North County Community Alliance, Inc. v. Kempthorne ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTH COUNTY COMMUNITY 
ALLIANCE, INC.,
Plaintiff-Appellant,
v.
No. 07-36048
KEN SALAZAR, Secretary of the
United States Department of the  D.C. No.
CV-07-01098-JCC
Interior; DEPARTMENT OF INTERIOR;
PHILIP HOGEN, Chairman of the OPINION
National Indian Gaming
Commission; NATIONAL INDIAN
GAMING COMMISSION,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
March 11, 2009—Seattle, Washington
Filed July 15, 2009
Before: William A. Fletcher, Ronald M. Gould and Richard
C. Tallman, Circuit Judges.
Opinion by Judge William A. Fletcher;
Partial Concurrence and Partial Dissent by Judge Gould
8903
8906 NORTH COUNTY v. SALAZAR
COUNSEL
Brian D. Amsbary, Richard M. Stephens, Groen Stephens &
Klinge, LLP, Bellevue, Washington, for the appellant.
Rebecca Shapiro Cohen, Brian Kipnis, Office of the United
States Attorney, Seattle, Washington, Aaron P. Avila, Robert
Lundman, Ronald J. Tenpas, U.S. Department of Justice,
Washington, D.C., for the appellees.
NORTH COUNTY v. SALAZAR 8907
OPINION
W. FLETCHER, Circuit Judge:
The North County Community Alliance, Inc., (“Alliance”)
brought suit against the National Indian Gaming Commission
(“NIGC”), the Department of Interior, and those agencies’
principal officers (collectively, “Appellees”). The Alliance
claims that the NIGC’s failure to make an “Indian lands”
determination either before approving the Nooksack Indian
Tribe’s (“Nooksacks’ ”) gaming ordinance (the “Ordinance”)
in 1993, or before the Nooksacks licensed and began con-
structing the Northwood Crossing Casino (“Casino”) in 2006,
violated the Indian Gaming Regulatory Act (“IGRA”). The
Alliance also claims that Appellees violated the National
Environmental Policy Act (“NEPA”) by failing to prepare an
environmental impact statement (“EIS”) in connection with
construction of the Casino.
We hold that the Alliance’s challenge to the NIGC’s 1993
approval of the Ordinance, insofar as it relates to the licensing
and construction of the Casino, is not time-barred. We hold on
the merits that the NIGC did not have a duty under IGRA to
make an Indian lands determination in 1993 before approving
the Nooksacks’ non-site-specific proposed gaming Ordinance.
We also hold that the NIGC did not have a duty under IGRA
to make an Indian lands determination in 2006 when the
Nooksacks licensed and began construction of the Casino pur-
suant to the approved Ordinance. Finally, we hold that there
was no violation of NEPA.
I. Background
The Nooksack Indian Tribe is a federally recognized Indian
tribe with a reservation in northwestern Washington State
near the Canadian border. Beginning in the early 1990s, the
Nooksacks sought to engage in tribal gaming.
8908 NORTH COUNTY v. SALAZAR
IGRA requires Indian tribes to receive NIGC’s approval of
a gaming ordinance before engaging in “class II” or “class
III” gaming. 25 U.S.C. § 2710(b), (d). Class II gaming
includes bingo and card games except for “banking” card
games like baccarat, chemin de fer, and blackjack. Id.
§ 2703(7). Class III gaming includes banking card games and
slot machines. Id. § 2703(8). The Nooksacks submitted a pro-
posed gaming Ordinance to the NIGC, which the NIGC
approved in 1993.
Since shortly after the approval of the Ordinance, the
Nooksacks have operated a class III gaming facility on reser-
vation land in Deming, Washington. That facility is not at
issue.
The Ordinance does not identify any specific site or sites
where gaming might take place. With respect to class II gam-
ing, it provides only that the Nooksack Gaming Commission
“shall issue a separate license to each place, facility, or loca-
tion on Indian lands where Class II gaming is conducted
under this ordinance.” In 2006, pursuant to the Ordinance, the
Nooksacks licensed and began constructing the Casino as a
class II gaming facility.
The Casino is located on a twenty-acre parcel owned by the
Nooksacks about one-half mile south of the Canadian border
and about thirty-three miles by road from the Nooksack reser-
vation. According to the Alliance’s complaint, this “parcel of
largely undeveloped rural land is mostly surrounded by vacant
and non-Indian farming lands and woodlands, is situated near
Lynden, Washington[,] and is served by . . . highways, public
services and infrastructure provided by Whatcom County and
the State of Washington.”
The Alliance is a non-profit organization whose stated goal
is to protect the environment. According to the complaint, its
members include residents and property owners near the
Casino site, as well as some members of the Nooksack Tribe.
NORTH COUNTY v. SALAZAR 8909
In July 2007, the Alliance filed suit in federal district court
against Appellees.
IGRA limits tribal gaming to locations on “Indian lands” as
defined in 25 U.S.C. § 2703(4). The Alliance claims that the
NIGC violated IGRA by failing to determine whether the land
on which the Casino is built is Indian land, either in 1993
when it approved the Ordinance or in 2006 when the Nook-
sacks licensed and began constructing the Casino. The Alli-
ance also claims that Appellees violated NEPA by failing to
prepare an EIS in connection with the construction of the
Casino.
The district court dismissed the Alliance’s suit with preju-
dice under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). The Alliance timely appealed.
II. Standard of Review
We review de novo questions of law raised in dismissals
under Rules 12(b)(1) and 12(b)(6). Rhoades v. Avon Prods.,
Inc., 504 F.3d 1151, 1156 (9th Cir. 2007) (Rules 12(b)(1) and
12(b)(6)); Granite Rock Co. v. Int’l Bhd. of Teamsters,
Freight Constr. Gen. Drivers, Warehousemen & Helpers,
Local 287 (AFL-CIO), 546 F.3d 1169, 1172 (9th Cir. 2008)
(questions of law). This court must accept “all allegations of
material fact as true and construe them in the light most favor-
able” to the Alliance. Parks Sch. of Bus., Inc. v. Symington,
51 F.3d 1480, 1484 (9th Cir. 1995). With respect to NEPA,
“we must ensure that the agency has taken a ‘hard look’ at the
environmental consequences” of proposed actions that consti-
tute “major Federal actions” under 42 U.S.C. § 4332(C). Blue
Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,
1211 (9th Cir. 1998).
III. Discussion
We address the following questions. First, does the statute
of limitations bar the Alliance’s challenge to the NIGC’s 1993
8910 NORTH COUNTY v. SALAZAR
approval of the Ordinance? Second, was the NIGC required
to determine the status of the land on which the Casino could
or would be built, either when it approved the Ordinance in
1993 or before the licensing and construction of the Casino in
2006? Third, did Appellees violate NEPA by failing to pre-
pare an EIS before the licensing and construction of the
Casino?
A. Statute of Limitations
[1] The applicable statute of limitations provides that
“every civil action commenced against the United States shall
be barred unless the complaint is filed within six years after
the right of action first accrues.” 28 U.S.C. § 2401(a).
The NIGC approved the Nooksacks’ Ordinance in 1993.
The construction of the Casino began in 2006. The Alliance
filed suit in 2007. The statute of limitations clearly does not
bar the Alliance’s claim that the NIGC was required to deter-
mine in 2006, before licensing and construction, whether the
Casino would be located on Indian lands. The question is
whether the statute of limitations bars Alliance’s claim that
the NIGC was required to determine in 1993, when it
approved the Ordinance, the status of the land on which the
Casino is now located. For the reasons that follow, we con-
clude that the statute of limitations does not bar that claim.
Our decision in Wind River Mining Corp. v. United States
(“Wind River”’), 946 F.2d 710 (9th Cir. 1991), guides our
analysis. In Wind River, the Bureau of Land Management
(“BLM”) had classified certain federal lands as Wilderness
Study Areas (“WSAs”) in 1979. Mining was forbidden within
a WSA. In 1986 and 1987, the Wind River Mining Corpora-
tion (“Wind River”) asked the BLM to declare that its deci-
sion to create WSA 243 was invalid because that particular
WSA was not “roadless” as required by statute. The BLM
denied the request. In 1987, the Interior Board of Land
Appeals denied Wind River’s administrative appeal.
NORTH COUNTY v. SALAZAR 8911
[2] Wind River filed suit in 1989 alleging that the BLM’s
1979 action in creating WSA 243 was ultra vires. We permit-
ted Wind River’s claim to proceed:
If . . . a challenger contests the substance of an
agency decision as exceeding constitutional or statu-
tory authority, the challenger may do so later than
six years following the decision by filing a complaint
for review of the adverse application of the decision
to the particular challenger. Such challenges, by their
nature, will often require a more “interested” person
than generally will be found in the public at large.
For example, assuming that Wind River’s challenge
to the designation of WSA 243 is merited, no one
was likely to have discovered that the BLM’s 1979
designation of this particular WSA was beyond the
agency’s authority until someone actually took an
interest in that particular piece of property, which
only happened when Wind River staked its mining
claims. The government should not be permitted to
avoid all challenges to its actions, even if ultra vires,
simply because the agency took the action long
before anyone discovered the true state of affairs.
Id. at 715.
In Artichoke Joe’s California Grand Casino v. Norton
(“Artichoke Joe’s”), 278 F. Supp. 2d 1174 (E.D. Cal. 2003),
plaintiffs challenged the Department of Interior’s decision to
grant federal recognition of the Lytton Rancheria of Califor-
nia as an Indian tribe, even though the challenge was brought
more than six years after the recognition occurred. Applying
Wind River, the district court held that plaintiffs’ challenge
was not time-barred. It wrote:
Plaintiffs’ claim concerning recognition of Lytton as
a tribe is a substantive challenge to the Secretary’s
recognition decision. Further, when the Secretary
8912 NORTH COUNTY v. SALAZAR
made the decision to . . . grant Lytton federal recog-
nition in 1991, plaintiffs could have had no idea that
Lytton’s tribal status would affect them [by leading
to tribal gaming nearby].
278 F. Supp. 2d at 1183.
[3] Like the plaintiffs in Wind River and Artichoke Joe’s,
the Alliance argues that the NIGC acted ultra vires in approv-
ing the Nooksacks’ proposed Ordinance in 1993 without first
making an Indian lands determination for locations where
gaming would be permitted under the Ordinance. “[N]o one
was likely to have discovered” that the NIGC’s approval was
“beyond the agency’s authority until someone actually took
an interest in” it. Wind River, 946 F.2d at 715. The Alliance
“took an interest” in 2006 when construction of the Casino
began near some of its members’ properties. The Alliance
“could have had no idea” in 1993 that the NIGC’s approval
of the Nooksacks’ Ordinance “would affect them” in 2006 by
leading to construction of a casino thirty-three miles from the
Nooksack reservation. See Artichoke Joe’s, 278 F. Supp. 2d
at 1183.
[4] We therefore conclude that the statute of limitations
does not bar the Alliance’s claim that NIGC was required to
determine in 1993 the “Indian lands” status of the parcel on
which the Casino was built in 2006.
B. NIGC Duty to Determine Indian Lands Status
The Alliance claims that the NIGC was required to deter-
mine the status of the land on which the Casino could or
would be built, either in 1993, when it approved the Ordi-
nance, or in 2006, before the licensing and construction of the
Casino. The Alliance contends that the parcel on which the
Casino is built is not “Indian land” within the meaning of 25
U.S.C. § 2703(4). However, this question is not before us, as
the Alliance acknowledges. Rather, the question before us is
NORTH COUNTY v. SALAZAR 8913
whether IGRA required the NIGC to determine the Indian
lands status of the Casino parcel in 1993 or 2006.
1. Subject Matter Jurisdiction
We first address our jurisdiction to review the 1993 action,
and 2006 inaction, of the NIGC. IGRA specifies various cir-
cumstances in which federal courts may review the decisions
of the NIGC: “Decisions made by the Commission pursuant
to section[ ] 2710 [tribal gaming ordinances], . . . of this title
shall be final agency decision for purposes of appeal to the
appropriate Federal district court pursuant to chapter 7 of
Title 5.” 25 U.S.C. § 2714. The NIGC’s 1993 approval of the
Nooksacks’ Ordinance was a decision “made by the Commis-
sion pursuant to section[ ] 2710.” We therefore conclude that
we have jurisdiction under § 2714 to review that decision.
That is, we have jurisdiction to determine whether the NIGC
was required, as part of its approval of the Ordinance in 1993,
to make an Indian lands determination with respect to the par-
cel on which the Casino is located.
The Administrative Procedure Act (“APA”) provides that
a federal court has jurisdiction to “compel agency action
unlawfully withheld or unreasonably delayed.” 5 U.S.C.
§ 706(1). Appellees appear to concede that we have jurisdic-
tion under this section. We agree with Appellees’ apparent
concession and conclude that we have jurisdiction. See Con-
federated Tribes of the Umatilla Indian Reservation v. Bonne-
ville Power Admin., 342 F.3d 924, 930 (9th Cir. 2003) (for
judicial review under § 706(1), petitioners “must at least show
‘agency recalcitrance . . . in the face of clear statutory duty or
. . . of such magnitude that it amounts to an abdication of stat-
utory responsibility’ ” (ellipses in original)).
2. Merits
a. NIGC’s Approval of the Ordinance in 1993
It is undisputed that IGRA authorizes tribal gaming only on
“Indian lands” as defined in 25 U.S.C. § 2703(4). IGRA pro-
8914 NORTH COUNTY v. SALAZAR
vides that Congress finds that “Federal law does not provide
clear standards or regulations for the conduct of gaming on
Indian lands.” 25 U.S.C. § 2701(3) (emphasis added). IGRA
establishes “independent Federal regulatory authority” and
“Federal standards” for gaming “on Indian lands.” Id.
§ 2702(3) (emphasis added). IGRA provides that an Indian
tribe can engage in “class II gaming on Indian lands within
such tribe’s jurisdiction” if certain conditions are met. Id.
§ 2710(b)(1) (emphasis added). Indian tribes are required to
issue separate licenses “for each place, facility, or location on
Indian lands at which class II gaming is conducted.” Id.
(emphasis added). IGRA provides that class III gaming “shall
be lawful on Indian lands only” if certain conditions are met.
Id. § 2710(d)(1) (emphasis added).
[5] Tribal gaming on non-Indian lands is not authorized by
or regulated under IGRA. A notice of final rulemaking pub-
lished by the NIGC in February 2008 stated that “IGRA
requires that all gaming take place on ‘Indian lands’ ” and
“[g]aming that does not take place on Indian lands is subject
to all state and local gambling laws and federal laws apart
from IGRA.” Facility License Standards, 73 Fed. Reg. 6019,
6022 (Feb. 1, 2008) (emphasis added).
The Chairman of the NIGC is required to approve any pro-
posed tribal ordinance concerning class II gaming if the pro-
posed ordinance meets certain specified conditions. 25 U.S.C.
§ 2710(b)(2) (“The Chairman shall approve any tribal ordi-
nance . . . if such ordinance . . . provides . . . .” (emphasis
added)). For example, the proposed ordinance must provide
(subject to one exception not relevant here) that the tribe will
have “the sole proprietary interest and responsibility for the
conduct of any gaming activity”; that the net revenues from
the gaming activity will be used only for certain specifically
described purposes, such as funding tribal government and
providing for the general welfare of the tribe; that there will
be “annual outside audits”; and that the construction, mainte-
nance, and operation of the gaming facility will be conducted
NORTH COUNTY v. SALAZAR 8915
in such a manner as to protect the environment and the public
health and safety. Id. § 2710(b)(2)(A)-(C), (E); see also 25
C.F.R. §§ 522.4, 522.6.
[6] There is no explicit requirement in IGRA that, as a pre-
condition to the NIGC’s approval, a proposed ordinance iden-
tify the specific sites on which the proposed gaming is to take
place. IGRA specifies only that, pursuant to an approved ordi-
nance, “[a] separate licence issued by the Indian tribe shall be
required for each place, facility, or location on Indian lands at
which class II gaming is conducted.” 25 U.S.C. § 2710(b)(1).
However, the Alliance argues that NIGC’s duty to make an
Indian lands determination before approving an ordinance is
implicit in IGRA.
The Alliance points out that IGRA provides that the NIGC
“shall approve any tribal ordinance or resolution concerning
the conduct, or regulation of class II gaming on the Indian
lands within the tribe’s jurisdiction” if it satisfies the condi-
tions referred to above. Id. § 2710(b)(2) (emphasis added);
see also id. § 2710(d)(2)(B) (same for approval of class III
gaming ordinances). The Alliance argues that the italicized
language not only limits the ordinances that the NIGC can
approve to those that permit gaming on Indian lands, but also
imposes on the NIGC an obligation to make an Indian lands
determination when it approves a proposed ordinance.
Implicit in the Alliance’s argument is a contention that a pro-
posed gaming ordinance must specifically identify all the sites
at which gaming could or would take place.
In support of its argument, the Alliance cites Citizens
Against Casino Gambling in Erie County v. Kempthorne
(“Erie County”), 471 F. Supp. 2d 295 (W.D.N.Y. 2007).
Plaintiff in Erie County challenged the NIGC’s decision to
approve a tribal gaming ordinance without first making an
“Indian lands” determination. The district court in Erie
County wrote:
8916 NORTH COUNTY v. SALAZAR
Whether proposed gaming will be conducted on
Indian lands is a critical, threshold jurisdictional
determination of the NIGC. Prior to approving an
ordinance, the NIGC Chairman must confirm that
the situs of proposed gaming is Indian lands. If gam-
ing is proposed to occur on non-Indian lands, the
Chairman is without jurisdiction to approve the ordi-
nance.
Id. at 323-24. The court held that “the NIGC Chairman has a
duty to determine whether a tribe’s proposed gaming will
occur on Indian lands before affirmatively approving an ordi-
nance.” Id. at 324.
The gaming ordinance at issue in Erie County was different
from the Ordinance at issue in this case. The ordinance in that
case was a tribal-state compact between the Seneca Nation
and the State of New York that was submitted to the NIGC
as a proposed class III gaming ordinance. The compact identi-
fied three possible sites for class III gaming. It identified the
precise location of two of the three sites. It identified the loca-
tion of the third site more generally as land “in Erie County,
at a location in the City of Buffalo to be determined by the
[Seneca] Nation.” Id. at 327. As part of the compact, the State
agreed to assist the Seneca Nation in acquiring parcels at two
sites, including the generally described site in the City of Buf-
falo, and to assist the Seneca Nation in achieving Indian land
status for the parcels. After the ordinance was approved by
the NIGC, the Seneca Nation purchased a specific parcel in
Buffalo. Plaintiffs, who objected to gaming on the Buffalo
parcel, contended that the Chairman of the NIGC erred “when
he approved the Ordinance without making an ‘Indian land’
determination with respect to property the [Seneca Nation]
intended to acquire for gaming purposes.” Id. at 322. The dis-
trict court agreed and vacated the NIGC’s approval of the
ordinance with respect to the Buffalo parcel, remanding to the
NIGC for a determination of the Indian lands status of the
parcel. Id. at 327.
 NORTH COUNTY v. SALAZAR 8917
[7] We are willing to assume without deciding that the dis-
trict court in Erie County was correct in concluding that the
NIGC had an obligation to determine the Indian lands status
of the Buffalo parcel when it approved the interstate compact
as a gaming ordinance for the Seneca Nation. But the Ordi-
nance in the case before us is quite different from the ordi-
nance at issue in Erie County.1 In the Nooksack Ordinance, no
potential gaming sites are identified, either specifically or
generally. The only part of the Ordinance that refers in any
way to Indian lands is § 56.04.030, which provides that the
Nooksack Gaming Commission “shall issue a separate license
to each place, facility, or location on Indian lands where Class
II gaming is conducted under this ordinance.” The letter from
the Chairman of the NIGC approving the Nooksack Ordi-
nance stated, “It is important to note that the gaming ordi-
nance is approved for gaming only on Indian lands as defined
in the IGRA.” But, like the Ordinance itself, the letter identi-
fied no potential gaming site, either specifically or generally.
The NIGC states in its brief to us that when a site-specific
ordinance is presented for approval it has an obligation to
make an Indian lands determination for the specifically identi-
fied site or sites. In that circumstance, it makes sense for the
NIGC to make an Indian lands determination for the site or
sites specifically identified in the proposed ordinance. How-
ever, the NIGC contends that it has no obligation to make an
Indian lands determination when approving a non-site-
specific ordinance.
[8] The NIGC contends that the text of IGRA does not
oblige a tribe to specify in a proposed ordinance, as a condi-
tion of the NIGC’s approval, all (or even any) of the sites at
which the tribe might conduct class II gaming. Nor can we
find such an obligation in the statutory text. Absent such an
obligation, it would be absurdly impractical to require the
1
We take judicial notice of the Ordinance and the letter from the NIGC
approving it. Both documents are available to the public.
8918 NORTH COUNTY v. SALAZAR
NIGC to make an Indian lands determination as part of its
approval of an ordinance. In effect, the NIGC would be
required to make an Indian lands determination for all lands
that are owned, or could be owned in the future, by the tribe
and on which the tribe might wish to conduct gaming.
The Alliance appears to recognize the impracticality of
requiring the NIGC to make an Indian lands determination as
part of its approval of a non-site-specific ordinance. It argues,
in effect, that any proposed ordinance submitted to the NIGC
must be site-specific. In support of this argument, the Alliance
points to one of the enumerated criteria that a proposed class
II gaming ordinance must satisfy. Section 2710(b)(2)(E) states
that a proposed ordinance must provide that “the construction
and maintenance of the gaming facility, and the operation of
that gaming is conducted in a manner which adequately pro-
tects the environment and the public health and safety.” 25
U.S.C. § 2710(b)(2)(E) (emphasis added). The Alliance
argues that the italicized language necessarily implies that a
proposed gaming ordinance must identify specific gaming
facilities. We are not convinced. This is the only provision in
IGRA that could be read to imply that gaming ordinances
must identify specific gaming sites. It is undisputed that in
practice most gaming ordinances approved by the NIGC do
not identify specific sites. Moreover, if “the gaming facility”
is meant to be read literally as the Alliance suggests, this
implies that each ordinance is limited to a single gaming facil-
ity. IGRA plainly contemplates otherwise. See id.
§ 2710(b)(1).
[9] We conclude that IGRA does not require a tribe to sub-
mit a site-specific proposed ordinance as a condition of
approval by the NIGC under § 2710(b). We also conclude that
the NIGC was not required in 1993, when it approved the
Nooksacks’ non-site-specific Ordinance, to make an Indian
lands determination for the parcel on which the Casino is
located.
NORTH COUNTY v. SALAZAR 8919
b. NIGC’s Failure to Act in 2006
[10] In the alternative, the Alliance claims that the NIGC
was required to make an Indian lands determination when the
Nooksacks licensed and began construction of the Casino in
2006. However, the Alliance points to nothing in the text of
IGRA, or in any implementing regulation in effect in 2006,
that required the NIGC to make an Indian lands determination
when a tribe licensed or began construction of a class II gam-
ing facility already authorized by a non-site-specific ordi-
nance. Nor have we been able to find anything in the text of
IGRA, or in the regulations in effect in 2006, so requiring. We
therefore conclude that NIGC was under no judicially
enforceable obligation to make an Indian lands determination
in 2006. See Confederated Tribes, 342 F.3d at 930.
3. 2008 Regulations
We recognize that IGRA, and its implementing regulations
in effect at the times relevant to this suit, operated somewhat
awkwardly. A tribe could obtain NIGC approval of a non-site-
specific ordinance authorizing class II gaming, and license
and build a class II gaming facility pursuant to that ordinance
on land that does not constitute Indian land under § 2703(4).
If neither the NIGC nor the State initiates a proceeding to
enjoin the construction or operation of the facility on the
ground that it is not located on Indian land, the tribe could end
up operating a class II gaming facility on non-Indian lands in
violation of IGRA. We do not say that this happened in this
case, for we do not know — and are not asked to decide —
whether the Casino is located on Indian lands. But we recog-
nize that because neither the NIGC nor the State has initiated
a proceeding seeking to stop the Nooksacks from constructing
and operating the Casino, there has not been, and perhaps
never will be, any authoritative Indian lands status determina-
tion.
In 2008, the NIGC promulgated regulations that amelio-
rated the awkwardness we have just described. The validity
8920 NORTH COUNTY v. SALAZAR
and proper interpretation of these new regulations is not
before us, and we mention them only to point out that the
NIGC seems to be aware of the practical difficulties presented
under the law and regulations as they existed at the times rele-
vant to this suit. Under newly promulgated 25 C.F.R.
§ 522.2(i), the NIGC is authorized to require that a tribe sub-
mit Indian lands information when submitting a proposed
ordinance for approval. That section provides that “[a] tribe
shall provide Indian lands . . . documentation that the Chair-
man [of the NIGC] may in his or her discretion request as
needed.” Further, newly promulgated 25 C.F.R. § 559, which
regulates the licensing of gaming facilities already approved
under an ordinance, now furthers the “purpose” of “ensur[ing]
that each place, facility, or location where class II or class III
gaming will occur is located on Indian lands eligible for gam-
ing[.]” Id. § 559.1(a). The regulation requires a tribe to “sub-
mit to the Chairman [of the NIGC] a notice that a facility
license is under consideration for issuance at least 120 days
before opening any new place, facility, or location on Indian
lands where class II or class III gaming will occur.” Id.
§ 559.2(a). That notice must contain specified information
about the location and status of the property on which the
facility is to be located, so that the NIGC may determine
whether the property is Indian lands eligible for gaming. See
id.
4. Dissent
The dissent states that we “disregard the most salient fact
of this case” — that the Casino “may or may not be on Indian
lands.” Diss. Op. at 8923. It goes on to state that under our
approach, “we may never know whether the casino is on
Indian lands, and the North County Community Alliance can-
not get judicial review to determine whether the casino is
properly on Indian lands or not.” Id. It is true that we may
never get an authoritative determination of the Indian land
status of the Casino. But it is not true that we disregard the
possibility that an Indian casino might be built on non-Indian
NORTH COUNTY v. SALAZAR 8921
land. We openly acknowledge that this is a possibility. Nor is
it true that under our approach there can never be an authori-
tative administrative or judicial determination of the Indian
lands status of a proposed or newly constructed casino.
[11] Both the NIGC and the States have authority to bring
proceedings against Indian gaming facilities located on non-
Indian land. Under 25 U.S.C. § 2713(b)(1) and (2), the NIGC
has the authority to order a closure of “an Indian game for
substantial violation of the provisions of this chapter.” Such
provisions include a requirement that gaming be conducted on
Indian lands, as the dissent agrees. Further, if Indian gaming
is conducted on non-Indian lands, it is subject to gaming regu-
lations of the State in which the gaming facility is located. If
a State believes that an Indian casino is located on non-Indian
lands, it may bring an appropriate proceeding in state court to
ensure compliance with state law. If the casino is located on
non-Indian land and its operation is forbidden under state law,
there is nothing in federal law to prevent a state court from
enjoining its operation.
[12] We recognize that enforcement or injunctive proceed-
ings by the NIGC or the State are not the same thing as pri-
vate causes of action brought by an objecting party such as
the Alliance. An objecting party may encourage the NIGC or
the State to bring such proceedings, but the decision actually
to bring a proceeding will be that of the NIGC or the State.
For reasons that do not appear in the record, neither the NIGC
nor the State has seen fit to bring such a proceeding in this
case.
[13] We also recognize that post-construction enforcement
or injunctive proceedings against Indian casinos by the NIGC
or a State are a less desirable alternative than pre-construction
determinations of Indian land status for such casinos. In
apparent recognition of this fact, the NIGC has recently pro-
mulgated the regulations described above. With the new regu-
lations on the books, it may well turn out that pre-construction
8922 NORTH COUNTY v. SALAZAR
determinations by the NIGC of Indian land status will become
the norm for Indian gaming facilities.
[14] The question before us is not whether IGRA and the
regulations that existed at the times relevant to this suit were
ideally suited to resolving, in a timely fashion, the Indian land
status for proposed tribal casinos. The question, rather, is
whether IGRA and the then-governing regulations required
the NIGC to make an Indian lands determination in 1993
when it approved the Nooksacks’ proposed non-site-specific
Ordinance, or in 2006 before the Nooksacks began construc-
tion of the Casino. For the reasons given above, we conclude
that the NIGC had no such obligation.
C. NEPA
[15] 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
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.
Conclusion
[16] We hold that the Alliance’s claim that the NIGC was
required under IGRA to make an Indian lands determination
for the parcel on which the Casino is located is not time-
barred. We further hold that the NIGC was not required in
1993 to make an Indian lands determination as part of its
approval of the Nooksacks’ Ordinance, or in 2006 when the
Nooksacks licensed and began construction of the Casino.
Finally, we hold that Appellees did not violate NEPA. We
therefore affirm the district court’s dismissal of the Alliance’s
complaint under Rule 12(b)(6).
AFFIRMED.
NORTH COUNTY v. SALAZAR 8923
GOULD, Circuit Judge, concurring in part, dissenting in part:
I concur in the majority’s opinion Parts I, II, III A, III B 1,
III B 2 A, and III C. But I dissent from the majority’s conclu-
sions in Part III B 2 B, III B 3, and III B 4 that the NIGC was
not required to make an “Indian lands” determination before
the casino construction began. I would reverse the district
court on this issue. I regret that the majority disregards the
most salient fact of this case: The Nooksack Tribe built a
casino that may or may not be on Indian lands. The majority
acknowledges that we do not know whether it is or not. Maj.
op. at 8919. Under the majority’s approach, we may never
know whether the casino is on Indian lands, and the North
County Community Alliance cannot get judicial review to
determine whether the casino is properly on Indian lands or
not. Because there has never been an Indian lands determina-
tion, it remains unclear if the IGRA applies or if local, state
and federal regulations apart from the IGRA regime apply.1
The majority leaves the casino in legal limbo, stating that
whether this casino is on Indian lands is a question that will
be litigated only if the NIGC or state authorities choose to
exercise their prosecutorial discretion. The majority concludes
that the IGRA has authorized this limbo, and that there is
nothing for our court to do. But in my view Congress could
not have intended the majority’s approach when it enacted the
IGRA. Consider this hypothetical set of facts that I hope may
be illuminating: If an Indian Tribe, after having received
approval on a non-site-specific ordinance, bought land in
downtown Seattle, under the majority’s approach the NIGC
would have no duty to stop the tribe from erecting a casino,
even if the land clearly did not fall within the statutory defini-
tion of Indian lands. See 25 U.S.C. § 2703(4). Thus as the
1
If the Nooksack Tribe’s casino is not on Indian lands, it is not autho-
rized by the IGRA and all local, state, and federal regulations apart from
the IGRA apply. See Facility License Standards, 73 Fed. Reg. 6019, 6022
(Feb. 1, 2008).
8924 NORTH COUNTY v. SALAZAR
majority sees IGRA, the NIGC would have no duty to act to
prevent construction of a clearly unauthorized casino. The
majority notes that the state authorities or the NIGC may act,
but they also may not. The citizens neighboring the casino site
have no way to ensure that the casino is not built on lands that
are not Indian lands. I conclude that Congress would never
have intended to leave the Indian lands determination to the
discretion of the NIGC and state authorities nor did Congress
intend to allow the determination to happen after the gaming
facility’s construction. That would be a deplorable way to
interpret the statute which could easily lead to grave financial
problems for an Indian tribe that had the temerity to build a
casino on lands that later turned out to not qualify as Indian
lands.
The majority’s reliance on the text of a single provision of
the statute, without consideration of the surrounding provi-
sions, leads it astray. After considering the IGRA as a whole,
I conclude that the majority’s interpretation of the statute is
inconsistent with the statute’s explicitly stated intent, its
stated purpose, and the necessary assumptions underlying
other provisions of the statute. See John Hancock Mut. Life
Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95
(1993) (answering a statutory construction question “not by a
single sentence or member of a sentence, but looking to the
provisions of the whole law, and to its object and policy”)
(internal quotation omitted); United Savs. Ass’n. of Tex. v.
Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
(1988) (“Statutory construction . . . is a holistic endeavor.”).
The majority’s holding that the NIGC has no duty to make
an Indian lands determination, which would permit Indian
tribe gaming to occur anywhere, is contrary to legislative
intent and stated purposes. See Reves v. Ernst & Young, 494
U.S. 56, 60-61 (1990) (interpreting the Securities Act in
accordance with its purpose). In enacting the IGRA, Congress
found there was an absence of “clear standards or regulations
for the conduct of gaming on Indian lands” and sought to
NORTH COUNTY v. SALAZAR 8925
remedy that absence. See Indian Gaming Regulatory Act,
Pub. L. No. 100-497 (codified at 25 U.S.C. § 2701(3))
(emphasis added). Congress also noted that “Indian tribes
have the exclusive right to regulate gaming activity on Indian
lands” if the activity is not prohibited by state or federal law.
Id. § 2701(5) (emphasis added). With these findings Congress
could not have intended to create a regime where the NIGC
did not have to make Indian lands determinations. Gaming
facilities built in the absence of such a determination will
thwart the Congressional intent to provide clear standards and
regulations of Indian gaming on Indian lands.
Congress also found that gaming is an important means of
generating tribal revenue, promoting tribal self-sufficiency
and economic development, and these are “principal goal[s]
of Federal Indian policy.” Id. § 2701(4). Allowing the Indian
tribe to construct a gaming facility before the tribe knows
whether the federal government will recognize it as within its
tribal jurisdiction frustrates the goal of promoting tribal eco-
nomic development and self-sufficiency. If it later became
clear that the gaming facility was not on Indian lands, the
IGRA would no longer apply, and the facility would be regu-
lated by “all state and local gambling laws and federal laws
apart from IGRA.” 73 Fed. Reg. at 6022. Thus the majority’s
holding that no Indian lands determination by the NIGC must
precede the construction of an Indian tribal casino is a disaster
waiting to happen. These state and local regulations, and fed-
eral regulations apart from IGRA, may be stringent or prohib-
itive, thus depriving the Indian tribe of their planned
economic revenue, and rendering its investment in the gaming
facility an economic liability. Such an event would hinder the
principal goals of federal Indian policy of promoting self-
sufficiency and economic development.
The legislative purposes outlined by Congress in enacting
the IGRA also underscore the NIGC’s implicit duty to make
an Indian lands determination. One of the statute’s stated pur-
poses is “to declare that the establishment of independent
8926 NORTH COUNTY v. SALAZAR
Federal regulatory authority for gaming on Indian lands, the
establishment of Federal standards for gaming on Indian lands
. . . are necessary to meet congressional concerns regarding
gaming and to protect such gaming as a means of generating
tribal revenue.” 25 U.S.C. § 2702(3). How could the NIGC,
the agency tasked with regulating and protecting gaming on
Indian lands effectuate this intent without determining
whether proposed gaming was on Indian lands and thus
within its jurisdiction? The NIGC, like all federal agencies,
does not have authority that expands beyond what Congress
has delegated to it. See La. Pub. Serv. Comm’n v. FCC, 476
U.S. 355, 374 (1986) (“[A]n agency . . . has no power to act
. . . unless and until Congress confers powers upon it.”). The
NIGC, therefore, cannot allow construction of a new gaming
facility before it determines that it has jurisdiction over that
specific site. Cf. Citizens Against Casino Gambling in Erie
County v. Kempthorne (“Erie County”), 471 F. Supp. 2d 295
(W.D.N.Y. 2007) (determining that the NIGC had to make an
Indian lands determination prior to approving a non-site-
specific ordinance). Stated simply, the NIGC has no statutory
authority to empower a regime under which tribes could build
casinos at any location, whether or not on Indian lands.
The court in Erie County held that the NIGC must satisfy
its jurisdiction before it approves a general non-site-specific
gaming ordinance. Id. I do not think that is necessary for a
non-site-specific gaming ordinance. The NIGC must have sat-
isfied its own jurisdiction before it regulates class II or class
III gaming under the statute, but the NIGC could choose to do
this after it approves a general ordinance and before the
Indian tribe issues a site-specific license. The NIGC is best
left to determine the appropriate procedural method to carry
out its duties. See Vt. Yankee Nuclear Power Corp. v. Natural
Res. Def. Council, 435 U.S. 519, 524 (1978) (emphasizing
that the formulation of procedures is left to the sound discre-
tion of the administrative agency). What is important is that
NORTH COUNTY v. SALAZAR 8927
the NIGC make its Indian lands determination before an
Indian tribe commences construction on a particular location.2
Finally, the majority’s interpretation of the statute is incon-
sistent with the policy and necessary assumptions of several
other provisions of the statute. See Timbers of Inwood Forest
Assocs., 484 U.S. at 371 (interpreting one section of the Bank-
ruptcy Code to be consistent with the policy of other provi-
sions of the Code); Gade v. Nat.’l Solid Wastes Mgmt. Ass’n,
505 U.S. 88, 99-102 (1992) (interpreting the Occupational
Safety and Health Act to be consistent with the assumptions
of other provisions). There can be no question that several
provisions of the statute apply exclusively to Indian lands and
that these sections presuppose that the NIGC will make an
Indian lands determination. The statute defines “Indian
lands,” 25 U.S.C. § 2703(4); it gives the Commission author-
ity to monitor class II gaming “conducted on Indian lands”
and to inspect class II gaming facilities “located on Indian
lands,” id. § 2706(b); it provides for the Chairman to approve
tribal ordinances concerning the conduct or regulation of class
I and class II gaming “on Indian lands,” id. § 2710(a); the
statute forbids that authorized gaming occur on lands acquired
by the Secretary in trust for the Indian tribe after the date of
the enactment of the Act, with some specific exceptions, id.
§ 2719; and the statute makes theft from gaming establish-
ments “on Indian lands” a federal crime, 18 U.S.C. § 1167-68.
In the face of these provisions, how can the NIGC not have
an obligation to determine whether a gaming site is Indian
lands? I conclude that it must make such a determination. All
of these statutory provisions presuppose that the NIGC will
determine whether the gambling site is on Indian lands. With-
2
The NIGC now recognizes that its job must include the ability to make
an Indian lands determination after approving a non-site-specific ordi-
nance. The agency has implemented regulations that require an Indian
tribe to submit Indian lands information to the NIGC at least 120 days
before the tribe issues a new license for a gaming facility, though the regu-
lations do not expressly require NIGC to make an Indian lands determina-
tion after getting that information. See 25 C.F.R. § 559.2.
8928 NORTH COUNTY v. SALAZAR
out an Indian lands determination, these provisions make no
sense and would be unworkable. Therefore, the policy and
necessary assumptions of the statute compel the conclusion
that the NIGC has a duty to make an Indian lands determina-
tion before allowing casino construction to go forward.
Looking at the IGRA as a whole, I conclude that Congress
conferred upon the NIGC a duty to make an Indian lands
determination before construction of a gaming facility can
commence. The NIGC, as the agency tasked with implement-
ing the IGRA, has the appropriate powers to decide the man-
ner in which it implements this duty, but it was a duty
nonetheless that had to be implemented before construction
began at the challenged site, an obligation that the NIGC has
shirked in this case. I respectfully dissent and would hold that
the NIGC has acted in an arbitrary and capricious manner by
not fulfilling that duty.