Jamul Action Committee v. Jonodev Chaudhuri ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMUL ACTION COMMITTEE; JAMUL No. 15-16021
COMMUNITY CHURCH; DARLA
KASMEDO; PAUL SCRIPPS; GLEN D.C. No.
REVELL; WILLIAM HENDRIX, 2:13-cv-01920-
Plaintiffs-Appellants, KJM-KJN
v.
ORDER AND
JONODEV CHAUDHURI, Chairwoman AMENDED
of the National Indian Gaming OPINION
Commission; SALLY JEWELL,
Secretary of the U.S. Department of
the Interior; KEVIN K. WASHBURN,
Esquire, Assistant Secretary - Indian
Affairs, U.S. Department of the
Interior; AMY DUTSCHKE, Regional
Director, Bureau of Indian Affairs;
PAULA L. HART, Director of the
Office of Inidan Gaming, Bureau of
Indian Affairs; JOHN RYDZIK, Chief,
Division of Environmental, Cultural
Resources Management and Safety
of the Bureau of Indian Affairs;
DAWN HOULE, Chief of Staff for the
National Indian Gaming
Commission; U.S. DEPARTMENT OF
THE INTERIOR; NATIONAL INDIAN
GAMING COMMISSION; RAYMOND
HUNTER, Chairman, Jamul Indian
2 JAC V. CHAUDHURI
Village; CHARLENE CHAMBERLAIN;
ROBERT MESA; RICHARD TELLOW;
JULIA LOTTA; PENN NATIONAL, INC.;
SAN DIEGO GAMING VILLAGE, LLC;
C.W. DRIVER, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted December 7, 2015
San Francisco, California
Filed June 9, 2016
Amended July 15, 2016
Before: Alex Kozinski, Jay S. Bybee,
and Morgan Christen, Circuit Judges.
Order;
Opinion by Judge Christen
JAC V. CHAUDHURI 3
SUMMARY*
Indian Gaming / Environmental Law
The panel amended the opinion filed on June 9, 2016, and
affirmed the district court’s denial of a petition for a writ of
mandamus under the Administrative Procedure Act of a
number of individuals and organizations, alleging that the
National Indian Gaming Commission violated the National
Environmental Policy Act when it approved the Jamul Indian
Village’s gaming ordinance for a casino in Jamul, California,
without first conducting a NEPA environmental review.
The district court held that the Gaming Commission’s
approval of the 2013 gaming ordinance was not “major
federal action” within the meaning of NEPA requiring the
preparation of an environmental impact statement.
Affirming on different grounds than the district court, the
panel held that even if the Gaming Commission’s approval of
the gaming ordinance was a major federal action within the
meaning of NEPA, the Gaming Commission was not required
to prepare an environmental impact statement because there
was an irreconcilable statutory conflict between NEPA and
the Indian Gaming Regulatory Act, pursuant to San Luis &
Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 648 (9th
Cir. 2014) (holding that an agency need not adhere to NEPA
“where doing so ‘would create an irreconcilable and
fundamental conflict’ with the substantive statute at issue”).
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 JAC V. CHAUDHURI
COUNSEL
Kenneth Robert Williams (argued), Sacramento, California,
for Plaintiffs-Appellants.
Elizabeth Ann Peterson (argued), William B. Lazarus, Judith
Rabinowitz, and Barbara M.R. Marvin, Attorneys; John C.
Cruden, Assistant Attorney General, Environment and
Natural Resources Division; United States Department of
Justice, Washington, D.C.; Rebecca Ross, Office of the
Solicitor, United States Department of the Interior,
Washington, D.C.; John Hay, Office of the General Counsel,
National Indian Gaming Commission, Washington, D.C.; for
Federal Defendants-Appellees.
Frank Lawrence (argued), Law Office of Frank Lawrence,
Grass Valley, California, for Tribally-Related Defendants-
Appellees.
Patrick D. Webb, Webb & Carey, San Diego, California, for
Amici Curiae Walter Rosales and Karen Toggery.
ORDER
The Tribally-related defendants’ motion to correct non-
substantive errors in the opinion is GRANTED. The opinion
filed on June 9, 2016, and appearing at 2016 WL 3201335, is
amended as follows:
On page 4 of the slip opinion, replace the phrase “a sub-
group of tribal members” with the phrase “a number of
individuals”.
JAC V. CHAUDHURI 5
On page 7 of the slip opinion, replace the phrase “on non-
tribal lands that it requested from the Secretary of the Interior
in the form of a trust-transfer under the Indian Regulatory
Act” with the phrase “on land that it requested from the
Secretary of the Interior in the form of a trust-transfer under
the Indian Reorganization Act”.
The parties may file petitions for rehearing or rehearing
en banc. The time to file a petition for rehearing or rehearing
en banc shall be calculated from the initial filing date of this
opinion, June 9, 2016.
OPINION
CHRISTEN, Circuit Judge:
This case is about an Indian gaming casino in Jamul,
California, a rural community close to San Diego, California.
The Jamul Indian Village, a federally recognized Indian tribe
and a non-party to this suit (“the Tribe”), is building a casino
in Jamul. A number of individuals and organizations,
including the Jamul Action Committee, the Jamul
Community Church, and four residents of rural Jamul
(collectively “JAC”), opposes the casino. This lawsuit is
JAC’s most recent effort to stop its construction. See, e.g.,
Rosales v. United States, 275 F. App’x 1 (D.C. Cir. 2008).
JAC contends that the National Indian Gaming Commission
(“NIGC”) violated the National Environmental Policy Act
(“NEPA”) when it approved the Tribe’s gaming ordinance
(“GO”) without first conducting a NEPA environmental
review. JAC petitioned the district court for a writ of
mandamus under the Administrative Procedure Act (“APA”),
6 JAC V. CHAUDHURI
arguing that the NEPA environmental review was “agency
action unlawfully withheld.” 5 U.S.C. § 706(1). The district
court denied relief. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1), and we affirm.1
I.
A.
This appeal turns on the interplay between two federal
statutes: the Indian Gaming Regulatory Act (“IGRA”),
25 U.S.C. §§ 2701–2721, and NEPA, 42 U.S.C.
§§ 4321–4370h.
Congress enacted IGRA to regulate gaming on Indian
lands. Big Lagoon Rancheria v. California, 789 F.3d 947,
949 (9th Cir. 2015) (en banc). IGRA divides gaming
activities into “classes” based on the types of games involved.
Class III gaming (the kind at issue here) “often involves ‘the
types of high-stakes games usually associated with Nevada-
style gambling,’” id. (citation omitted), such as banking card
games and slot machines. 25 U.S.C. § 2703(8). IGRA
permits class III gaming only if it is “conducted in
conformance with a Tribal–State compact entered into by the
Indian tribe and the State,” id. § 2710(d)(1)(C), and approved
by the Secretary of the Interior, id. § 2710(d)(3)(B).
IGRA requires Indian tribes to receive NIGC’s approval
of a gaming ordinance before engaging in class III gaming on
Indian land. N. Cty. Cmty. All., Inc. v. Salazar, 573 F.3d 738,
1
In this opinion we address only JAC’s contention that NIGC violated
NEPA when it approved the GO. We address JAC’s remaining arguments
in a memorandum disposition filed contemporaneously with this opinion.
JAC V. CHAUDHURI 7
741 (9th Cir. 2009). A gaming ordinance is a resolution
adopted by the tribe that describes how the tribe will operate
its gambling facilities. 25 U.S.C. § 2710(b)(2)(B). NIGC
“shall” approve a gaming ordinance that meets IGRA’s
requirements “by not later than the date that is 90 days after
the date on which [the ordinance] is submitted to the
Chairman.” Id. § 2710(e). If NIGC has not acted on the
proposed ordinance by the end of the ninety-day period, the
gaming ordinance “shall be considered to have been approved
by the Chairman, but only to the extent such ordinance or
resolution is consistent with the provisions of” IGRA. Id.; AT
& T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 906 n.9
(9th Cir. 2002) (noting that NIGC’s tacit approval of a
proposed gaming ordinance is final agency action).
NEPA “is our basic national charter for protection of the
environment.” 40 C.F.R. § 1500.1(a). NEPA imposes on
federal agencies certain “‘action-forcing’ procedures that
require that agencies take a ‘hard look’ at environmental
consequences” of major federal action. Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989); see also
42 U.S.C. § 4332. Those procedures are designed to “insure
[sic] that environmental information is available to public
officials and citizens before decisions are made and before
actions are taken,” 40 C.F.R. § 1500.1(b), and to “help public
officials make decisions that are based on understanding of
environmental consequences,” id. § 1500.1(c). Preeminent
among these “action-forcing procedures” is NEPA’s
requirement that federal agencies contemplating “major
Federal action[]” prepare an environmental impact statement
(“EIS”) analyzing that action. See 42 U.S.C. § 4332;
40 C.F.R. § 1502.3. “NEPA directs that, ‘to the fullest extent
possible . . . public laws of the United States shall be
interpreted and administered in accordance with [it].’”
8 JAC V. CHAUDHURI
Westlands Water Dist. v. Nat. Res. Def. Council, 43 F.3d 457,
460 (9th Cir. 1994) (quoting 42 U.S.C. § 4332 (1988)).
Therefore, NEPA applies “unless the existing law applicable
to such agency’s operations expressly prohibits or makes full
compliance with one of the directives impossible.” Jones v.
Gordon, 792 F.2d 821, 826 (9th Cir. 1986) (quoting
115 Cong. Rec. 39703 (1969)).
B.
The Jamul Indian Village casino has been in the works for
more than fifteen years. The Tribe first enacted a gaming
ordinance for class III, casino-style gaming in Jamul in the
late 1990s, and NIGC published notice of approval of the
ordinance in the Federal Register on January 29, 1999.
64 Fed. Reg. 4,722, 4,723 (Jan. 29, 1999). The next year, the
Tribe entered into a compact with the State of California to
conduct class III gaming. 65 Fed. Reg. 31,189 (May 16,
2000) (Secretary of the Interior’s notice of approval of the
compact). The Tribe initially planned to build parts of the
casino on land that it requested from the Secretary of the
Interior in the form of a trust-transfer under the Indian
Reorganization Act, 25 U.S.C. § 461; see 67 Fed. Reg. 15,582(Apr. 2, 2002), but it ultimately redesigned the proposed
project to eliminate the need for the trust land, 78 Fed. Reg.
21,398, 21,399 (Apr. 10, 2013). The Tribe sought and
obtained NIGC’s approval of a revised gaming ordinance for
the redesigned project in 2013. Site preparation for the
casino began early in 2014, and as of the time we held oral
argument, construction was underway.
JAC V. CHAUDHURI 9
C.
In September 2013, plaintiffs sued NIGC, its chair, and
several other federal actors (“Federal Defendants”); tribal
officials in their individual capacities (“Tribally-related
defendants”); and several private companies alleging, inter
alia, that defendants failed to comply with NEPA when
evaluating the Jamul casino. In January 2015, plaintiffs filed
in the district court a motion for a writ of mandamus under
5 U.S.C. § 706(1). That part of the APA enables federal
courts to “compel agency action unlawfully withheld or
unreasonably delayed.” Id. In their motion, plaintiffs
requested “a writ of mandate to the Federal Defendants
directing them to comply with NEPA and finalize and
circulate a draft [supplemental environmental impact
statement] SEIS while there is still time to avoid the
consequences of the Defendants’ non-compliance with
NEPA.” The district court denied relief, holding, in relevant
part, that NIGC’s approval of the 2013 gaming ordinance was
not “major federal action” within the meaning of NEPA.
40 C.F.R. § 1508.18 (defining “major federal action”).
II.
We review de novo the district court’s decision on issues
of law, including whether NEPA applies to the agency action
at issue here. See San Luis & Delta-Mendota Water Auth. v.
Locke, 776 F.3d 971, 991 (9th Cir. 2014). We review JAC’s
petition for a writ of mandamus under the “arbitrary or
capricious” standard of review. Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 763 (2004) (“An agency’s decision not
to prepare an EIS can be set aside only upon a showing that
it was ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’”).
10 JAC V. CHAUDHURI
III.
On appeal, JAC argues that NEPA required NIGC to
conduct an environmental review before it approved the
Tribe’s 2013 gaming ordinance, and NIGC’s failure to do so
means that it “unlawfully withheld . . . agency action.”
5 U.S.C. § 706(1); Norton v. S. Utah Wilderness Alliance,
542 U.S. 55, 64 (2004) (“[A] claim under § 706(1) can
proceed only where a plaintiff asserts that an agency failed to
take a discrete agency action that it is required to take.”). We
disagree. Even if, as appellants argue, NIGC’s approval of
the gaming ordinance was a “major Federal action[]” within
the meaning of NEPA, 42 U.S.C. § 4332, NIGC was not
required to prepare an EIS because there is an irreconcilable
statutory conflict between NEPA and IGRA.
The federal respondents contend (and the district court
concluded) that our decision in North County Community
Alliance v. Salazar, 573 F.3d 738, 740 (9th Cir. 2009),
conclusively resolves the NEPA issues presented here. We
respectfully disagree. The plaintiffs in North County sued
NIGC after the Commissioner approved a tribal gaming
ordinance without first determining whether the tribe’s
proposed casino was on “Indian lands,” as defined by IGRA.
The crux of the plaintiffs’ complaint was that the agency
violated IGRA because it failed to make an “Indian lands
determination.” Id. The North County plaintiffs also argued
that NIGC violated NEPA, a challenge we resolved as
follows:
The Alliance claims that NIGC’s failure to
make an Indian lands determination
constituted a “major Federal action[]” under
42 U.S.C. § 4332(C) requiring environmental
JAC V. CHAUDHURI 11
review, including preparation of an EIS, under
NEPA. We disagree. There has been no
major federal action in this case. Therefore,
the Appellees had no obligation under NEPA.
Id. at 749. North County does not settle the NEPA issue
presented here because we limited our NEPA analysis in
North County to the issue presented: Whether “NIGC’s
failure to make an Indian lands determination constituted a
‘major Federal action[]’ under 42 U.S.C. § 4332(C) requiring
environmental review, including preparation of an EIS, under
NEPA.” Id.; see also Appellant’s Reply Brief at *15 n.7,
North County, 573 F.3d at 738 (No. 07-36048), 2007 WL
5445598 (the Indian lands determination would have
“provide[d] the ‘major federal action’ required to trigger
NEPA”). North County did not address whether NEPA
requires NIGC to conduct an environmental review before
approving a gaming ordinance. We have not had occasion to
address this issue in our prior decisions, but we turn to it now.
Our court has recognized two circumstances where an
agency need not complete an EIS even in the presence of
major federal action and “despite an absence of express
statutory exemption.” San Luis & Delta-Mendota Water
Auth. v. Jewell, 747 F.3d 581, 648 (9th Cir. 2014). First, an
agency need not adhere to NEPA “where doing so ‘would
create an irreconcilable and fundamental conflict’ with the
substantive statute at issue.” Id. Second, in limited instances,
a substantive statute “displaces” NEPA’s procedural
requirements. Id. This case falls into the first category.
The Supreme Court first considered the presence of “an
irreconcilable and fundamental conflict” in Flint Ridge
Development Co. v. Scenic Rivers Ass’n of Oklahoma.
12 JAC V. CHAUDHURI
426 U.S. 776 (1976). Flint Ridge involved a statute requiring
developers of subdivisions to prepare a statement about their
proposed project before marketing homes to the public. Id.at 779–80. Developers were required to file their statement
with the U.S. Department of Housing and Urban
Development (“HUD”). The statute provided that a
developer’s statement would “become[] effective
automatically on the 30th day after filing, or on such earlier
date as the [HUD] Secretary may determine.” Id. at 781.
Defendants proposed construction of a subdivision near the
Illinois River in Oklahoma. While the paperwork was
pending, plaintiffs petitioned HUD to prepare an EIS to study
the impact of the subdivision on the river. HUD rejected
plaintiffs’ request, and they sought judicial review. The
Supreme Court upheld the agency’s action, concluding that
there was an irreconcilable conflict between the HUD
statute’s thirty day timeline and NEPA: “It is inconceivable
that an environmental impact statement could, in 30 days, be
drafted, circulated, commented upon, and then reviewed and
revised in light of the comments.” Id. at 788–89. Thus,
“even if the Secretary’s action in this case constituted major
federal action significantly affecting the quality of the human
environment so that an environmental impact statement
would ordinarily be required, there would be a clear and
fundamental conflict of statutory duty” between the HUD
statute and NEPA, such that “NEPA’s impact statement
requirement is inapplicable.” Id. at 791. Under Flint Ridge,
“[a]n irreconcilable conflict is created if a statute mandates a
fixed time period for implementation and this time period is
too short to allow the agency to comply with NEPA.”
Westlands Water Dist., 43 F.3d at 460.
Our court has been reticent to find a statutory conflict
between NEPA and other provisions of the U.S. Code lest
JAC V. CHAUDHURI 13
Flint Ridge’s exception undermine Congress’s intent that
NEPA apply broadly. See, e.g., Forelaws on Board v.
Johnson, 743 F.2d 677, 683 (9th Cir. 1985) (“NEPA’s
legislative history reflects Congress’s concern that agencies
might attempt to avoid any compliance with NEPA by
narrowly construing other statutory directives to create a
conflict with NEPA.”), as amended. Thus, we have held that
a short time frame for agency action does not create a
statutory conflict under Flint Ridge when an agency, not
Congress, imposes a deadline. Id. at 683–85. There is
likewise no “irreconcilable conflict” under Flint Ridge when
the triggering act for a short statutory time table “is within the
control of the” agency. Jones, 792 F.2d at 826; see also id.(declining to find a statutory conflict between NEPA and the
Marine Mammal Protection Act’s permit approval timeline
because “the triggering act for the statutory time table, the
publication of notice of a permit application, is within the
control” of the agency, and the agency “could withhold
publication long enough to comply with any NEPA
requirement for preparation of an” EIS). By contrast, an
irreconcilable conflict does exist where “Congress did not
give the Secretary discretion over when he may carry out his
duties,” Westlands Water Dist., 43 F.3d at 460, and the statute
imposing the time table provides that the proposed action is
approved “unless the [agency] acts before the expiration of
the statutory period,” Vill. of Barrington, Ill. v. Surface
Transp. Bd., 636 F.3d 650, 662 (D.C. Cir. 2011)
(distinguishing Flint Ridge on this ground); see also Flint
Ridge, 426 U.S. at 781.
Here, like in Flint Ridge and Westlands Water District,
Congress imposed an unyielding statutory deadline for
agency action. IGRA requires NIGC to approve a gaming
ordinance or resolution “by not later than the date that is 90
14 JAC V. CHAUDHURI
days after the date on which any tribal gaming ordinance or
resolution is submitted to the Chairman . . . if it meets the
requirements of this section.” 25 U.S.C. § 2710(e). Courts
routinely interpret this provision of IGRA as creating a
mandatory deadline for agency action. See, e.g., Coeur
d’Alene Tribe, 295 F.3d at 906 n.9 (an agency’s tacit approval
of a gaming ordinance under § 2710(e) is a final agency
action for purposes of the APA); Massachusetts v.
AQUINNAH, No. 13-13286-FDS, 2015 WL 7185436, at *6
n.4 (D. Mass. Nov. 13, 2015) (“A gaming ordinance is
automatically approved by NIGC, by operation of law, if it
does not act on the ordinance within 90 days.”); cf. Gottlieb
v. Peña, 41 F.3d 730, 731 (D.C. Cir. 1994) (contrasting
§ 2710(e), a mandatory deadline for agency action, with the
“ten-month period for final agency action on applications for
correction of Coast Guard records,” a discretionary deadline
for agency action). The deadline at issue here was imposed
by Congress, not NIGC. See 25 U.S.C. § 2710(e). And,
unlike in Jones, the act triggering IGRA’s timetable is not
within NIGC’s control because it is a tribe’s submission of a
proposed gaming ordinance to the agency that triggers the
statutory countdown. Id.; cf. Jones, 792 F.2d at 826. Finally,
like in Flint Ridge, a gaming ordinance or resolution
automatically takes effect after ninety days with or without
action by the Commissioner. 25 U.S.C. § 2710(e) (“Any such
ordinance or resolution not acted upon at the end of that
90-day period shall be considered to have been approved by
the Chairman . . . .”).
There is no question that it would be impossible for NIGC
to prepare an EIS in the ninety days it has to approve a
gaming ordinance. The Supreme Court in Flint Ridge
recognized that
JAC V. CHAUDHURI 15
[d]raft environmental impact statements on
simple projects prepared by experienced
personnel take some three to five months to
complete, at least in the Department of the
Interior. . . . Once a draft statement is
prepared, [Council on Environmental Quality]
guidelines provide that ‘[t]o the maximum
extent practicable’ no action should be taken
sooner than 90 days after a draft
environmental impact statement (and 30 days
after the final statement) has been made
available for comment.
Flint Ridge, 426 U.S. at 789 n.10. In keeping with the
Supreme Court’s analysis, we have previously assumed that
it takes an agency at least 360 days to prepare an EIS. See
Jones, 792 F.2d at 825.
NEPA’s regulations confirm that an agency cannot
prepare an EIS in ninety days. Before publishing its final EIS
on a proposed project, an agency must: (1) publish in the
Federal Register a notice of intent to prepare an EIS,
40 C.F.R. §§ 1508.22, 1501.7; (2) gather input on the scope
of issues the EIS should address (this is called scoping), id.§ 1501.7; (3) prepare a draft EIS and publish that document
in the Federal Register, id. §§ 1502.9, 1506.10(a); (4) provide
the public an opportunity to comment on the draft EIS and
respond to those comments, id. § 1503.4; (5) prepare the final
EIS, id. § 1502.9; and (6) prepare and issue a record of
decision, id. § 1505.2. The regulations make it impossible for
an agency to complete these steps within ninety days. NIGC
has previously given the public thirty days to comment on the
scope and implementation of a proposed EIS. See 78 Fed.
Reg. 21,398 (Apr. 10, 2013). An agency must provide forty-
16 JAC V. CHAUDHURI
five days for public comment on a draft EIS, 40 C.F.R.
§ 1506.10(c), and it must wait at least thirty days after
publishing the final EIS before finalizing the proposed action,
id. § 1506.10(b)(2). In all cases, “[n]o decision on the
proposed action shall be made or recorded . . . until . . .
[n]inety (90) days after publication of the” notice of the draft
EIS in the Federal Register. Id. § 1506.10(b)(1). So,
assuming it takes no time to respond to the public’s view on
scope and implementation, prepare a draft EIS, and
incorporate public comments into the final EIS, the shortest
time frame in which NIGC could prepare an EIS would be
one hundred and twenty days. Plainly, there is an
irreconcilable statutory conflict between the mandatory
agency deadline in 25 U.S.C. § 2710(e) and NEPA.
This conclusion is consistent with NIGC’s informal
analysis of its own NEPA obligations. NIGC published a
draft NEPA Handbook in 2009 that says: “In some cases, the
NIGC’s statutory requirements are inconsistent with NEPA.
The following NIGC action(s) have been determined to fit
into this category: . . . Approval of Tribal gaming ordinances
or resolutions as provided in § 2710 of the IGRA, which must
be completed within ninety (90) days of submission to the
NIGC.” 74 Fed. Reg. 63,765, 63,769 (Dec. 4, 2009).
Contrary to JAC’s arguments, NIGC’s approval of the
Tribe’s gaming ordinance without conducting a NEPA
environmental review did not violate NIGC’s obligations
under NEPA because “where a clear and unavoidable conflict
in statutory authority exists, NEPA must give way.” Flint
Ridge, 426 U.S. at 788. Though the district court relied on
other grounds, we affirm its denial of plaintiff’s requested
writ of mandamus.
JAC V. CHAUDHURI 17
CONCLUSION
The decision of the district court is
AFFIRMED.