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Cachil Dehe Band of Wintun indians Colusa Indian Community v. Zinke

United States Court of Appeals, Ninth Circuit

May 2, 2018

Citizens for a Better Way; Stand Up for California!; Grass Valley Neighbors; William F. Connelly; James M. Gallagher; Andy Vasquez; Dan Logue; Roberto's Restaurant; Robert Edwards, Plaintiffs-Appellants,
v.
Ryan Zinke, Secretary of the Interior; Kevin K. Washburn, Esquire, Assistant Secretary of the Interior - Indian Affairs; Michael S. Black, Director, United States Bureau of Indian Affairs; Amy Dutschke, Director, Pacific Region, Bureau of Indian Affairs; Estom Yumeka Maidu Tribe of the Enterprise Rancheria, California; Bureau of Indian Affairs; Department of the Interior, Defendants-Appellees. CACHIL DEHE BAND OF WINTUN INDIANS OF THE COLUSA INDIAN COMMUNITY, a federally recognized Indian Tribe, Plaintiff-Appellant,
v.
RYAN K. ZINKE, Secretary of the Interior; KEVIN K. WASHBURN, Esquire, Assistant Secretary of the Interior - Indian Affairs; MICHAEL S. BLACK, Director, United States Bureau of Indian Affairs; AMY DUTSCHKE, Director, Pacific Region, Bureau of Indian Affairs; ESTOM YUMEKA MAIDU TRIBE OF THE ENTERPRISE RANCHERIA, CALIFORNIA; BUREAU OF INDIAN AFFAIRS; DEPARTMENT OF THE INTERIOR, Defendants-Appellees.

         FOR PUBLICATION

          Argued and Submitted February 12, 2018 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding D.C. No. 2:12-cv-03021-TLN-AC

          George Forman (argued), Jay B. Shapiro, and Margaret C. Rosenfeld, Forman & Associates, San Rafael, California, for Plaintiff-Appellant Cachil Dehe Band of Wintun Indians of the Colusa Indian Community.

          Benjamin S. Sharp (argued) and Jennifer A. MacLean, Perkins Coie LLP Washington, D.C.; Brian Daluiso, Perkins Coie LLP, San Diego, California; for Plaintiffs-Appellants Citizens for a Better Way, Stand Up for California!, Grass Valley Neighbors, William F. Connelly, James M. Gallagher, Andy Vasquez, Dan Logue, Roberto's Restaurant, and Robert Edwards.

          Mary Gabrielle Sprague (argued) and John L. Smeltzer, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; Appellate Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; for Federal Defendants-Appellees.

          Matthew G. Adams (argued) and Jessica L. Duggan, Dentons U.S. LLP, San Francisco, California; Michael S. Pfeffer and John A. Maier, Maier Pfeffer Kim Geary & Cohen LLP, Oakland, California; for Defendants-Appellees Estom Yumeka Maidu Tribe of the Enterprise Rancheria, California.

          Frank R. Lawrence and Zehava Zevit, Law Office of Frank Lawrence, Grass Valley, California, for Amicus Curiae Mooretown Rancheria of Maidu Indians of California.

          Before: Michael Daly Hawkins, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

          SUMMARY [*]

         Tribal Affairs

         The panel affirmed the district court's summary judgment in favor of the Estom Yumeka Maidu Tribe of the Enterprise Rancheria in an action seeking to enjoin the U.S. Department of the Interior's Bureau of Indian Affairs ("BIA") from taking a parcel of land into trust for Enterprise so that Enterprise could build a casino and hotel complex.

         Following the BIA's decision to make the parcel acquisition, a nearby Indian Tribe with a casino of its own ("Colusa"), and various citizens' groups and individuals opposed to the construction of the Enterprise Casino, alleged errors in the regulatory process and sued to enjoin the acquisition.

         The panel held that the Department of the Interior had the statutory authority under the Indian Reorganization Act to take land into trust for Enterprise. The panel further held that, pursuant to the Act's implementing regulations in 25 C.F.R. § 151.11(a), the Secretary properly considered Enterprise's "need" for the land. The panel also held that Interior's incorrect legal description of the parcel in the Federal Register was a trivial error that was quickly corrected, and did not render the final Record of Decision arbitrary and capricious.

         The panel rejected plaintiffs' challenges based on the Indian Gaming Regulatory Act. The panel held that the BIA properly consulted with Colusa. The panel rejected Colusa's facial and as-applied challenges to the implementing regulation, 25 C.F.R. § 292.3, which mandated consultation with communities within twenty-five miles of the proposed trust acquisition, and concluded that Colusa was given an opportunity to consult. The panel also held that the Secretary's finding that the proposed casino project would not be "detrimental to the surrounding community, " 25 U.S.C. § 2719(b)(1)(A), was not arbitrary and capricious. The panel held that the district court did not err in striking a declaration, submitted by Colusa as extra-record evidence. In a matter of first impression, the panel found that it was within the expertise of the agency to determine the likelihood required mitigation measures will be followed, and the BIA's determination that Enterprise would fulfill its required mitigation measures was not arbitrary or capricious.

         The panel rejected plaintiffs' challenges based on the National Environmental Policy Act. The panel held that the Final Environmental Impact Statement's "purpose and need" statement was not "artificially limited." The panel also held that Colusa waived any argument that Interior's failure to consider its proposed alternatives represented a NEPA violation. The panel further held that Colusa did not establish that the Final Environmental Impact Statement relied on inadequate or flawed data. The panel also held that the Statement took a "hard look" at the environmental impacts of the proposed action. Finally, the panel held that Colusa did not present any evidence that the BIA failed to engage in adequate independent oversight over the preparation of the Draft Environmental Impact Statement or the Final Environmental Impact Statement, or that the consulting services Analytical Environmental Services may perform was in any way significant.

          OPINION

          BEA, Circuit Judge

         On July 15, 2003, the Estom Yumeka Maidu Tribe of the Enterprise Rancheria ("Enterprise") asked the Bureau of Indian Affairs (the "BIA"), a part of the United States Department of the Interior, to take a parcel of land into trust for them so that Enterprise could build a casino and hotel complex. In November 2012, after almost ten years of studies, expert reports, meetings, and other regulatory processing, the BIA agreed to the acquisition. Immediately following the BIA's decision, several entities, including the Cachil Dehe Band of Wintun Indians of the Colusa Indian Community ("Colusa"), a nearby Indian Tribe with a casino of its own, and various citizens' groups and individuals opposed to the construction of the Enterprise Casino (together, "Citizens"), [1] alleged a host of errors in the lengthy regulatory process and sued to enjoin the trust acquisition. The district court granted summary judgment in favor of Enterprise. For the reasons that follow, we affirm.

          I.

         In 1915, a representative of the United States Indian Service visited Enterprise, California, and completed a census of fifty-one Indians "in and near Enterprise in Butte County, California." That same year, the United States purchased two forty-acre parcels of land in trust for Indians living in Enterprise: (1) Enterprise 1, located approximately ten miles northeast of Oroville, and (2) Enterprise 2, located closer to Oroville (together, the "Enterprise Rancheria"). The United States continues to hold Enterprise 1 in trust; however, in 1965, the State of California purchased Enterprise 2 and flooded it to allow the construction of the Oroville dam. The parties agree that since 1915 Indians have been living on the Enterprise Rancheria, and the Enterprise Rancheria is an Indian Reservation.

         In 1934, Congress enacted the Indian Reorganization Act, 25 U.S.C. § 5108 et seq., (the "IRA"). Section 18 of the IRA states that the Act "shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application." Id. § 5125. In due course, so-called Section 18 elections were held on Indian reservations around the country, including on Enterprise Rancheria on June 16, 1935.[2]

         In 1979, the Department of the Interior began to publish lists of federally recognized tribes in the Federal Register. The "Enterprise Rancheria of Maidu Indians" has appeared on each list from 1979 to the present.

         On August 13, 2002, Enterprise submitted a "fee-to-trust" application to the Secretary of the Interior pursuant to the IRA, 25 U.S.C. § 5108, which authorizes the Secretary to take lands in trust for the benefit of "the Indian tribe or individual Indian for which the land is acquired." The application asked the Secretary to accept into trust forty acres of land owned by Yuba County Entertainment, L.L.C., (the "Yuba Site"), located in Yuba County, California, so Enterprise could develop an off-reservation casino and hotel.

         There are a number of regulatory hurdles which must be vaulted to take land into trust for off-reservation gaming. While the IRA allows for the Secretary to take land into trust for the benefit of Indians, the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. ("IGRA") generally prohibits gaming on such lands taken into trust after October 17, 1988. However, gaming is permitted if the Secretary determines, after consulting with the "Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, " that the gaming would "not be detrimental to the surrounding community, " and if the Governor of the relevant state agrees with the Secretary's determination. 25 U.S.C. § 2719(b)(1)(A). This is referred to as the Secretarial two-part determination.

         In addition to satisfying IGRA, more regulatory hurdles remain. The Department of the Interior and the applicant Tribe must satisfy the National Environmental Policy Act, 42 U.S.C. § 4321 et seq, ("NEPA"). NEPA requires that all federal agencies considering actions "significantly affecting the quality of the human environment" prepare a "detailed statement" describing the "environmental impact of the proposed action, " "any adverse environmental effects which cannot be avoided should the proposal be implemented, " "alternatives to the proposed action, " "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, " and "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." Id. § 4332(C). The "detailed statement" is referred to as an Environmental Impact Statement (an "EIS").

         These various statutory and regulatory requirements created a lengthy administrative process.

         First, on August 13, 2002, Enterprise submitted its "fee-to-trust" application to the Secretary of the Interior. The application requested that Interior take title to the Yuba Site in trust so that the Tribe could build a 207, 760 square foot casino and accompanying hotel. The application included a December 2001 document entitled "Gaming and Hotel Market Assessment: Marysville, California, " prepared by The Innovation Group. The assessment evaluated ten market areas in northern California, analyzed the characteristics of other existing tribal casinos, and estimated revenues and expenses for a casino/hotel for 2004-2008.

         Second, Enterprise retained a consultant, Analytical Environmental Services ("AES"), to submit a draft Environmental Assessment (an "EA").[3] The draft EA was submitted to the BIA on July 15, 2003. The BIA reviewed the draft EA and suggested numerous revisions. In May 2004, the EA was finalized. The BIA made the EA available for public review and comment by publishing a Notice of Availability in a Marysville newspaper and mailing the EA to local, State, and tribal governments. On July 7, 2004, the BIA sent a copy of the EA to Colusa. Although NEPA and administrative regulations provide for the receipt of comments as to the EA, Colusa did not comment on it.

         Third, after receipt of comments by others than Colusa on the EA, the BIA decided to prepare an EIS to analyze further the possible environmental effects of the proposed fee-to-trust acquisition. Toward that end, the BIA entered into a "Professional Services Third-Party Agreement" with AES on January 6, 2005. The Agreement states that the BIA would "provide AES the technical direction, review, and quality control for the preparation of the Scoping Report, EIS, technical studies, and other NEPA-related documents" and that AES would be the "project manager on behalf of [the] BIA." Enterprise would pay AES's fees.

         Fourth, after having hired AES, the BIA engaged in a "scoping" process. "Scoping is a process that continues throughout the planning and early stages of preparation of an [EIS] . . . to engage State, local and tribal governments and the public in the early identification of concerns, potential impacts, relevant effects of past actions and possible alternative actions." 43 C.F.R. § 46.235. A "scoping" meeting was held on June 9, 2005 in Marysville. The BIA also published a Notice of Intent to Prepare an EIS in the Federal Register on May 20, 2005, and in Marysville and Sacramento newspapers shortly thereafter. Comments to the scoping process were submitted in writing and at the public meeting. Colusa did not comment.

         Fifth, having engaged in the scoping process, AES prepared a draft EIS ("DEIS"), which it completed under the BIA's supervision in February 2008. The DEIS analyzed five potential alternatives to the regulatory action: A) Enterprise Rancheria's proposed facility on the Yuba Site; B) a smaller casino without a hotel on the Yuba Site; C) a water park on the Yuba Site; D) a small casino on another site in Butte County; and E) no action. The DEIS recognized that while the proposed facility on the Yuba Site would benefit Enterprise, "the surrounding tribes that operate casinos could experience decreases in winnings, and potentially be adversely impacted by the decreases, " with the proposed casino/hotel project expected to capture "approximately $77 million [per year] in total gaming win[nings] from the local market." The analysis was based on a study by the company Gaming Market Advisors from June 2006 contained in Appendix M of the DEIS, entitled "Socio-Economic, Growth Inducing and Environmental Justice Impact Study."

         The DEIS was made available for review and comment was invited through publication in the Federal Register, and in Chico, Marysville, Oroville, and Sacramento newspapers. A public hearing was held on April 9, 2008. While multiple comments on the project were submitted, including by Indian Tribes who were opposed to the project, [4] again, Colusa did not submit any comments on the project.

         Sixth, in addition to complying with the regulatory steps required by NEPA, Enterprise and the BIA took the steps required under IGRA's Secretarial two-part determination. In Part 1 of the Secretarial two-part determination, the Secretary of the Interior determines whether "a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community." 25 U.S.C. § 2719(b)(1)(A). In making his determination that the project will not be "detrimental" to the surrounding community, the Secretary is required to seek the consultation of State and local officials, including officials of nearby Indian tribes and other communities surrounding the proposed site. 25 C.F.R. § 292.13. The regulations specify that the "surrounding community means local governments and nearby Indian tribes located within a twenty-five-mile radius of the site of the proposed gaming establishment." Id. § 292.2. However, a local government or Indian tribe "located beyond the [twenty-five]-mile radius may petition for consultation if it can establish that its governmental functions, infrastructure or services will be directly, immediately and significantly impacted by the proposed gaming establishment." Id.

         The BIA commenced the consultation on January 16, 2009, and sent letters to State and local officials within a twenty-five-mile radius of the Yuba Site soliciting their input on the proposed project. Colusa is not located within twenty-five miles of the proposed casino project. Colusa wrote to the BIA on June 23, 2009, and stated that Colusa should be consulted and that, given the potential impact of the proposed casino on Colusa's own casino revenues, the BIA should not "slavish[ly] adhere[] to the arbitrary [twenty-five]-mile standard." In response, the BIA provided Colusa with Enterprise's fee-to-trust application and the two-part determination request. Colusa did not respond to the BIA's letter.

         Seventh, in May 2010 the BIA completed the final EIS (the "FEIS"). The FEIS retained the same five alternatives which were contained in the DEIS, and incorporated the same analysis as included in the DEIS with respect to the casino alternatives' effects on other tribal casinos. The BIA made the FEIS available for public review and comment by publishing a Notice of Availability in the Federal Register and Chico, Marysville, and Oroville newspapers. Colusa then submitted a comment letter dated September 7, 2010. The comment letter complained that the FEIS's Purpose and Need Statement was unduly restrictive; the FEIS failed to consider reasonable alternatives; and Appendix M, which analyzed the effect of the proposed casino on other tribal casinos, relies on "conjecture rather than data." The BIA responded to each of the comments.

         Eighth, having published the FEIS and considered comments, the BIA published its Record of Decision under IGRA (the "IGRA ROD") in September 2011. The IGRA ROD concluded that the project would "1) be in the best interest of the Tribe and its members; and 2) that it would not be detrimental to the surrounding community." Pursuant to 25 U.S.C. § 2719(b)(1)(A), the BIA sought the concurrence of California Governor Jerry Brown in its decision. Governor Brown concurred by letter dated August 30, 2012.

         Finally, the BIA issued a Record of Decision under the IRA ("IRA ROD") in November 2012 pursuant to 25 U.S.C. § 5108. The IRA ROD concluded the trust acquisition on the Yuba Site would "provide the Tribe with the best opportunity for attracting and maintaining a significant, stable, long-term source of governmental revenue, and accordingly, the best prospects for maintaining and expanding tribal governmental programs to provide a wide range of health, education, housing, social, cultural, environmental, and other programs, as well as employment and career development opportunities for its members."

         II.

         The lawsuits began immediately following the IRA ROD's publication. The United Auburn Indian Community of the Auburn Rancheria (the "UAIC") filed a complaint in the District of Columbia on December 12, 2012. Colusa filed a complaint in the Eastern District of California a few days later. On December 20, 2012, Citizens filed a complaint in the District of Columbia as well. The Citizens and UAIC cases were consolidated and transferred to the Eastern District of California. On January 23, 2013, the Citizens/UAIC case was further consolidated with Colusa's into a single case. Enterprise intervened as a defendant. Citizens, Colusa, and UAIC immediately moved for injunctive relief to prevent the BIA from taking the land into trust for Enterprise. The motion for injunctive relief was denied. The Yuba Site was taken into trust on May 15, 2013. The lawsuit, however, continued.

         Before the district court, the UAIC, Citizens, and Colusa alleged that Interior violated NEPA, IGRA, the IRA, and the Clean Air Act, 42 U.S.C. § 7506(c). The parties cross-moved for summary judgment. In support of their motion for summary judgment, Colusa submitted a Declaration by economist Alan Meister, dated October 9, 2014, along with a two-page summary of a study Meister oversaw entitled "Economic Impacts of the Proposed Enterprise Rancheria Casino on the Colusa Indian Community & Colusa Casino Resort, " (together the "Meister Declaration"), which purports to demonstrate that Enterprise's proposed casino will have a devastating economic impact on Colusa. As a result, the Meister Declaration is particularly relevant to Plaintiffs' claim that Defendants violated IGRA, as IGRA requires the Secretary to determine that the proposed casino will not be "detrimental to the surrounding community." 25 U.S.C. § 2719(b)(1)(A).

         The regulatory process ended when the IRA ROD was issued on November 21, 2012. However, the Meister Declaration first appeared as an exhibit in support of Colusa's 2014 motion for summary judgment, and therefore was not in the Administrative Record considered by the Agency. Interior moved to strike the Meister Declaration from the district court record. The district court granted the motion to strike the Meister Declaration because it postdates the Agency decision.

         On September 23, 2015, the district court granted Defendants' motion for summary judgment on each of plaintiffs' claims. Plaintiffs also filed a motion for reconsideration, which the district court denied on January 20, 2017.

         Both Colusa and Citizens timely appealed the district court's decision, and those appeals were consolidated into this action. The UAIC is not a plaintiff in this action.

         III.

         We review the district court's grant of summary judgment de novo, Schneider v. Vennard (In re Apple Computer Sec. Litig.), 886 F.2d 1109, 1112 (9th Cir. 1989), and its order to strike the Meister Declaration for abuse of discretion, Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). Under the Administrative Procedure Act, 5 U.S.C. § 706 et. seq., an agency's action may be reversed only if it was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Mt. St. Helens Mining & Recovery Ltd. P'ship v. United States, 384 F.3d 721, 727 (9th Cir. 2004).

         IV.

         Citizens and Colusa raise a host of statutory, regulatory, and procedural challenges to the Enterprise trust acquisition.[5]

         A. Challenges Based on the Indian Reorganization Act

         1. Statutory Authority for Trust Acquisition

         As a preliminary matter, Citizens argues that the Department of the Interior does not have the statutory authority under the IRA to take land into trust for Enterprise. Citizens argues that while Enterprise may be recognized as an Indian Tribe today, Interior has failed to establish that Enterprise ...


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