Moreover, and perhaps most far-reaching in its implications, the decision below refused to address the corollary argument repeatedly raised by the Tribe throughout this litigation,’ that if the fallback provision of the Act (Secretarial procedures) is struck down, then should not the now-inappropriate requirement of a Tribal-State gaming compact be struck down as well? As the Fifth Circuit left it, the fallback remedy is no longer available to tribes. The Fifth Circuit's failure to address this question puts its decision at odds with this Court's precedent in Alaska Airlines, Inc. v. Brock’ and numerous similar decisions,® which required the Fifth Circuit to ensure 4 Judge King, in her concurring opinion below, stated that this issue was not before the Fifth Circuit. Texas v. United States, 497 F.3d 491, 512 (5th Cir. 2007). The record, however, shows the Tribe repeatedly argued this issue from the beginning of the case in the District Court and up through the Fifth Circuit. See note 63, infra. 5 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-85 (1987). 6 See, e.g., United States v. Booker, 543 U.S. 220, 246-49 (2005); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 19111999): Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996) (plurality opinion); Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality 4 that its severance of part of the statute (here, the availability to the Tribe of any remedy at all, where the state asserts its sovereign immunity to the judicial remedy) did not leave the remainder of the statute operating In a manner contrary to that intended by Congress. While acknowledging that the decision could result in an unintended state veto power over Indian gaming contrary to Congress's intent, the Fifth Circuit simply refused to take this necessary and required step. The decision, if left standing, will have wide- ranging consequences. It will adversely impact the ability of all tribes in the Fifth Circuit to exercise their rights under IGRA to conduct gaming as a means of generating revenue where the state in which a tribe is located simply refuses to participate in the IGRA framework. It will adversely impact the relationships between states and tribes in other circuits by undermining the deliberate and careful balance of tribal rights and state authority crafted by Congress, creating confusion and sowing discord. The Court should accept certiorari to avoid these impacts and ensure that the Act continues to function as Congress intended. A. FACTUAL BACKGROUND Congress enacted IGRA in 1988 to provide a statutory framework for the regulation of Indian gaming with the intent of ensuring that such gaming opinion); Buckley v. Valeo, 424 U.S. 1, 108-09 (1976) (per curiam) (quoting Champlin Refining Co. v. Corp. Comm'n of Oklahoma, 286 U.S. 210, 234 (1932)). 5 was operated to provide tribes with revenue for carrying out important governmental functions.? The statute included a carefully balanced compromise between Indian tribes' pre-existing right to conduct gaming free of state regulation® and the states’ desire to exercise authority in this area.? IGRA contains a limited opportunity for states to participate in the regulation of what the Act defines as "Class III" Indian gaming.!° This opportunity is expressly conditioned upon a state's participation in IGRA's statutory scheme, which requires the state to negotiate a compact in good faith with the tribe," as well as by IGRA's recognition and continued protection of a tribe's right to conduct such gaming if the state "permits such gaming for any purpose by any person, organization, or entity."!2 7 See 25 U.S.C. § 2701(1) (finding that "numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue"); § 2710(b)(2)(B) (limiting uses of gaming revenue to listed governmental purposes). 8 See 25 U.S.C. § 2701(5) ("Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.”). Accord California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987). 9 See 25 U.S.C. § 2710(d). See also S. Rep. No. 100-446, at 6 (1988), as reprinted in 1988 U.S.C.C.A.N. 3071, 3076. 10 Class III includes high-stakes gaming such as slot machines, casino games, lotteries, and pari-mutuel betting 25 U.S.C. § 2703(8). a 25 U.S.C. § 2710(d)(3)(A). 12 25 U.S.C. § 2710(d)(1)(B). 6 As part of this careful compromise, Congress included a remedial framework for tribes faced with states that refused to negotiate or negotiate in good ' faith.18 The remedial] framework involves two distinct stages. The first stage authorizes the tribe to sue the state in federal court, in which the state has the burden of demonstrating that it negotiated in good faith, and if it does not, mediation and negotiation of a compact is mandated.!4 The second stage is triggered only when the state refuses to consent to the compact chosen at the conclusion of the litigation process, at which point the statute requires the Secretary of the Interior to prescribe "procedures" in lieu of a compact under which the tribe can conduct Class III gaming on its lands.!5 The Kickapoo Tribe's 125-acre reservation is located in a remote area outside Eagle Pass in Maverick County, Texas, along the border with Mexico. The vast majority of the Tribe's members live in poverty.'© In an effort to raise increased governmental revenue to fund services to its members and to create jobs, the Kickapoo Tribe sought to exercise its rights under IGRA to offer those forms of Class III gaming permitted by the 13 25 U.S.C. § 2710(d)(7)(A) (i), (BXi-vii). 14 25 U.S.C. § 2710(d)(7)(B)G-vi). 15 25 U.S.C. § 2710(d)(7)(B)(vii). 16 See (ROA, Attachments to Document #50, Exh. 3 (Joint Stipulations of Fact, FOF No. 18) and Exh. 4 (United States Census Bureau 2000 Data) (showing 68.1 percent of families and 74.3 percent of individuals for the geographic area of the Kickapoo (TX) Reservation are living below the poverty level) (This citation is to the Record on Appeal below in the Fifth Circuit). 7 State of Texas.!” In 1995, the State refused to enter into negotiations with the Tribe, and the Tribe filed suit pursuant to IGRA on October 13, 1995.'8 Rather than attempt to demonstrate that its refusal to negotiate was in "good faith," the State moved to dismiss the lawsuit on sovereign immunity grounds. That motion was granted based on the Seminole Tribe decision, which held that IGRA's judicial remedy provisions waiving state sovereign immunity could not be constitutionally applied to an unconsenting state. The Seminole Tribe decision revealed an unintended gap in IGRA: how to address the situation where a state refuses to participate in the statutory framework by affirmatively blocking — through its Eleventh Amendment immunity — the operation of the judicial remedy stage. The Secretary responded to this gap by promulgating the Procedures Regulations at issue here, consistent with the Eleventh Circuit's saving construction of IGRA in 17 25 U.S.C. § 2710(d)(1)(B). Texas permits a broad range of Class IIT gaming including all lottery games (including keno, lotto and numbers); traditional casino style games; and off-track pari-mutuel betting and pari-mutuel betting through simulcasting as recognized by the U.S. Department of the Interior. May 24, 2007, Preliminary Scope of Gaming Decision, George Skibine, Acting Principal Assistant Secretary — Indian Affairs, to Juan Garza, Jr., Kickapoo Tribal Chairman, submitted to the Fifth Circuit on June 18, 2007. The scope of Class Ill gaming that should be allowed to the Tribe is not at issue in this case. 18 See Texas v.United States, 362 F. Supp. 2d 765, 767 (W.D. Tex 2005). 8 the Seminole Tribe case.*9 The Procedures Regulations (which provide ample opportunity for state participation) are available to a tribe if, and only if, the state refuses to participate in the "good faith" suit and has the suit dismissed on sovereign immunity grounds.2° On December 11, 2003, the Tribe applied for Secretarial Procedures. On January 12, 2004, the Secretary invited the State of Texas to comment on the Tribe's proposal and submit an alternative. The State rejected the offer to participate, and instead filed this lawsuit. B. PROCEEDINGS BELOW The State filed this case in the United States District Court for the Western District of Texas on March 11, 2004, seeking a declaration and injunction against the Procedures Regulations promulgated by the Secretary pursuant to the IGRA.21 Federal court jurisdiction was based on 28 U.S.C. § 1331 (federal question jurisdiction) and the Administrative Procedure Act, 5 U.S.C. § 705. The Tribe intervened as a party defendant. On March 30, 2005, upon cross- motions for summary judgment, the District Court held that (1) the State's case was not ripe, and (2) that the Secretary had the authority to promulgate the regulations, and ordered that the State's cause of action be dismissed without prejudice. 19 Seminole Tribe of Florida v. Florida, 11 F.3d 1016, 1029 (11th Cir. 1994). 20 25 C.F.R. § 291.3(d), (e) (2007). 21 25 C.F.R. Part 291. 9 The State appealed to the United States Court of Appeals for the Fifth Circuit. Both the United States and the Tribe participated in the appeal. On August 17, 2007, the Court issued a fractured decision, with all three panel judges writing separately.22 Chief Judge Jones delivered the opinion of the court on the issue of ripeness, joined by Judge King, holding that the State's cause of action was ripe.23 Chief Judge Jones and Judge King concurred in the holding that the Procedures Regulations were invalid, but wrote separate and substantially differing opinions as to the grounds therefor. Judge Dennis wrote a detailed and comprehensive dissent. The Tribe and the United States both filed timely petitions for rehearing en banc. The Fifth Circuit issued an order denying the petitions for rehearing on November 28, 2007. This petition for certiorari has been timely filed. REASONS FOR GRANTING THE PETITION This case involves an issue of exceptional importance that impacts Indian tribes and states around the country, as well as the United States. Under the result created by the decision below, tribes are barred from the fallback remedy Congress intended to be available to a tribe faced with a state that refuses to consent to IGRA’s remedy process, thereby undoing Congress’s careful compromise. The decision clashes with the reasoning of two sister 22 Texas, 497 F.3d at 491, 511 (King, J., concurring), 512 (Dennis, J., dissenting). 23 While the Tribe argued below that the case was not ripe, it does not seek certiorari on the question of ripeness. 10 circuits on this same issue (the continued availability of the Secretarial procedures remedy in light of Seminole Tribe), fails to grant appropriate deference to the reasonable construction of a statutory gap by the Executive Branch official with delegated authority under the statute, and conflicts with this Court's directly relevant precedent concerning statutory severance. I. The Fifth Circuit's Decision Creates a Conflict Among the Circuits on a Question of Exceptional Importance Concerning the Indian Gaming Regulatory Act The two other circuits that have considered IGRA's remedial framework in light of Seminole Tribe's holding both reasoned that the Act can continue to function in the manner intended by Congress where the judicial remedy is severed, recognizing that a state's refusal to participate in the judicial remedy does not deprive a tribe of all its statutorily protected rights.24 Rather, both circuits recognized the continued availability of the Secretarial procedures as a means of regulating and facilitating a tribe's right to offer Class ITI gaming when the tribe is located in a state that otherwise permits such gaming.2® 24 See United States v. Spokane Tribe, 139 F.3d 1297, 1301-02 (9th Cir. 1998): Seminole Tribe, 11 F.3d at 1029 (11th Cir. 1994). 25 Thus, under IGRA, the only tribes that would ever be completely unable to engage in Class III gaming are those tribes located in states that do not permit any Class III gaming anywhere in the state by anyone under any circumstances. 11 The Fifth Circuit's decision clashes with the reasoning of the Ninth and Eleventh Circuits concerning the impact of this Court's Seminole Tribe holding on the continuing availability of the fallback Secretarial procedures remedy. The primary opinion in the Fifth Circuit decision in fact misstates the case and its relation to Seminole Tribe from the first sentence, asserting that the Procedures Regulations are an attempt to "circumvent" the Seminole Tribe decision.26 Seminole Tribe, however, did not strike down the second stage of the IGRA remedial framework, but rather left open the question of the continued availability of the fallback procedures remedy.2? The Ninth and the Eleventh Circuits, contrary to the Fifth Circuit here, found that the continued availability of the Secretarial procedures remedy was consistent with the holding in Seminole Tribe, not a "circumvention" of it.28 The Ninth and Eleventh Circuits both reasoned that the Secretarial procedures remedy was an indispensable component of the regulatory structure and compromise framework established by IGRA, and that the judicial remedy could be severed or invalidated while still leaving this provision in place. The Eleventh Circuit in Seminole Tribe, 26 Texas, 497 F.3d at 493. 27 Seminole Tribe, 517 U.S. at 76 n. 18. In fact, the Court refused to grant certiorari on this question. Florida, 517 U.S. 1133 (1996). 28 Spokane Tribe, 139 F.3d at 1301-02: Seminole Tribe, 11 F 3d at 1029. While the latter decision came out prior to this Court's decision in the same case, the holding on the key point — that IGRA's judicial remedy is invalid when the State does not consent — was the same. 12 consistent with this Court's subsequent decision on certiorari in that case, found that IGRA's judicial remedy provision was unconstitutional as applied to a state that did not consent to suit. The Eleventh Circuit also addressed the question of whethe. the entire IGRA (or at least all its state participation requirements) must be struck if the judicial remedy was determined to be unavailable, as the federal District Court for the Eastern District of Washington had previously held?9: 29 The final question we must resolve is whether all provisions for state involvement in class III gaming also fail, as the tribes contend. We hold that they do not. IGRA contains an explicit severability clause, § 2721; and we find no “strong evidence” to ignore that plain congressional directive. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S.Ct. 1476, 1481, 94 L.Ed.2d 661 (1987). Nevertheless, we are left with the question as to what procedure is left for an Indian tribe faced with a state that not only will not negotiate in good faith, but also will not consent to suit. The answer, gleaned from the statute, is simple. One hundred and eighty days after the tribe first requests negotiations with the state, the tribe may fiie suit in district court. If the state pleads an Eleventh Amendment defense, the suit is dismissed, and Confederated Tribes of Colvilie Reservation v. Washington, No. CS-92-0426, slip op. at 4-5 (E.D. Wash. June 4, 1993); (ROA, Attachments to Doc. #50, Exh. 11) (striking down IGRA Class III provisions in absence of remedy for tribes) (This citation is to the Record on Appeal below in the Fifth Circuit). 13 the tribe, pursuant to 25 U.S.C. § 2710(d)(7)(B)(vid), then may notify the Secretary of the Interior of the tribe's failure to negotiate a compact with the state. The Secretary then may prescribe regulations governing class III gaming on the tribe's lands. This solution conforms with IGRA and serves to achieve Congress’ goals, as delineated in § § 2701-02.30 Similarly, the Ninth Circuit also reasoned that the judicial remedy cou:d be severed while leaving the procedures remedy intact, noting that: IGRA as passed thus struck a finely-tuned balance between the interests of the states and the tribes. Most likely it would not have been enacted if that balance had tipped conclusively in favor of the states, and without IGRA the states would have no say whatever over Indian gaming. *! The court went on to note that, in light of this 30 Seminole Tribe, 11 F.3d at 1029. Contrary to a previous assertion by the State of Texas, the Eleventh Circuit's determination that the Secretary has the authority to issue procedures was not dictum since it was a central and necessary part of the court's decision. See Gochicoa v. Johnson, 238 F.3d 278, 286 n.11 (5th Cir. 2000) (a statement is dictum only if it “could have been deleted without seriously impairing the analytical foundations of the holding"). As noted by the court: “The final guestion we must resolve is whether all provisions for state involvement in class Il] gaming also fail, as the tribes contend. We Ao/dthat they do not.” Seminole Tribe, 11 F.3d at 1029 (emphases added) u Spokane Tribe, 139 F.3d at 1301 14 Court's decision in Seminole Tribe, the Eleventh Circuit's reasoning about the continued availability of the procedures remedy "is a lot closer to Congress's intent than mechanically enforcing IGRA against tribes even when states refuse to negotiate."° As the Eleventh and Ninth Circuits both recognized, Congress did not delegate its regulatory authority over tribal gaming to states — it provided the states with an opportunity to participate in the compacting process along with the tribes and the federal government, and it conditioned that participation on the states’ willingness to participate in the statutory process in good faith.33 Congress intended for the good faith requirement to be enforceable in federal court, and provided for a judicially supervised mediation process under which the state has the burden of demonstrating that its refusal to negotiate a compact was done in good faith.44 Recognizing that some states might still refuse to participate in the statutory process, Congress provided tribes with a fallback remedy — the ability to go directly to the Secretary of the Interior, who has the express statutory authority to prescribe "procedures" to govern tribal gaming in the absence of a compact.* Congress did not anticipate that the Supreme Court would hold that it could not require states to participate in the judicially supervised component of the statutory process. With no way to compel 32 Id. at 1302. 33 25 U.S.C. § 2710(d)(3)(A). 34 25 U.S.C. § 2710(d)(7)( Bi). 25 U.S.C. § 2710(d)(7)(B)(vii). 35 U * 15 participation in the statutory process by states that will not waive their Eleventh Amendment immunity from suit, the tribes, states, and United States were left with an unintended gap in the statute. The Ninth and Eleventh Circuits reasoned that the Act could survive — 1.e., could continue to function consistent with Congress's intent — by recognizing the continued availability of the Secretarial procedures remedy. The Secretary of the Interior, following this reasoning, exercised his general authority to promulgate regulations under 25 U.S.C. §§ 2 and 9, and his specific authority under 25 U.S.C. § 2710(d), and filled the gap with the Procedures Regulations at issue here: providing tribes located in states that will not participate in adjudication of their good faith or judicially supervised mediation of compact negotiations with a path to the fallback remedy provided by Congress.*6 By invalidating the Procedures Regulations, the decision below has undermined the carefully structured compromise between tribes and states intended by Congress, based, largely, on the illogical ground that where a state asserts its sovereign immunity to avoid the judicial remedy it has somehow been denied the impartial decision maker intended by Congress.?? As a result of the decision, states in the Fifth Circuit can bar tribal access to the fallback procedures mechanism — despite allowing gaming themselves — by simply refusing to negotiate and refusing to litigate the question of their lack of 36 25 C.F.R. Part 291. 37 Texas, 497 F.3d at 508. The Procedures Regulations are available to a tribe if, and only after, the state asserts its immunity to the good faith lawsuit. 25 CFR § 291.3(d). 16 good faith in federal court: an outcome contrary to Congress's intent when enacting IGRA. The Court should accept certiorari to resolve the conflict among the circuits on this critically important matter. II. The Fifth Circuit's Decision Ignores this Court's Relevant Authority Regarding an Exceptionally Important Issue of Administrative Law The Fifth Circuit's ruling, and in particular the primary opinion by Chief Judge Jones, diverges substantially from existing relevant authority from this Court regarding the ability of an Executive Branch official to fill an unintended and unforeseen gap in a statute he was delegated authority to administer, and diverges from this Court's instruction to "respect and give effect to" the kinds of legislative compromises embodied in IGRA's remedial framework.*8 The Fifth Circuit inappropriately failed to grant deference to the Secretary's reasonable. construction of that statute — which respects and gives effect to Congress's compromise in the IGRA -. and thus plows new and uncharted ground in the field of administrative law. First, the decision below focuses too narrowly on one provision of the Act when analyzing the Secretary's authority. United States v. Mead Corp. and other decisions instruct that, rather than analyze various sources of agency authority one-by-one (as the Fifth Circuit did below in determining that the Secretary had not been delegated sufficient authority 38 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 94 (2002). 17 to issue the Procedures Regulations), federal courts must take a more comprehensive and integrated approach to the statute(s) at issue.39 Express delegation of general rulemaking authority is, these decisions hold, especially powerful grounds for deference,*° as is the fact that Congress vested the agency with overall responsibility for administering or implementing a statute or program.‘! Here, the exercise of the Secretary's regulatory authority was grounded in such a delegation of authority. In addition to the Secretary's express delegated authority to carry IGRA into effect (including, specifically, the fallback remedy for tribes),42 his authority to issue the regulations at issue was based on two statutes whose plain terms confer power on the President to "prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs" 43 and to the Commissioner of Indian Affairs (under direction of the Secretary of the Interior) to “have the management of all Indian affairs and of all matters arising out of Indian relations" pursuant to regulations adopted by the President.44 Moreover, 39 United States v. Mead Corp., 533 U.S. 218, 226 (2001): United States v. O'Hagan, 521 U.S. 642, 673 n. 19 (1997). 40 See Mead, 533 U.S. at 226; United States v. Haggar Apparel Co., 526 U.S. 380, 392-93 (1999); O'Hagan, 521 U.S. at 673. 41 See Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984); Morton v. Ruiz, 415 U.S. 199, 231 (1974). 42 See 25 U.S.C. §§ 2710(d)(8), 2710(d)(7)(B)(vii)). 43 25 U.S.C. § 9. 44 25 U.S.C. § 2. See also Morton, 415 U.S. at 231 ("In the area of Indian affairs, the Executive has long been empowered to promulgate rules and policies, and the power has been given explicitly to the Secretary... ."). 18 the decision below — directly contrary to the admonition of this Court — failed to grant the appropriate deference to the Secretary's determination of his own statutory authority.45 Second, the Fifth Circuit failed to follow this Court's admonition that it must accept the Secretary's interpretation if the following three factors are met: Congress has not previously spoken directly to the issue; the agency has been delegated authority under the statute; and the agency's interpretation is reasonable.46 The Secretary's Procedures Regulations meet these three requirements: (1) in this case, Congress did not speak directly to the issue because it did not foresee a state's ability to assert Eleventh Amendment 45 Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 380-81 (1988) (Scalia, J., concurring). In this frequently cited concurring opinion, Justice Scalia collected numerous examples supporting this approach and explained: giving deference to an administrative interpretation of its statutory jurisdiction or authority is both necessary and appropriate. It is mecessary because there is no discernible line between an agency's exceeding its authority and an agency's exceeding authorized application of its authority. To exceed authorized application is to exceed authority. Virtually any administrative action can be characterized as either the one or the other, depending upon how generally one wishes to describe the "authority.". And deference is appropriate because it is consistent with the general rationale for deference: Congress would naturally expect that the agency would be responsible, within broad limits, for resolving ambiguities in its statutory authority or jurisdiction. Td. at 381-82 (internal citations omitted). 46 Mead, 533 U.S. at 229. 19 immunity to avoid its burden of demonstrating that its refusal to participate in IGRA was in "good faith"47; (2) Congress did, however, delegate authority to the Secretary of the Interior to implement the Act; and (3) the Secretary's interpretation of the statutory gap revealed by Seminole Tribe is reasonable, since it preserves the remaining part of the remedial framework and ensures that the statute continues to function consistent with the manner intended by Congress — keeping intact a critical part of a remedial framework specifically intended to protect IGRA's compromise between states and tribes.48 In such situations, the question for courts to decide — with deference to agencies’ expertise and their political accountability — is whether the agency resolution is "one that Congress would have sanctioned."49 Third, the decision below does not follow this Court's clear instruction that "a reviewing court has no business rejecting an agency's exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency's chosen resolution seems unwise."59 Rather, the primary opinion in the decision below is concerned only with the preservation of a single "procedural safeguard," a judicial determination of whether the state met its 47 25 U.S.C. § 2710(d)(7)(B) Gi). See Spokane, 139 F.3d at 1300 (quoting Senator Inouye, one of IGRA's sponsors, as stating “if we had known that this proposal of tribal state compacts that came from the States and was strongly supported by the States, would later be rendered virtually meaningless by the action of those states . .. we would not have gone down this path"). 48 Spokane, 139 F.3d at 1302: S. Rep. No. 100-446, at 13. 49 City of New York v. FCC, 486 U.S. 57, 69 (1988). Mead, 533 U.S. at 229. 20 burden of demonstrating that it negotiated in good faith — a determination that is unavailable to a state only if the state chooses not to participate. This cramped reading of the statute is inconsistent with the underlying purpose of the statute and the context of its enactment, in which Congress did not expressly limit the Secretary's broad powers to authorize gaming, except to the extent that it required a compact for Class III gaming and specifically established a series of steps to ensure such a compact was reached. In that context, given that the Act itself requires the Secretary to promulgate gaming procedures in the event that the judicial process fails, the regulations must be accepted "unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned."51 This Court should grant certiorari to ensure that the Fifth Circuit remains consistent with relevant Court precedent on this important question of administrative law. III. The Fifth Circuit's Ruling Conflicts with Relevant Decisions of this Court by Failing to Meet its Obligation under the Judicial Severance Doctrine Finally, the Fifth Circuit's decision conflicts with relevant decisions of this Court regarding judicial severance of statutes. As this Court instructed in Alaska Airlines, *? even where a statute, like IGRA, has a severability clause, the resulting Chevron, 467 U.S. at 845. 480 U.S. at 685. ~ 21 statute after severance of its unconstitutional provisions cannot remain in force if that resulting statute would be inconsistent with Congress's intent. As articulated in A/aska Airlines, where.a statute is judicially severed it must be done in such a way to ensure that "the statute will function in a manner consistent with the intent of Congress."53 If this cannot be done, the statute must be declared invalid. The purpose of this obligation is obvious: to protect the constitutional separation of powers by ensuring that courts do not legislate. By failing to meet this obligation, the Fifth Circuit's ruling has encroached on the policy-making domain reserved to Congress under the Constitution. By refusing to recognize the validity of the Procedures Regulations, but failing to address the question of the continuing validity of IGRA's provisions for state involvement in Class III gaming, the panel's decision has the potential to result in a version of IGRA that Congress did not intend to pass. Congress enacted the IGRA "to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments" and: to provide a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the Id. (emphasis in original). 22 operator and players.*4 The IGRA granted states a limited, conditional opportunity (through the compacting process) to participate in the regulation of Indian Class III gaming that states previously lacked, but also provided a remedy for tribes to be able to conduct Class III gaming in those situations where a state objects to such gaming and refuses to enter into a compact. The IGRA's express statutory language as well as its legislative history demonstrates that Congress did not intend for states to have a veto over tribal gaming under IGRA. The IGRA's statutory findings note, for example, that "a principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government" and that "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity."55 The Committee Report accompanying the bill stated: It is the Committee's intent that the compact requirement for class III not be used as a justification by a State for excluding Indian tribes from such gaming or for the protection of other State-licensed gaming enterprises from free market competition with Indian tribes.*® 54 25 U.S.C. § 2702(1), (2). 85 25 U.S.C. § 2701(4), (5). 56 See S. Rep. No. 100-446, at 13. 23 Granting the state a role in the regulation of gaming was meant to be consistent with these findings and purposes, and not an opportunity for the state to undermine them. For this reason Congress enacted the remedial provisions of the IGRA, including the fallback remedy of Secretarial procedures, to ensure that tribal rights would be protected. Therefore, under the severance doctrine, when the first stage of the remedial process — the "good faith" lawsuit — is declared void where the state refuses to participate, the fallback remedy of Secretarial procedures must remain in place as a saving construction of the statute to ensure that the statute continues to operate in the manner intended by Congress. This limited severance is in fact consistent with the severability clause in the statute’? as well as with the severability doctrine itself, since severing the judicial remedy while leaving the procedures remedy in place (which does not share the constitutional flaw of subjecting a state to suit without its consent) is consistent with the intent of Congress in ensuring that tribes have a remedy when faced with a recalcitrant state. The Eleventh Circuit has already expressly held, in severing the judicial remedy provision of IGRA, that the Secretary has both the power and the duty to issue procedures under the circumstances provided for in the Regulations at issue, noting that this is a "solution [that] conforms with IGRA and serves to achieve Congress' goals, as delineated in 25 U.S.C. § 2721. 24 §§ 2701-02."58 Only by determining that a tribe could go directly to the Secretary for procedures as a fallback remedy did the Eleventh Circuit hold that the Class III compact requirements could stand under a traditional severance analysis, thus recognizing the continued availability of Secretarial procedures as a saving construction necessary to preserve congressional intent.59 The Ninth Circuit Court of Appeals ultimately agreed with the Eleventh Circuit's rationale in the Spokane case, rejecting its own earlier criticism.® Thus, the two circuit courts which have previously addressed the issue both agree that it is proper to sever the unsound portions of IGRA with a saving construction that maintains the Secretary's authority to fill the gap in IGRA's remedial framework.®! In the decision below, the concurring opinion acknowledges that without the Procedures Regulations IGRA would not function as Congress intended — that the decision could result in an 58 Seminole Tribe, 11 F.3d at 1029. 59 Id. Although requested to do so by the States of Florida and Alabama, this Court did not address the decision of the Eleventh Circuit on this issue, and it thus remains the law of that Circuit. Seminole Tribe of Florida, 517 U.S. at 76 n.18. See also Florida, 517 U.S. 1133 (rejecting separate certiorari petition on this issue). 60 Spokane Tribe, 139 F.3d at 1302 ("the Eleventh Circuit's suggestion is a lot closer to Congress's intent than mechanically enforcing IGRA against tribes even when states refuse to negotiate"). 61 See also Santee Stoux Nation v. Norton, No. 8:05 CV 147, 2006 WL 2792734, at *6 (D. Neb. Sept. 26, 2006). 25 unintended state veto power.® The Fifth Circuit's failure to take the next step of determining whether it is necessary to strike down IGRA's state participation requirements, puts it in direct conflict with the statutory severance analysis set out by this Court in Alaska Airlines and other decisions. The Tribe has consistently argued throughout this case that Seminole Tribe's limited severance of IGRA's judicial remedy mechanism requires the continued availability of the fallback procedures remedy as a saving construction of the statute.®? In the alternative, and as a necessary corollary to this argument, the Tribe also argued that if the Secretary cannot fill the gap in IGRA's remedial framework for tribes that face unconsenting states, then the entirety of IGRA's requirements regarding state participation must be declared void as applied when the state refuses to participate in the IGRA remedial process. ®4 The Fifth Circuit, however, failed to address these well-established and long-standing 62 Texas, 497 F.3d at 512 (noting that, as a result of this decision, the state now has "the leverage to block gaming on Indian land under IGRA in a manner wholly contrary to Congress's intent"). 63 The following citations to the record are to the Record of Appeal below in the Fifth Circuit. See Tribe's Brief in Opposition to Preliminary Injunction (March 26, 2004) at 8-9 (ROA 00220-21); Tribe’s Brief in Support of Motion to Dismiss and for Summary Judgment (August 18, 2004) at 31-39 (ROA "Document #50); Tribe's Response to State's Motion for Summary Judgment (August 18, 2004) at 10 (ROA 00809); Tribe's Summary Judgment Reply Brief (September 7, 2004) at 3 (ROA 00877); Transcript of Summary Judgment Hearing (October 26, 2004) at 52:22-58:16 (ROA Volume 7); Tribe's Fifth Circuit Appellate Brief (August 23, 2005) at 46—50. 64 Td. 26 severance principles set forth by the Supreme Court and to discharge its obligation under those principles. If IGRA were left without a remedy for tribes, the statute will no longer function in the manner intended by Congress, as the Ninth and Eleventh Circuits have already held (and as the concurrence below concedes). Therefore, this remedy of the Secretarial procedures cannot be removed from the statute without all its state participation requirements being held invalid when a tribe faces an unconsenting state.® 65 Alaska Airlines, 480 U.S. at 684; Seminole, 11 F.3d at 1029. While IGRA has a severability clause (25 U.S.C. § 2721), that clause merely creates a rebuttable presumption against the need to declare the entire statute invalid. A/aska Airlines, 480 U.S. at 686. At issue here is what portion of the statute needs to be severed to remove the unconstitutional portion while retaining as much of the framework intended by Congress as possible. Moreover, this presumption of severability, even if applicable to this case, would be overcome here because the severance by the decision below will result in a statutory scheme (1) that no longer functions in the manner Congress intended, (2) that bears little resemblance to the scheme enacted by Congress, and (3) that would not be fully operative asa law. Jd. at 684-85. See also Confederated Tribes of Colville Reservation, No. CS-92-0426, slip op. at 4-5: (ROA, Attachments to Doc. #50, Exh. 11) (striking down IGRA Class III provisions in absence of remedy for tribes) (This citation is to the Record on Appeal below in the Fifth Circuit). 27 CONCLUSION The Fifth Circuit's decision improperly jettisons Congress's careful compromise in IGRA. In so doing it clashes with the reasoning of its sister circuits, unduly substitutes its reasoning for that of the Executive Branch official charged with implementing the Act, and grants states power unintended by Congress. The decision violates a fundamental precept of statutory construction, which states that "[clourts and agencies must respect and give effect to these sorts of compromises."®* The Kickapoo Traditional Tribe of Texas respectfully requests that its petition for writ of certiorari be granted so that this Court can complete the analysis on the critical questions left open by Seminole Tribe. Respectfully Submitted, EDMUND C. GOODMAN JENNIFER P. HUGHES HOBBS, STRAUS, DEAN Counsel of Record & WALKER, LLP CHARLES A. HOBBS 806 SW Broadway JERRY C. STRAUS Suite 900 JOSEPH H. WEBSTER Portland, OR 97205 HOBBS, STRAUS, DEAN & (503) 242-1745 WALKER, LLP 2120 L Street, NW Suite 700 February 25, 2008 Washington, DC 20037 (202) 822-8282 66 Ragsdale, 535 U.S. at 94 (citing Mohasco Corp. v. Silver, 447 U.S. 807, 818-819 (1980)) APPENDIX la APPENDIX A: Jexas v. United States, 497 F.3d 491 (5th Cir. 2007) (United States Court of Appeals for the Fifth Circuit — Opinion Below) United States Court of Appeals Fifth Circuit FILED August 17, 2007 Charles R. Fulbruge III Clerk REVISED SEPTEMBER 13, 2007 UNITED STATES COURT OF APPE:SLS FOR THE FIFTH CIRCUIT No. 05-50754 STATE OF TEXAS, Plaintiff-Appellant, versus UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE INTERIOR; DIRK KEMPTHORNE, in his Official Capacity as Secretary of the Department of the Interior, | Defendants-Appellees, KICKAPOO TRADITIONAL TRIBE OF TEXAS, Intervenor-Defendant-Appellee. Za Appeal from the United States District Court for the Western District of Texas Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges. EDITH H. JONES, Chief Judge: This is high-stakes litigation involving a challenge to procedures adopted by the Secretary of the Interior Department (“Secretary”) to circumvent the consequences of the Supreme Court’s Eleventh Amendment decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). An initial question is whether Texas’s challenge to the existence of the Secretarial Procedures is ripe now, before the | Secretary has made a substantive determination on a tribe’s Class III gaming license. We hold that the case is ripe, the State has standing, and the Secretary lacked authority to promulgate the regulations. The district court’s judgment is REVERSED and REMANDED. I. BACKGROUND In the 1980s, various Indian tribes began to seek authority for legalized gambling as a way to earn revenue. As sovereigns, Indian tribes are subordinate only to the federal government. - California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S. Ct. 1083, 1087 (1987). State laws, however, “may be applied to tnbal Indians on their reservations if Congress has expressly so provided.” Id. In Cabazon, the Supreme Court held that because Congress had not so expressly provided, California could not enforce certain anti-gambling laws against an Indian tribe there. Id. at 214, 221-22, 107 S. Ct. at 1091, 1094-95. In response to Cabazon, Congress enacted the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et _seg., to give states a subordinate but significant role in regulating tribal gaming. IGRA separates gaming into classes of escalating stakes. Class I gaming — social games played for minimal value — is within the exclusive jurisdiction of the tribes. 25 U.S.C. §§ 2703(6), 2710(a)(1). Class II gaming — bingo and related activities — is subject to oversight by the National Indian Gaming Commission. 25 U.S.C. §§ 2703(7), 2706(b), 2710(a), (b) & (c). All other forms of gaming, including high-stakes games such as slot machines, casino games, lotteries, and dog racing, are Class III. 25 U.S.C. § 2703(8). Class III gaming, if authorized by the tribe, must be “conducted in conformance with a Tribal-State compact entered into by the Indian Tribe and the State.” 25 U.S.C. § 2710(d)(1). In IGRA, Congress meticulously detailed two separate tracks leading to the institution of a Class III tribal gaming business. On the first track, the tribe and the state may negotiate a voluntary compact governing the conduct of gaming activities, which takes effect essentially upon approval by the Secretary. § 2710(d)(3)(B). The second track begins when no compact has been reached one hundred eighty days after the tribe requests negotiations. IGRA then allows a tribe to file suit against the state in federal court and seek a determination whether the state negotiated in good faith. § 2710(d)(7). If the court finds the state negotiated in good faith, the tribe’s proposal fails. On 4a a finding of lack of good faith, however, the court may order negotiation, then mediation. If the state ultimately rejects a court-appointed mediator’s proposal, the Secretary “shall prescribe, in consulta- tion with the Indian tribe, procedures . . . under which class III gaming may be conducted.” § 2710(d)(7)(B). The Supreme Court held this second track of the congressional scheme flawed under the Eleventh Amendment, because Congress has no authority to abrogate a state’s sovereign immunity from suit under the Indian Commerce Clause of Article I of the Constitution. See Seminole Tribe, 517 U.S. at 47, 116 S. Ct. at 1119. Following Seminole Tribe, a state may waive immunity from suit, or the United States may sue the state to obtain the statutory good-faith determination, but a'state cannot be forced to submit to the tribe’s suit. Seminole Tribe made the second track toward Class III gaming far more difficult to pursue. To work around the decision, the Secretary promulgated notice-and-comment regulations in 1999. See Class III Gaming Procedures, 25 C.F.R. pt. 291 (“Secretarial Procedures” or “Procedures”). The Secretarial Procedures only apply if the state asserts its sovereign immunity and refuses to consent to a tribe’s statutory good-faith suit. 25 C.F.R. §§ 291.1(b), 291.3. In such event, an eligible tribe may submit a Class Ill gaming proposal to the Secretary, who then affords the state sixty days to comment and submit an alternative proposal. 25 C.F.R. § 291.7. At that point, the Secretarial Procedures prescribe two tracks depending on whether the state chooses to submit an alternative compact proposal. 5a If the state does not submit an alternative proposal, the Secretary reviews the tribe’s proposal and either approves it or offers the opportunity for a conference between the state and the tribe to address “unresolved issues and areas of disagreements in the proposal.” 25 C.F.R. § 291.8. The Secretary must then make a “final decision either setting forth the Secretary's proposed Class III gaming procedures for the Indian tribe, or disapproving the proposal.” Id. If the state submits an alternative plan, the Secretary appoints a mediator who, following the same procedures as IGRA prescribes, will resolve . differences between the two proposals. 25 C.F.R. §§ 291.9, 291.10. While, under the Procedures, the Secretary may reject the mediator’s proposal, he “must prescribe appropriate procedures within 60 days under which Class III gaming may take place.” 25 C.F.R. § 291.11 (emphasis added). The difference between IGRA and _ the Secretarial Procedures is that IGRA _ compels appointment of a mediator by the court only after a judicial finding that the state failed to negotiate in yood faith, but under the Secretarial Procedures, the gaming proposal goes forward without any judicial bad-faith determination if the state refuses to waive sovereign immunity. The Secretarial Procedures, in sum, offer two alternatives for a state that insists upon its sovereign immunity: refuse to negotiate, participate (or not) in an informal conference, and take a chance that the Secretary will not accept the tribe’s Class III gaming proposal, 25 C.F.R. § 291.8; or submit its “last best proposal” to a mediator, with the 6a certainty that Class III gaming must be approved on the mediator’s or the Secretary’s terms. 25 C.F.R. § 291.11. In 1995, the Kickapoo Traditional Tribe of Texas (the “Kickapoo”) petitioned the State to enter into a compact facilitating Class III gaming on its land. Texas rejected the Kickapoos’ offer. The tribe’s federal lawsuit against Texas was eventually dismissed under Seminole Tribe. In 2004, the Kickapoo submitted a proposal to the Secretary, who followed the Secretarial Procedures and invited Texas to comment. Texas responded with this lawsuit asking the court to declare the Secretarial Procedures unauthorized and unconstitutional. II. STANDARDS OF REVIEW This court reviews a district court’s legal conclusions, including the decision whether to grant a summary judgment motion, de novo. Garcia _v. LumaCorp, Inc., 429 F.3d 549, 553 (5th Cir. 2005). Jurisdictional issues such as ripeness and standing, as well as questions of statutory interpretation, are also legal questions for which review is de novo. See Bonds v. Tandy, 457 F.3d 409, 411 (5th Cir. 2006) (standing); Groome Res. Ltd., L.L.C., v. Parish of Jefferson, 234 F.3d 192, 198-99 (5th Cir. 2000) (ripeness); In re Reed, 405 F.3d 338, 340 (5th Cir. 2005) (statutory interpretation). A district court’s factual findings, including those on which the court based its legal conclusions, are reviewed for clear error. See Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002). Ta II. DISCUSSION The district court determined in a thoughtful opinion that Texas had standing to sue, but that the State’s claims were not ripe for adjudication. See Order on Defendants’ Motion to Dismiss, Kickapoo Traditional Tribe of Texas v. State of Texas, Cause No. P-95-CA-66 (W.D. Tex. Apr. 2, 1996). The court thus dismissed. Nevertheless, it also opined that the Secretary had implied authority under IGRA and his general statutory responsibility for Indian tribes to promulgate the Procedures. Texas v. United States, 362 F. Supp. 2d. 765, 769-70 (W.D. Tex. 2004). The State appealed. Responding to the parties’ contentions in this court, we conclude that Texas has standing to sue, that its case is ripe, and that the Secretarial Procedures are unauthorized by statute. A. Justiciability Appellees first contend that Texas has no standing to seek invalidation of the Secretarial Regulations because Texas has suffered no injury from the mere existence of the Secretarial Procedures and, in any event, Texas brought any injury on itself by raising a sovereign immunity defense to the Kickapoo Tribe’s enforcement suit. Relatedly, Appellees argue that Texas’s claims are not ripe because any injury that Texas could suffer from the Procedures would only manifest if the Secretary were to prescribe gaming procedures for the tribe at some point in the future. We disagree with each contention. The standing and ripeness doctrines flow largely from Article III of the Constitution, which limits the federal judicial power to the resolution of cases and controversies. Valley Forge Christian Coll. 8a v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 757-58 (1982) (discussing the underpinnings of standing doctrine). In general terms, standing is concerned with whether a proper party is bringing suit, while ripeness is concerned with whether the suit is being brought at the proper time. See Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006). However, the doctrines often overlap in practice, particularly in an examination of whether a plaintiff has suffered a concrete injury, see id. at 1205, and our injury-in-fact analysis draws on precedent for both doctrines. 1. Standing “The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal sta#e in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.” Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703 (1962)). To meet the constitutional standing requirements, (1) the plaintiff must have suffered an “injury in fact,” defined as an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of, such that the injury is fairly traceable to the challenged action of the defendant: and (3) it must be likely, not merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992). Texas, as the party invoking 9a federal jurisdiction, bears the burden of establishing that the standing requirements are met. See id. at 561, 1128S. Ct. at 2136. Texas alleges two ways in which the Secretarial Procedures have caused it to suffer an injury in fact, contending first that the existence of the Secretarial Procedures has reduced the state’s bargaining power relative to that of the Kickapoo,! and second that the Secretarial Procedures subject Texas to a process for approval of Class III gaming that omits IGRA’s procedural safeguards and thus exceeds the Secretary’s regulatory authority. The latter argument, in other words, is that Texas has suffered the injury of being compelled to participate in an invalid administrative process, and we agree that standing exists on this basis. At the outset of IGRA’s enforcement process, the statute provides for tribe-initiated court review of a state’s good faith. Once a tribe makes a prima facie showing, the state has the opportunity to prove its good faith to the court and forestall the remainder of the enforcement process, which includes court-ordered mediation and possible secretarial approval of gaming procedures. Texas interprets this as a_ statutory promise that states will be spared mediation and ' While the Supreme Court has held that the denial of a “statutory bargaining chip” can “inflict{] a sufficient likelihood of economic injury to establish standing,” Clinton v. City of New York, 524 U.S. 417, 432, 118 S. Ct. 2091, 2101 (1998), it is unclear whether a_ reduction § in_ bargaining’ power unaccompanied by economic injury or other concrete injury can constitute an injury in fact. We do not reach this issue because Texas’s other alleged injury in fact is sufficient to support standing. 10a secretarial action unless a court has determined that the state negotiated in bad faith. Contrary to Appellees’ suggestion that Texas faces nothing more than the possibility that the Secretary might someday approve of gaming procedures for Kickapoo land, Texas is presently being subjected to an administrative process involving mediation and _ secretarial approval of gaming. procedures even though no court has found that Texas negotiated in bad faith. Because Texas challenges the Secretary's authority to undertake this _ process, Texas has alleged a sufficient injury for standing purposes. Cf. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S. Ct. 3325, 3332 (1985) (holding that a challenge to a statutory system of arbitration was ripe because the plaintiffs’ “injury [was] not a function of whether the [arbitration] tribunal awards reasonable compensation but of the tribunal’s authority to adjudicate the dispute”); Middle S. Energy Inc. v. Ark. Pub. Serv. Comm’n, 772 F.2d 404, 410 (8th Cir. 1985) (challenge to a state agency’s ongoing proceedings was ripe because the plaintiff “challengeld] not the state’s ultimate substantive decision but its authority to even conduct the contemplated proceeding”). The alleged injury is not hypothetical because the Secretarial Procedures have already been applied to Texas: The Kickapoo Tribe submitted a Class III gaming application to the Department of the Interior, the Secretary notified Texas and the tribe that the application met the relevant eligibility requirements, and the Secretary invited Texas to comment on the proposal and submit lla an alternative proposal.? Texas’s only alternative to participating in this allegedly invalid process is to forfeit its sole opportunity to comment upon Kickapoo gaming regulations, a forced choice that is _ itself sufficient to support standing. See Union Carbide, 473 U.S. at 582, 105 S. Ct. at 3333 (recognizing “the injury of being forced to choose between relinquishing [the benefit of an unlawful adjudicatory- process] . . . or engaging in an unconstitutional adjudication”). As the Supreme Court observed in Lujan, [wlhen the suit is one challenging the legality of government action or inactio.. ... [and] the plaintiff is himself-an object 2 In accordance with the Secretaria] Procedures, the Department of the Interior informed the Kickapoo that their proposal was completed on December 11, 2003. See 25 C.F.R. § 291.6(b). On May 24, 2007, the Secretary issued a preliminary “scope-of- gaming decision” in response to the tribe’s proposal. According to the Secretary, [t]he Tribe should be authorized to engage in the following gaming activities under Class III procedures pursuant to 25 USC. § 2710(d)(7)(B)(vil(D, subject to the requirements discussed in [the scope-of-gaming decision]: (1) traditional casino-style games; (2) any lottery game including keno, numbers and lotto; and (3) off-track pari-mutuel betting and pari-mutuel betting through simulcasting on any gaming activity occurring off Tribal lands. The Tribe is not authorized to operate gaming machines. This recent, preliminary scope-of gaming decision iulustrates the concrete impact of the choice that the Secretaria] Procedures had forced Texas to make, as Texas’s decision to forgo this allegedly invalid process has left it unable to influence important decisions such as the type of gaming activities that the Secretary will allow on Kickapoo land. 12a of the action (or forgone action) at issue . . . , there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. 504 U.S. at 561-62, 112 S. Ct. at 2137. We are satisfied that Texas has alleged an injury in this case. The causation and redressability requirements for standing are satisfied as well. The injury that Texas claims is directly traceable to the Secretary’s applying the Secretarial Procedures to Texas, and a judicial invalidation of the Secretarial Procedures would give Texas direct relief from being effectively forced to participate in this process. Although the United States argues that Texas brought the injury on itself by invoking a sovereign immunity defense, it provides no support for the proposition that an injury cannot be fairly traceable to a defendant if the plaintiffs acts motivated the defendant to undertake its injurious acts. The State did not cause the Secretary of the Interior to promulgate the Secretarial Procedures, nor did it cause the Secretary to apply the process to Texas. The State's sovereign immunity defense is a prerequisite to secretarial action only because the Secretarial Procedures so provide. Accordingly, Texas has standing to challenge the validity of the Secretarial Procedures. 2. Ripeness [The] basic rationale lof the ripeness doctrine] is to prevent the courts, 13a through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980 (1977). To determine if a case is ripe for adjudication, a court must evaluate (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration. See id. at 149. The fitness and hardship prongs must be balanced, Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291, 296 (5th Cir. 1998), and “[a]l case is generally ripe if any remaining questions are purely legal ones.” New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 833 F.2d 583, 587 (5th Cir. 1987). Yet “even where an issue presents purely legal questions, the plaintiff must show some hardship in order to establish ripeness.”? Cent. & Sw. Servs. v. EPA, 220 F.3d 683, 590 (5th Cir. 2000). A challenge to administrative regulations is fit 3 Texas relies on a case from another circuit for the proposition that hardship is an issue only if a case is not fit for review. See Fla. Power & Light v. EPA, 145 F.3d 1414, 1421 (D.C. Cir. 1998) (“When a challenged decision is not ‘fit’ for review, the petitioner must show ‘hardship’ in order to overcome a claim of lack of ripeness.”). We need not explore this contention here l4a for review if (1) the questions presented are “purely legal onels],” (2) the challenged regulations constitute “final agency action,” and (3) further factual development would not “significantly advance [the court’s] ability to deal with the legal issues presented.” Nat'l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 812, 123 S. Ct. 2026, 2032 (2003) (internal quotation marks and citations omitted); Abbott Labs., 387 U.S. at 149-54, 87 S. Ct. 1515-18. An additional consideration is “whether resolution of the issues will foster effective administration of the statute.” Merchs. Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 920 (5th Cir. 1993); Abbott Labs., 387 U.S. at 154, 87S. Ct. at 1518. Appellees do not dispute that the issues involved in this case are purely legal], but their arguments with regard to the remaining fitness principles are all based on the mistaken belief that Texas’s alleged injury is the speculative harm that could result if the Secretary were ultimately to approve gaming procedures for Kickapoo land. As discussed in the standing inguiry, this is incorrect, as Texas claims present injury from submission to an invalid agency process, regardless whether the Secretary ultimately allows gaming on Kickapoo land. With this distinction in mind, Texas’s claims are fit for adjudication. The challenged Secretarial Procedures are a “final agency action,” as they are final rules that were promulgated through a formal, notice-and-comment rulemaking process _ after announcement in the Federa/ Register. See Abbott Labs., 387 U.S. at 150-51, 87 S. Ct. at 1516-17. Additional fact-finding would not aid our inquiry into 15a the purely legal question of their validity. And resolution of this issue now will give both the Secretary and Congress significant guidance into how IGRA’s provisions may be administered in the particular situation addressed in this case. Appellees submit no relevant arguments as to why this issue is not presently fit for judicial resolution. We also agree with Texas that it would suffer hardship if we were to withhold consideration of its claims. The Supreme Court has found hardship to inhere in legal harms, such as the harmful creation of legal rights or obligations; practical harms on the interests advanced by the party seeking relief; and the harm of being “forcefd] . . . to modify [one’s] behavior in order to avoid future adverse consequences.” Oh. Forestry Ass’n v. Sierra Club, 523 U.S 726, 734, 118 S. Ct. 1671 (1998). Texas faces this third type of harm. If Texas cannot challenge the Procedures in this lawsuit, the State is forced to choose one of two undesirable options: participate in an allegedly invalid process that eliminates a procedural safeguard promised by Congress, or eschew the process with the hope of invalidating it in the future, which risks the approval of gaming procedures in which the state had no input. See Abbott Labs., 387 U.S. at 152, 87 S. Ct. at 1517 (finding hardship where administrative regulations forced the plaintiffs either to comply with a challenged requirement and incur significant costs or refuse to comply and risk prosecution); cf. Union Carbide, 473 U.S. at 581, 105 S. Ct. at 3333 (finding hardship where the plaintiffs “sufferled] the continuing uncertainty and expense of depending for compensation on a _ process whose authority is undermined because its constitutionality is in question”). We therefore agree with Texas that its challenge to the Secretarial Regulations is ripe for adjudication. B. Merits On the merits, to which we now turn, Texas contends that the Procedures violate the constitutional separation of powers and nondelegation doctrines and are contrary to and unauthorized by IGRA or any other federal statute. To avoid resolution of any constitutional issues, it is sufficient to consider whether the Procedures are authorized by IGRA or the general Indian trust statutes under the Chevron test. 1. Statutory Background To put this dispute in clearer perspective, one must recall that although = states have no constitutional authority over Indian _ reservations, Congress had consistently authorized states to regulate or prohibit certain activities on the reservations. The Supreme Court significantly altered the assumed state-tribal relationship when, in the 1987 Cabazon Band decision, it expansively interpreted a federal statute to prevent states from prohibiting certain tribal gambling activities. Congress responded to Cabazon Band by finishing work on IGRA, a gambling-enabling statute for Indian reservations that had been pending in the legislative process for several years. It is unnecessary to repeat our previous summary of the statute’s complex provisions. Suffice it to say that among those 17a provisions is a “carefully crafted and intricate remedial scheme” whereby, if a tribe and state do not voluntarily enter a compact for Class II] gaming, the principal alternative is for the tribe to sue the state in federal court and secure a determination that the state had not negotiated in good faith.5 25 U.S.C. § 2710(dX7)(A)G). What constitutes good-faith negotiating by the state is left unexplained. An easy, minimal inference is that a state’s insistence upon its general policy against legalized Class III gambling would constitute “good faith,” but that determination, along with numerous other issues such as the necessary “fit” between a state’s policy and the scope of Class III gaming sought by a tribe, is left to a federal court — a clearly neutral forum. Under IGRA, a federal court finding that the state negotiated in good faith ends the bargaining process. On a finding of lack of good faith, however, the court may order negotiation, § 2710(d)(7)(B)Gii), then mediation. § 2710(d)(7)(B)Gv). The court appoints a mediator. If a state refuses to consent to the mediator’s proposed compact (which must blend the “last best offers” of each party), the Secretary is then authorized to prescribe procedures that will bind the _ state. Moreover, the Secretary must adopt procedures “consistent with the [mediator’s] proposed compact . . . .” § 2710(d)(7)(B)(vii)(I). This statutory balance on its face cabins the Secretary’s authority while implanting neutral factfinders on the decisive questions of good faith and the final imposition of a compact on an unwilling or uncooperative state. 4 Seminole Tribe, 517 U.S. at 73-74, 116S. Ct. at 1132. 5 Even after Seminole Tribe, the federal government may sue a state on behalf of a tribe to pursue [IGRA’s remedial process without jurisdictional impediment. 18a Absent the Seminole Tribe decision, this remedial plan is self-contained and fully sufficient. No one contends that the Secretary could have promulgated his alternative Procedures under IGRA before Seminole Tribe was decided. Nonetheless, the Appellees insist that IGRA implicitly conferred on the Secretary the power to substitute the Secretarial Procedures for the judicial remedy foreclosed by Seminole Tribe. This court must therefore move into the realm of the Chevron doctrine to determine whether the Secretarial Procedures faithfully interpret IGRA or, as the Appellees also assert, the general Indian trust statutes. See Class HI Gaming Procedures, 64 Fed. Reg. 17,535-02, 17,536 (Apr. 12, 1999) (Secretary asserts authority to prescribe the Procedures based on the statutory delegation of powers contained in 25 U.S.C. § 2710(d)(7)(B)(vii) of IGRA and 25 U.S.C. §§ 2 and 9). 2. Chevron Step-One Analysis The authority of administrative agencies is constrained by the language of the statute they administer. See Massachusetts v. EPA, _ U.S._, 127 S. Ct. 1438, 1462 (2007). Under the Chevron doctrine, courts assess the validity of challenged administrative regulations by determining whether (1) a statute is ambiguous or silent concerning the scope of secretarial authority and (2) the regulations reasonably flow from the statute when viewed in context of the overall legislative framework and the policies that animated Congress’s design. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842- 43, 1048S. Ct. 2778, 2781-82 (1984). a. Under Chevron step one, the inquiry is “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S. Ct. at 2781. Judicial deference is due only “if the agency interpretation is not in conflict with the plain language of the statute.” Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 417, 112 S. Ct. 1394, 1401 (1992) (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 292, 108 S. Ct. 1811, 1818 (1988)). Step one includes challenges to an agency’s interpretation of a statute, as well as whether the statute confers agency jurisdiction over an Issue. See generally FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S. Ct. 1291 (2000). “Regardiess of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority ‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.” Id. at 125, 120 S. Ct. at 1297 (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517, 108 S. Ct. 805, 817 (1988)).6 As was shown above in our discussion of the statute, the plain language of IGRA permits limited secretarial intervention only as a last resort, and only after the statute’s judicial remedial procedures have been exhausted. See 25 U.S.C. § 2710(d)(7)(B)G)-(vi). Congress did not explicitly authorize the Secretarial ® Additionally, courts “must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” Chevron, 467 U.S. at 133, 120 S. Ct. at 1301. 20a Procedures. Under Chevron step one, when, as here, “the statute is clear and unambiguous, that is the end of the matter; for [this] court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” K Mart, 486 U.S. at 291, 108 S. Ct. at 1817 (quoting Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S. Ct. 681, 685 (1986)); Chevron, 467 U.S. at 842-48, 104 S. Ct. at 2781-82.7 b. Chevron deference “comes into play, of course, only as a consequence of statutory ambiguity, and then only if the reviewing court finds an implicit delegation of authority to the agency.” Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 645 (D.C. Cir. 1998) (citing Chevron, 467 U.S. at 842-44, 104 S. Ct. at 2781- 83): Thus, even if there were an ambiguity concerning whether IGRA permits the Secretarial Procedures without exhaustion of its _ judicially-controlled remedy, an equally salient fact is that “[mlere ambiguity in ae_e statute is not evidence of congressional delegation of authority.” Michigan v. EPA, 268 F.3d 1075, 1082 (D.C. Cir. 2001)(citing 7 It is noteworthy that the “Indian canon” of statutory construction has no bearing on this case because IGRA unambiguously defines the scope of secretarial authority and the conditions under which such authority may be lawfully exercised. See Negonsott v. Samuels, 507 U.S. 99, 110, 113 S. Ct. 1119, 1125-26 (1993) (courts do not “resort to [the Indian] canon of statutory construction” when a statute is unambiguous (citation omitted)); Cabazon Band of Mission Indians v. Nat'l Indian Gaming Comm’n, 14 F.3d 633, 637 (D.C. Cir. 1994) (‘When the statutory language is clear, as it is here, the [Indian] canon may not be employed.”). 2ila cases); Montana v. Clark, 749 F.2d 740, 745 (D.C. Cir. 1984) (“[D]eference to an agency’s interpretation constitutes a judicial determination that Congress has delegated the norm-elaboration function to the agency and that the interpretation falls within the scope of that delegation.” (emphasis in original) (citation omitted)). The Appellees’ argument attempts to obviate Chevron’s delegation requirement by contending that, despite IGRA’s’ meticulous description of the protracted remedial prelude to the Secretary’s involvement in approving Class III gaming without a state’s consent, this court can nonetheless discover a silent, or “implicit,” delegation of secretarial authority. That is, Appellees contend that even though Congress specifically addressed the circumstances under which secretarial authority can be exercised — and even though those circumstances are absent here — the Secretary’s actions are justifiable because IGRA does not explicitly address the Eleventh Amendment issue that arose in the wake of Seminole Tribe. Courts encountering this kind of “whatever-it- takes” approach to Chevron analysis in the past have rejected it. See, e.g., Platte River Whooping Crane Critical Habitat Maint. Trust v. FERC, 962 F.2d 27, 33 (D.C. Cir. 1992) (appeals to a statute’s broad purposes do not allow the discovery of implicit delegations of authority when Congress has explicitly delineated the boundaries of delegated authority). When Congress has directly addressed the extent of authority delegated to an administrative agency, neither the agency nor the courts are free to assume that Congress intended the Secretary to act in situations left unspoken. See Nat’l R.R. Passenger Corp. v. Nat'l 22a Ass'n of R.R. Passengers, 414 U.S. 453, 458, 94S. Ct. 690, 693 (1974) (“When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” (quoting Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S. Ct. 129, 132 (1929))).8 Accordingly, administrative agencies and the courts are “bound, not only by the ultimate purposes Congress has selected but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.” MCI Telecomm. Corp. v. AT&T Corp., 512 U.S. 218, 231 n.4, 114 S. Ct. 2223, 2232 n.4 (1994) (emphasis added). Thus, at the heart of the Appellees’ delegation argument is the assumption that since Congress did not explicitly withhold secretarial rulemaking authority in the event that a tribe is unable to obtain a judicial determination of the state’s bad faith, the ensuing congressional “silence” creates an implicit delegation under Chevron to promulgate Class III gaming regulations. That is an inaccurate interpretation of the nature of the delegation inquiry under Chevron’s first step. “Agency authority may not be lightly presumed.” Michigan, 268 F.3d at 1082. “Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with 8 See also Pub. Serv. Comm. of State of N.Y. v. FERC, 866 F.2d 487, 491-92 (D.C. Cir. 1989) (executive agencies “cannot enlarge the choice of permissible procedures beyond those that may fairly be implied from the substantive sections and the functions there defined”). 23a Chevron and quite likely with the Constitution as well.” Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995); Michigan, 268 F.3d at 1082.9 It stands to reason that when Congress has made an explicit delegation of authority to an agency, Congress did not intend to delegate additional authority sub _silentio. See Backcountry Against Dumps v. EPA, 100 F.3d 147, 151 (D.C. Cir. 1996) (finding that explicit congressional delegation of authority precludes an implicit delegation more expansive than Congress’s express terms). Courts recognize an implicit delegation of rulemaking authority only when Congress has not spoken directly to the extent of such authority, or has “intentionally left [competing policy interests] to be resolved by the agency charged with administration of the statute.” Chevron 467 U.S. at 865-66, 104 S. Ct. at 2793. In IGRA, Congress plainly left little remedial authority for the Secretary to exercise. The judicially- managed scheme of good-faith litigation, followed by negotiation, then mediation, allows the Secretary to step in only at the end of the process, and then only to adopt procedures based upon the mediator’s proposed compact. The Secretary may not decide the state’s 9 Nor can congressional! silence on an issue be used as a panacea justifying rulemaking authority untethered from any trace of congressional intent. “To suggest, as the [Secretary] effectively does, that Chevron step two is implicated any time a statute does not expressly negate the existence of a claimed administrative power .. . is both flatly unfaithful to the principles of administrative law and refuted by precedent.” Am. Bar Ass'n v. FTC, 430 F.3d 457, 468 (D.C. Cir. 2005) (quoting Ry. Labor Executives’ Ass'n v. Nat’ Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (emphasis in criginal)). 24a good faith; may not require or name a mediator; and may not pull out of thin air the compact provisions that he is empowered to enforce. To infer from this limited authority that the Secretary was implicitly delegated the ability to promulgate a _ wholesale substitute for the judicial process amounts to logical alchemy. c. Citing Seminole Tribe, Appellees further contend that a judicial decision can, ex post facto, create a Chevron-type “gap” that introduces ambiguity into the operation of a statutory scheme and thereby authorizes an administrative agency to step in and remedy the ambiguity. This claim ignores Chevron’s well-established requirement that any delegation- engendering gap contained in a statute, whether implicit or explicit, must have been “left open by Congress,” not created after the fact by a court. Chevron, 467 U.S. at 866, 104 S. Ct. at 2793 (emphasis added).1° 10 Moreover, no other circuit court to have considered the propriety of the Secretarial Procedures in light of IGRA has discovered the statutory gap purportedly created by Seminole Tribe. The Eleventh Circuit has suggested without any analysis that if a state asserted Eleventh Amendment immunity against a tribe’s lawsuit, the judicial good-faith determination was severable and unnecessary, and the Secretary could simply enforce against the state regulations governing Class III gaming. See Seminole Tribe of Fla. v. Florida, 11 F.3d 1016, 1029 (11th Cir. 1994), aff'd, 517 U.S. 44, 116 S. Ct. 1114 (1996). A close reading of the Eleventh Circuit’s decision, however, demonstrates that it meant to allow the Secretary to proceed under IGRA as if a judicial finding of lack of good faith had been made and a court-appointea mediator failed to bring the parties to terms. See id. (citing § 2710(d)(7)(B)vii) as the basis for the Secretarial Procedures). Nowhere does the Eleventh Circuit claim that a state’s exercise of 25a Although later enacted statutory provisions may be relevant to determine congressional intent for purposes of Chevron ambiguity, see Brown & Williamson, 529 U.S. at 143-44, 120 S. Ct. at 1306-07, there is no support for the proposition that later court decisions affect or effect ambiguity. Chevron’s delegation inquiry gauges congressional intent that 1s independent from subsequent administrative or judicial constructions of a statute. See Natl Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982, 125 S. Ct. 2688, 2700 (2005)“[W]hether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur.”); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S. Ct. 468, 471 (1988)(“‘It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.”). Accordingly, even though court interpretation of IGRA produced the unexpected result that a state may “veto” Class III gaming by exercising its Eleventh Amendment sovereign immunity, that outcome has no bearing on the scope of the administrative authority originally delegated by Congress to the Secretary. When it so desires, Congress has the power to Eleventh Amendment sovereign immunity creates a statutory gap. Likewise, considering IGRA in the wake of the Supreme Court’s Seminole Tribe decision, the Ninth Circuit reaffirmed the centrality of the statutory balancing of interests in IGRA’s remedial scheme, yet did not mention the apparent gap Appellees claim was created by the Supreme Court. See United States v. The Spokane Tribe of Indians, 139 F.3d 1297, 1299- 1300 (9th Cir. 1998). 26a confer expansive interpretive authority on agencies to accommodate changing or unpredictable circumstances. See, e.g., Massachusetts, _ U.S. at_, 127 S. Ct. at 1462 (“The broad language of [Clean Air Act] § 202(a)(1) reflects an intentional effort to confer flexibility necessary to forestall . . . obsolescence.”). Likewise, Congress knows well how to cabin agency authority through specific definitions that pretermit flexible interpretation. See, e.g., Ethyl Corp., 51 F.3d at 1058 (Congress unambiguously expressed that waiver decisions made under Clean Air Act § 211(f)(4) are based exclusively on one criterion). However, the fact that later-arising circumstances cause a statute not to function as Congress intended does not expand the congressionally-mandated, narrow scope of the agencys power. For example, in evaluating the validity of the Federal Reserve’s interpretation of the Bank Holding Company Act in Dimension Financial, the Supreme Court observed that: Congress defined with specificity certain transactions that constitute banking subject to regulation. The statute may be imperfect, but the [Federal Reserve] Board has no power to correct flaws that it perceives in the statute it is empowered to administer. Its rulemaking power is limited to adopting regulations to carry into effect the will of Congress as expressed in the statute. If the Bank Holding Company Act falls short of providing safeguards desirable’ or necessary to protect the public interest, that is a problem for Congress, not that Board or the courts, to address. 27a Dimension Fin. at 374-75, 106 S. Ct. at 689.1! In strikingly similar terms, the Seminole Tribe Court rejected Florida’s invitation to prescribe a remedy unsupported by the language and legislative history of IGRA. 517 U.S. at 76, 116 S. Ct. at 1133 (“Nor are we free to rewrite [IGRA’s] statutory scheme in order to approximate what we think Congress might have wanted had it known that § 2710(d)(7) was beyond its authority. If that effort is to be made, it should be made by Congress, not by the federal courts.”).2 11 Under the Chevron analysis, the question is whether Congress could be said to have delegated explicit or implicit authority to the agency to deal with an issue. We focus here on implicit delegation since IGRA indisputably does not address the post-Seminole Tribe state of affairs. The Dissent suggests that Congress effects an implicit delegation of legislative authority ‘each time it decides an issue and withholds power from the agency in so doing. Following this ungainly line of reasoning to its conclusion, the Dissent would hold that any time a court overturns a statute speaking expressly to an administrative issue, the agency has been delegated de facto implicit authority to revise the procedure as it sees fit. That result stands Congress’s exertion of power on it head, transforms a denial of agency authority into an implicit delegation thereto, and radically undercuts the Supreme Court's attempt in Chevron to distinguish between congressional power and agency authority in a principled way. In the Indian gaming context, Congress reacted to the Cabazon Band decision by adopting a highly complex scheme to balance the tribal-state interests inherent in Indian gaming. Congress could have simply authorized the Secretary to promulgate compacts however he chose to do so, or, it could have refrained from acting entirely. It took neither route. Instead, it explicitly withheld power from the Secretary to accomplish IGRA’s balancing scheme. As Dimension Financial states, no court decision can restore power that was withheld by Congress. 12 This comment was made in the context of the Supreme Court's rejection of a judicially crafted Ex Parte Young remedy — not the Secretarial Procedures at issue in this appeal. But 28a Nor does the fact that judicial interpretation of a statute leads to consequences unforeseen by Congress make a statute “ambiguous” within the meaning of Chevron. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 567, 125 S. Ct. 2611, 2625 (2005)(rejecting legislative history that might have demonstrated Congress “did not intend” to overrule a case because the statutory language was unambiguous that Congress did in fact overrule the case); In re Abbott Labs., 51 F.3d 524, 528-29 (5t Cir. 1995) (applying the plain meaning of a statute even though that construction “may have been a clerical error’); see also Thompson v. Goetzmann, 337 F.3d 489 (5th Cir. 2003). In Thompson,the Department of Health & Human Services sought deference for its interpretation of a particular term, as construed in the applicable regulations and in its lawsuit for Medicare reimbursement. The court stated: [Wle reiterate that the courts are not in the business of amending legislation. If the Dlain language of the MSP statute produces the legislatively unintended result claimed by the government, the Florida’s proposed Ex Parte Young remedy was rejected by the Supreme Court because, like the Secretarial Procedures, it was contrary to the “carefully crafted and intricate remedial scheme set forth in § 2710(d)(7)” by Congress. Seminole Tribe, 517 U.S. at 73-74, 116 S. Ct. at 1132. The Supreme Court’s reason for rejecting the Ex Parte Young remedy thus applies with equal force to the Secretarial Procedures here. Nevertheless, we acknowledge that the Court explicitly refused to consider the Eleventh Circuit's “suk stitute remedy” of Secretarial Procedures. Id. at 76, 116 S. Ct. at 1133: see also 517 U.S. 1133, 116 S. Ct. 1416 (1996) (mem.). 29a government's complaint should _ be addressed to Congress, not to the courts, for such revision as Congress may deem warranted, if any. Id. at 493. Court decisions cannot serve to dilate or contract the scope of authority delegated by Congress to an administrative agency because delegation is a matter of legislative intent, not judicial interpretation. Thus, if Congress did not originally intend to confer rulemaking authority, the Secretary cannot synthesize that authority from a judicial opinion.}3 13 The United States’ analogy to the Coal Act cases fails to lend support to its endorsement of the unauthorized actions Interior has taken in this case. The Fourth Circuit’s decision in The Pittston Co. v. United States, 368 F.3d 385 (4th Cir. 2004), stands only for the proposition that an administrative agency’s interpretation of a statute in light of a subsequent judicial decision may be permissible if that interpretation is (1) faithful to the authority Congress originally delegated to the agency and (2) does not contradict the plain langmage of the statute. That uncontroversial stance shares our view that the scope of authority delegated by Congress to an administrative agency is not altered by subsequent developments. See, e.g., Brand X, 545 U.S. at 983, 125 S. Ct. at 2700. As the Pittston court recognized, the beneficiary reassignments undertaken by the Social Security Commissioner in the wake of Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S. Ct. 2131 (1998), did not “violate[] or disturb{] the structure of the Coal Act .. . . [The Commissioner] followed the Coal Act’s assignment structure to the letter. . . . [Tlhe fact and method of applying the Coal Act .. . have not changed.” 368 F.3d at 404-05; see also A.T. Massey Coal Co. v. Holland, 472 F.3d 148, 167 (4th Cir. 2006) (“[D]elegation must appear from the statute itself, not from the agency’s actions”); Sidney Coal Co. v. Soc. Sec. Admin., 427 F.3d 336, 347 n.15 (6th Cir. 2005). The same cannot be said of the Secretary’s actions. In stark contrast to the Commissioner's reassignments in Pittston, here the Secretary did not promulgate Class III gaming regulations that correspond to 30a 3. Reasonabieness of Secretarial Procedures Under Chevron’s Step Two Even were we to conclude under the Chevron step-one analysis that Seminole Tribe effected a sub rosa delegation of administrative authority allowing the Secretary to ignore Congress’s explicit limitation of his authority in § 2710(d)(7)(B)(vii), the Secretarial Procedures still cannot pass muster under Chevron step two because they do not reasonably effectuate Congress’s intent for IGRA. “If [the agency’s] choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute,” a court will not disturb that choice “unless it appears from the statute or legislative history that’ the accommodation is not one that Congress would have sanctioned.” Chevron, 467 U.S. at 845, 104 S. Ct. at 2783 (quoting United States v. Shimer, 367 U.S. 374, 382-83, 81 S. Ct. 1554, 1560-61 (1961)); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S. Ct. 455, 462 (1985) (Chevron step two entails evaluation of agency action “in light of the language, policies and legislative history of the Act.”). the structure of IGRA. Instead, the Secretary has erected an ersatz remedial scheme that exceeds the authority Congress delegated to the Secretary under IGRA’s remedial provisions. Pittston does not support the creation of a novel remedial scheme never envisioned by Congress and _ specifically contradictory of Congress’s expressed intent concerning the scope of secretarial rulemaking. The application of a preexisting remedial scheme to a narrower pool of plan participants that was approved in Pittston is not remotely analogous to the wholesale invention of the remedial scheme that we are confronted with in the Secretarial Procedures. Pittston lends no support for the unprecedented “yapfilling” that the Secretary has undertaken in this case. 3la In any event, “[plolicy considerations cannot override our interpretation of the text and structure of the Act.” Cent. Bank of Denver, N.A., v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188, 114 S. Ct. 1439, 1453-54 (1994). “The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron, 467 USS. at 843 n.9, 104 S. Ct. at 2782 n.9. Thus, as with the delegation inquiry, Chevron step two compels a judicial evaluation of congressional intent. Because the Secretary’s actions clearly violate IGRA’s intent, they are unreasonable. In IGRA, Congress struck a “finely-tuned balance between the interests of the states and the tribes” to remedy the Cabazon Band prohibition on _ state regulation of Indian gaming. United States v. Spokane Tribe of Indians, 139 F.3d 1297, 1301 (9th Cir. 1998); S. REP. No. 100-446, at 2 (1988), as reprinted in 1988 U.S.C.C.A.N. 3071, 3071-72 (noting Cabazon Band’s holding that tribes “have a right to conduct gaming activities on Indian lands unhindered by State regulation”). Congress attempted to “provide a means by which tribal and State governments can realize their unique and individual governmental objectives” by giving tribes the opportunity to negotiate a Class III gaming compact, and by giving states the protection of an objective judicial intermediary in case negotiations prove unsuccessful. S. REP. NO. 100-446, at 13 (1988), as reprinted in 1988 U.S.C.C.A.N. 3071, 3083. The lynchpin of IGRA’s balancing of interests is the tnbal-state compact. Melding the provisions for 32a negotiation of a compact with the remedial structure ultimately included in IGRA took over five years to accomplish legislatively.14 § Moreover, IGRA’s legislative history amply demonstrates that Congress viewed the compact as an indispensable prerequisite to Class III gaming. See id. at 6, as reprinted in 1988 U.S.C.C.A.N. 3071, 3076 ({IGRA] does not contemplate and does not provide for the conduct of Class III gaming activities on Indian lands in the absence of a tribal-State compact”); id. (“tribes will be unable to enter into [Class III] gaming unless a compact is in place”). Congress considered — and rejected — other remedial structures that did not guarantee states such protections. The legislature eventually settled on IGRA’s judicial remedy and the tribal-state compact requirement as the “best mechanism to assure that the interests of both sovereign entities are met with respect to the regulation of complex gaming enterprises.” Id. at 13, as reprinted in 1988 U.S.C.C.A.N. 3071, 3083. Congressional intent on this score is pellucid. In order to conduct Class III gaming, tribes must either: (1) negotiate a voluntary compact with the state, see 25 U.S.C. § 2710(d)(3)(A)-(C); (2) obtain the state’s agreement to the mediator-selected compact that follows the judicial good-faith process, see § 2710(d)(7)(B)Gii)-(vi); or (3) obtain secretarial Class III procedures based on the mediator-selected compact, see § 2710(d)(7)(B)(vii)(1). Absent a tribal- '4 The legislation to enable Indian gaming was first introduced as H.R. 4566, 97th Cong. (1983), by Representative Morris Udall in 1983. S. 555, 100th Cong. (1988), introduced by Senator Daniel Inouye, was enacted into law as IGRA in 1988. 33a state compact, the statute forbids tribes to offer Class IIJ gaming. The tribal-state compact is in fact so central to the IGRA process that it is the only means by which the tribe can avoid incurring liability under other federal statutes that regulate Indian gaming. Two statutes, both of which antedate IGRA, are relevant to this issue. First, the Johnson Act, 15 U.S.C. § 1175 et seq., prohibits the possession or use of “any gambling device . . . within Indian country.” Id. § 1175(a). Second, 18 U.S.C. § 1166 punishes gambling in Indian country in derogation of state law. Congress coordinated IGRA with these criminal provisions by providing that the tribal-state compact is the exclusive means of avoiding gaming-related violations.!5 Apart from the limited circumstances in which IGRA allows Class III gaming to be imposed by the Secretary following exhaustion of the judicial good- faith/mediation process, Class III gaming remains illegal in Indian country without a tribal-state compact. The role the Secretary plays and the power he wields under the Procedures bear no resemblance to the secretarial power expressly delegated by Congress under IGRA. First, IGRA interposes, before any 15 See IGRA § 2710(d)(6) Wohnson Act does not apply to gaming conducted under a tribal-state compact); see also United States v. Cook, 922 F.2d 1026, 1034 (2d Cir. 1991) Wohnson Act liability waived only by a Class III gaming compact between a state and tribe). Likewise, 18 U.S.C. § 1166(c)(2), referencing IGRA, excepts “class II] gaming conducted under a Tribal-State compact.” See, e.g., Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024, 1031 (2d Cir. 1990) (tribal-state compact required for waiver of 18 U.S ©. § 1166 liability). 34a secretarial involvement, the requirement that an impartial factfinder determine whether the state has negotiated in good faith. See § 2710(d)(7)(B)Gii). Under the Secretarial Procedures, however, it matters not that a state undertook good-faith negotiations with the tribe: The Secretary may prescribe Class III gaming irrespective of a state’s good faith. See 25 C.F.R. § 291.7-.8. This result contravenes the plain language of IGRA. Second, under IGRA, if mediation is ordered, it is undertaken by a neutral, judicially-appointed mediator who objectively weighs the proposals submitted by the state and _ tribe. See § 27710(d)(7)(B)(iv). Under the Procedures, however, the Secretary selects the mediator. 25 C.F.R. § 291.9. In light of the Secretary’s statutory trust obligation to protect the interests of Indian tribes, this aspect of the Procedures is stacked against the objective interest- balancing Congress intended and creates the strong impression of a biased mediation process. See, e.g., Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Babbitt, 43 F.3d 1491, 1499 (D.C. Cir. 1995) (noting that “the Secretary was not in a position to champion the State’s position in view of his trust obligations to the tribe.” (citing Heckman v. United States, 224 U.S. 413, 444-45, 32 S. Ct. 424, 433-34 (1912))). Common sense dictates that the Secretary cannot play the role of tribal trustee and objective arbiter of both parties’ interests simultaneously. Congress did not intend this incoherent result. Third, whereas under IGRA’s remedial scheme the court-appointed mediator essentially defines the regulations that the Secretary may promulgate, the 35a Procedures enable the Secretary to disregard not only the mediator’s proposal, but also the proposals of the state and tribe.16 IGRA’s remedial process makes clear that Congress did not intend to delegate to the Secretary unbridled power to prescribe Class III regulations. Fourth, the Secretarial Procedures contemplate Class III gaming in the absence of a tribal-state compact — directly in derogation of Congress’s repeated and emphatic insistence. See, e.g., S. REP. No. 100-446, at 6 (1988), as reprinted in 1988 U.S.C.C.A.N. 3071, 3076 (“[IGRA] does not contemplate and does not provide for the conduct of class III gaming activities on Indian lands in the absence of a tribal-State compact.”).17 The only exception to the compact requirement Congress envisioned was the promulgation of procedures after a_ bad-faith determination and in concert with the proposal 16 Compare § 2710(d)(7)(B)(vii) (“the mediator shall notify the Secretary and the Secretary shal! prescribe . . . procedures (I) which are consistent with the proposed compact selected by the mediator under clause (iv)) with 25 C.F.R. § 291.11(c) (“If the Secretary rejects the mediator’s proposal . . . he/she must prescribe appropriate procedures within 60 days under which “ass III gaming may take place that comport with the mediator’s selected proposal as much as possible, the provisions of IGRA, and the relevant provisions of the laws of the State.”). 17 Department of the Internor and Related Agencies Appropriations Act, Pub. L. No. 105-83, 111 Stat. 1543, 1570 (1998) (“SENSE OF THE SENATE CONCERNING INDIAN GAMING. It is the sense of the Senate that the United States Department of Justice should vigorously enforce the provisions of the Indian Gaming Regulatory Act requiring an approved Tribal-State gaming compact prior to the initiation of class III gaming on Indian lands.”) 36a selected by a court-appointed mediator. Yet in spite of this single statutory exception — the product of IGRA’s complex and balanced remedial scheme — Appellees maintain it is equally reasonable to assume that Congress intended a waiver of hability under the Johnson Act and 18 U.S.C. § 1166 even without a judicial determination of bad faith; without the participation of a court-appointed mediator; and without the requirement that the _ regulations ultimately promulgated be “consistent with the proposed compact selected by the (court-appointed) mediator.” § 2710(d)(7)(b)(vil)(D).18 For all these reasons, the Secretary’s Class III Procedures are not a reasonable interpretation of '8 Commentators have noted the problems with the Procedures. See Rebecca S. Lindner-Cornelius, Note, The Secretary of the Interior as Referee: The States, The Indian Nations, and_How Gambling Led to the Illegality of the Secretary of the Interior’s Regulations in 25 C.F.R. § 291, 84 MARQUETTE L. REV. 685, 695 (2001) (arguing that the regulations are unconstitutional and noting that “when a state claims it has negotiated in good faith to no avail, the only recourse it is left with is a biased factfinder who can do what it wants without any state input”); Nicholas S. Goldin, Note, Casting a New Light on Tribal Casino Gaming: Why Congress Should Curtail the Scope of High Stakes Indian Gaming, 84 CORNELL L. REV. 798, 843-44 (1999) (arguing that the Procedures are “troubling” because the Secretary “assumes a massive unilateral power that Congress did not intend to delegate” and because the Procedures “make a travesty of the concept of federalism and in its place substitute a system in which Washington claims it knows best what state laws mean”); Joe Laxague, Note, Indian Gaming and Tmnbal-State Negotiations: Who Should Decide the Issue of Bad Faith?, 25 J. LEGIS. 77, 91 (1999) (arguing that the Procedures “do both parties a disservice and badly skew the balance of interests intended by Congress when it wrote the IGRA”). 37a IGRA, especially when viewed against “their place in the overall statutory scheme.” Brown & Williamson, 529 U.S. at 133, 120 S. Ct. at 1301. The Secretary, of course, is not authorized to promulgate regulations in violation of federal law, see Sohappy v. Hodel, 911 F.2d 1312, 1320 (9th Cir. 1990), yet the Secretarial Procedures stand in direct violation of IGRA, the Johnson Act, and 18 U.S.C. § 1166 insofar as they may authorize Class III gaming without a compact. Because “the Executive Branch is not permitted to administer the Act in a manner that is inconsistent with the administrative structure that Congress enacted into law,” and because doing so constitutes an unreasonable interpretation of Congress's intent, the Secretarial Procedures cannot pass muster under Chevron step two. ETSI Pipeline Project, 484 U.S. at 157, 108 S. Ct. at 817. 4. General Authority Statutes An alternative contention raised by Appellees is that secretanal authority to promulgate the Procedures derives from the general Indian trust statutes when read in_ concert with = § 2710(d)(7)(B)(vii). See 25 U.S.C. §§ 2, 9; 64 Fed. Reg. 17,535-02, 17,536 (Apr. 12, 1999). To be sure, courts may consider “generally conferred authority” in the statutory scheme to determine the propriety of administrative agency action. United States v. Mead Corp., 533 U.S. 218, 229, 121 S. Ct. 2164, 2172 (2001). But sections 2 and 9 do not grant Interior “a general power to make rules governing Indian conduct.” Organized Vill. of Kake v. Egan, 369 U.S. 60, 63, 82 S. Ct. 562, 564 (1962). Instead, the authority Congress there delegated to the Secretary only allows prescription of regulations that implement “specific 38a laws,” id., and that are consistent with other relevant federal legislation. See Morton v. Ruiz, 415 U.S. 199, 232, 94 S. Ct. 1055, 1073 (1974); N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 748 (10th Cir. 1987) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814 (1971)). Thus, in Village of Kake, the Secretary issued fishing regulations ostensibly permitted under the White Act and the Alaska Statehood Act. However, the regulations, which allowed the Kake community to operate four fish traps, violated Alaska’s antifish-trap and conservation law. Because Interior could point to no affirmative statutory grant of authority that allowed the Secretary to issue regulations in derogation of state law, the Supreme Court held that the Secretary had exceeded the authority granted by sections 2 and 9. Id. at 62, 82 S. Ct. at 564. Village of Kake demonstrates that the Secretary lacks carte blanche to issue regulations pursuant to a generalized grant of authority untethered from the confines of preexisting statutorily defined rights. See United States v. Eberhardt, 789 F.2d 1354, 1360 (9th Cir. 1986). For example, in Eberhardt, the Ninth Circuit approved’ secretarial regulations imposing a moratorium on commercial fishing on the Hoopa Valley Reservation. The court held that the Secretary was authorized to issue the regulations pursuant to the preexisting fishing mghts that were granted when Congress authorized creation of the Hoopa Valley Reservation by statute. See People v. McCovey, 685 P.2d 687, 697 (Cal. 1984) (citing Menominee Tribe v. United States, 391 U.S. 404, 405-06, 88 S. Ct. 1705, 1707 (1968)). In similar fashion, the caselaw 39a overwhelmingly confirms that sections 2 and 9 do not empower issuance of regulations without a statutory antecedent. See, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658, 691, 99 S. Ct. 3055, 3077 (1979) (sections 2 and 9 effectuate rights granted by treaty); N. Arapahoe Tribe, 808 F.2d at 749 (general trust statutes “together with the Treaty . . . provide the necessary authority for the Secretary to enact’ these regulations.”); United States v. Michigan, 623 F.2d 448, 450 (6th Cir. 1980) (upholding secretarial regulations governing rights conferred by treaty).!9 IGRA, however, does not guarantee an Indian 19 In addition to the requirement that the regulations be issued in accordance with the rights conferred on the tribe by existing federal legislation, here, IGRA courts have recognized that sections 2 and 9 address the protection and management of “Indian trust resources” — typically natural resources or property. See, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658, 99 S. Ct. 3055 (1979) (fishing rights); Chippewa Indians of Minn. v. United States, 301 U.S. 358, 57 S. Ct. 826 (1937) (land allotment); Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of Navy, 898 F.2d 1410 (9th Cir. 1990) (fisheries preservation); N. Arapahoe Trib» v. Hodel, 808 F.2d 741 (10th Cir. 1987) (hunting and fish.rg rights); see also Morton v. Ruiz, 415 U.S. 199, 94 S. Ct. 1055 (1974) (payment of general assistance benefits authorized under 25 U.S.C. § 13); Seminole Nation v. United States, 316 U.S. 286, 62 S. Ct. 1049 (1942) (money held in trust by the United States). Appellees’ assertion that sections 2 and 9 apply here assumes that anticipated gambling revenues constitute an Indian trust resource within the meaning of those statutes. This assertion is especially unjustified since, under IGRA, after a_ tribal-state compact is in place the Secretary has no role whatsoever in the management or oversight of Class III gaming. See 25 U.S.C. § 2710(d)(5). 40a tribe the nght to conduct Class III gaming and therefore cannot serve as a statutory antecedent justifying the Secretarial Procedures. IGRA grants tribes the right to negotiate the terms of a tribal- state compact, see 25 U.S.C. § 2710(d)(3)(A), and by agreement to “regulate class III gaming on its Indian lands concurrently with the State.” § 2710(d)(5). Tribes, likewise, have the right to bring suit against a state for its failure “to enter into negotiations with the Indian tribe.” See § 2710(d)(7)(A)G). Seminole Tribe, of course, clarified that the tribe’s right is subject to the state’s exercise of an affirmative jurisdictional defense under the Eleventh Amendment. In any case, the Secretary’s acting under sectiwns 2 and 9 cannot sidestep IGRA’s remedial process for two reasons. First, there would have been no reason for IGRA to prescribe any procedures had Congress been willing to or believed it could entrust them entirely to the Secretary’s general powers. Second, the fact that IGRA clearly limited the Secretary's intervention into Class III gaming compacts constitutes the best evidence of congressional intent to limit the Secretary’s role. IV. CONCLUSION The Secretarial Procedures’ violate’ the unambiguous language of IGRA and congressional intent by bypassing the neutral judicial process that centrally protects the state’s role in authorizing tribal Class Ill gaming. Congress, to be sure, could omit states entirely from Class III gaming regulation. See Cabazon Band, 480 U.S. at 207, 107 S. Ct. at 1087. But we need not speculate on legislative alternatives that Congress might adopt in response to Seminole Tribe. Suffice it here to say that the balance Congress 4ia did strike cannot be wholly revised by substitute procedures that contradict Congress’s’ explicit statutory instructions. The Secretarial Procedures are invalid and constitute an unreasonable interpretation of IGRA. When, as here, “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S. Ct. at 2781. Pursuant to the foregoing discussion, we REVERSE the district court's judgment and REMAND for further proceedings consistent with this opinion. REVERSED and REMANDED. 42a KING, Circuit Judge, concurring in part and in the judgment: I concur in Part III.A of the opinion, which deals with justiciability. On the merits, I concur only in the judgment, reversing the district court’s conclusion that the Secretary of the Interior (“Secretary”) had the authority to promulgate the challenged regulations. In my view, the lack of any provision in the Indian Gaming Regulatory Act (““IGRA”) addressing the dismissal of an Indian tribe’s enforcement suit on sovereign immunity grounds is a statutory gap that is akin to the gap recognized in Pittston Co. v. United States, 368 F.3d 385, 403-04 (4th Cir. 2004), and Sidney Coal Co. v. Social Security Administration, 427 F.3d 336, 346 (6th Cir. 2005). Those cases held that the Social Security Commissioner had implicit authority to fill a gap exposed by the Supreme Court’s invalidation of a portion of the Coal Industry Retiree Health Benefit Act of 1992; in this case the Secretary’s general authority to effectuate statutes relating to Indian affairs provides analogous gap- filling power with regard to IGRA. See 25 U.S.C. §§ 2, 9; Morton v. Ruiz, 415 U.S. 199, 231 (1974); Organized Village of Kake v. Egan, 369 U.S. 60, 63 (1962). Howeve [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_IA40386010_0671%3A1. Public record. Not legal advice.