Kalispel Tribe of Indians v. Usdoi

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KALISPEL TRIBE OF INDIANS, a No. 19-35808
federally recognized Indian tribe,
Plaintiff-Appellant, D.C. No.
2:17-cv-00138-
and WFN
SPOKANE COUNTY, a municipal
corporation and political subdivision OPINION
of the state of Washington,
Plaintiff,
v.
U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, Secretary of the
Interior; BRYAN NEWLAND,
Principal Deputy Assistant Secretary
for Indian Affairs; BUREAU OF
INDIAN AFFAIRS; STANLEY SPEAKS,
Northwest Regional Office, Bureau
of Indian Affairs,
Defendants-Appellees,
SPOKANE TRIBE OF INDIANS,
Intervenor-Defendant-Appellee.
2 KALISPEL TRIBE OF INDIANS V. USDOI
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Argued and Submitted February 8, 2021
San Francisco, California
Filed June 1, 2021
Before: Marsha S. Berzon, Morgan Christen, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Christen
SUMMARY*
Tribal Gaming
The panel affirmed the district court’s summary
judgment in favor of the U.S. Department of the Interior
(“DOI”), the Bureau of Indian Affairs, federal officials, and
the Spokane Tribe of Indians, in an action brought by the
Kalispel Tribe of Indians, challenging the Secretary of DOI’s
decision that the Spokane Tribe of Indians’ proposed gaming
establishment on newly acquired off-reservation land would
not be detrimental to the surrounding community.
Kalispel has owned and operated the Northern Quest
Resort and Casino in Airway Heights, Washington since
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KALISPEL TRIBE OF INDIANS V. USDOI 3
2000. The land on which the casino sits is located within the
Spokane Tribe’s historic territory.
The panel rejected Kalispel’s primary argument that the
Indian Gaming Regulatory Act (“IGRA”) precluded the
Secretary of DOI from authorizing a new off-reservation
gaming operation where additional gaming would cause any
detriment to a nearby Indian tribe, regardless of the net
impact to the surrounding community. The panel held that
IGRA required the Secretary to weigh and consider the
various interests of those within the surrounding community
when deciding whether additional off-reservation gaming
would be detrimental to the surrounding community. A
showing that additional gaming may be detrimental to some
members of the surrounding community, including an Indian
tribe, does not dictate the outcome of the Secretary’s two-step
determination under IGRA for authorizing off-reservation
gaming.
The panel also rejected Kalispel’s argument that the
Secretary’s two-step determination was both ultra vires and
arbitrary and capricious because the Secretary did not
properly evaluate the detriment Kalispel would suffer if the
Spokane Tribe was allowed to move forward with its
competing casino. The panel agreed with Kalispel that lost
gaming revenue, discontinued or diminished per capita
expense payments (PCEPs) to its members, and a smaller
tribal governmental budget were real and cognizable
detriments, but the administrative record did not support
Kalispel’s contention that the Secretary failed to consider
these negative impacts to Kalispel in making the two-step
determination. The panel concluded that the Secretary had
the authority to issue a two-step determination under IGRA,
and the Secretary’s decision to issue a favorable decision here
4 KALISPEL TRIBE OF INDIANS V. USDOI
was neither arbitrary nor capricious under the Administrative
Procedure Act.
Kalispel contended that the Secretary previously
announced a policy that additional off-reservation gaming
would not be approved if a nearby Indian tribe could show
that additional gaming would be detrimental to it. The panel
held that Kalispel raised the issue for the first time on appeal,
and the panel would not reach the merits of the argument
because Kalispel did not preserve it.
The panel held that because Kalispel had not shown that
the Secretary failed to consider the claimed harms of the
project or to comply with the relevant statutes and
regulations, it had not shown that the Secretary violated the
federal government’s trust duty owed to Kalispel.
COUNSEL
Daniel I. S.J. Rey-Bear (argued), Rey-Bear McLaughlin LLP,
Spokane, Washington; Zachary L. Welcker, Kalispel Tribe of
Indians Legal Office, Airway Heights, Washington; for
Plaintiff-Appellant.
Tamara Rountree (argued), John L. Smeltzer, Joann Kintz,
and Devon L. McCune, Attorneys; Eric Grant, Deputy
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Andrew S. Caulum, Senior Attorney,
Office of the Solicitor, United States Department of the
Interior, Washington, D.C.; for Defendants-Appellees.
KALISPEL TRIBE OF INDIANS V. USDOI 5
Danielle Spinelli (argued), Kevin M. Lamb, and James D.
Barton, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C.; Scott Wheat, General Counsel, Office of
the Spokane Tribal Attorney, Wellpinit, Washington; for
Intervenor-Defendant-Appellee.
OPINION
CHRISTEN, Circuit Judge:
Kalispel Tribe of Indians, a federally recognized Indian
tribe, appeals the district court’s order granting summary
judgment in favor of the United States Department of the
Interior (the Secretary), the Bureau of Indian Affairs, and
federal officials. Kalispel challenged the Secretary’s decision
that the Spokane Tribe of Indians’ proposed gaming
establishment on newly acquired off-reservation land would
not be “detrimental to the surrounding community,”
25 U.S.C. § 2719(b)(1)(A). Kalispel challenged the
Secretary’s decision pursuant to the Administrative Procedure
Act, 5 U.S.C. §§ 701–706; the National Environmental Policy
Act, 42 U.S.C. §§ 4321–4347; and the Indian Gaming
Regulatory Act, 25 U.S.C. §§ 2701–2719. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the
district court’s judgment.
I
Kalispel has owned and operated the Northern Quest
Resort and Casino in Airway Heights, Washington since
2000. The land on which Northern Quest sits is located
within the Spokane Tribe’s historic territory. The Indian
Gaming Regulatory Act, 25 U.S.C. §§ 2719–2721 (IGRA),
6 KALISPEL TRIBE OF INDIANS V. USDOI
allows federally recognized tribes to apply for gaming
permits. IGRA also provides that, if the land where a gaming
establishment is to be built was acquired after the date IGRA
was enacted, the Secretary of the Interior must apply a two-
step test to determine whether additional off-reservation
gaming will be permitted. Id. §§ 2719(a), 2719(b)(1)(A).
Specifically, IGRA requires the Secretary to decide whether:
(1) the gaming establishment “would be in the best interest of
the Indian tribe”; and (2) the gaming establishment “would
not be detrimental to the surrounding community.” Id.
§ 2719(b)(1)(A).
In 2001, the Spokane Tribe began the administrative
process to request the Secretary to allow it to open a new
casino two miles away from Kalispel’s Northern Quest
casino. That year, the Department of the Interior took a 145-
acre parcel of land in Airway Heights into trust for the
Spokane Tribe. Citing economic struggles—including
declining sources of income and the costs of mitigating
uranium contamination in the Spokane Indian Reservation’s
groundwater—the Spokane Tribe argued that it needed
another casino because its members were living substantially
below the federal poverty line and suffering from high rates
of unemployment. The Spokane Tribe asserted that its
existing resources were not enough to cover its members’
basic needs.
The administrative process to consider the Spokane
Tribe’s request to open an off-reservation gaming
establishment took over ten years to complete. The Secretary
solicited two rounds of consultation letters from state, local,
and tribal officials, including Kalispel’s tribal government.
The Secretary also prepared a draft environmental impact
statement (EIS), in accordance with the National
KALISPEL TRIBE OF INDIANS V. USDOI 7
Environmental Policy Act (NEPA), 42 U.S.C.
§§ 4321–4370m-12, and circulated a draft EIS in January
2012 for public comment. The Secretary circulated a final
EIS in January 2013 for further public review and comment.
Kalispel objected at several points during the Spokane
Tribe’s application process, including once to the draft EIS
and once to the final EIS. Kalispel asserted that the revenue
it would lose to a competing gaming establishment would
cause Kalispel to be “unable to meet existing debt obligations
without foregoing most or all of the . . . governmental
operations, economic development efforts, and programs and
services that provide for the welfare of tribal members.” To
demonstrate and quantify the economic harm it projected,
Kalispel commissioned two analyses of the Spokane-area
gaming market. One report was prepared by PKF Consulting
USA, and another was authored by Nathan Associates Inc.
Both studies suggested the Spokane Tribe’s proposed gaming
establishment would have a significant impact on Northern
Quest’s financial performance, on the resulting revenue
available to fund Kalispel’s tribal government, and on
Kalispel’s ability to make per capita expense payments
(PCEPs) to its members. PCEPs are tribal government
payments to tribal members derived from discretionary use of
casino revenue, and Kalispel argued this source of income is
vitally important to cover its members’ basic needs, such as
housing.1 See 25 U.S.C. § 2710(b)(3).
1
Congress required gaming revenues to be used solely for statutorily
enumerated functions, including “to fund tribal government operations or
programs” and “to provide for the general welfare of the Indian tribe and
its members.” 25 U.S.C. § 2710(b)(2)(B). IGRA authorizes PCEPs only
if essential government services are funded first. 25 U.S.C. § 2710(b)(3)
(providing “[n]et revenues . . . may be used to make per capita payments
8 KALISPEL TRIBE OF INDIANS V. USDOI
Kalispel also commissioned a debt analysis that suggested
Kalispel would not be able to pay off the substantial
construction debts it incurred to build Northern Quest if new
competition reduced its gaming revenue.
In response, the Secretary commissioned four reports and
compiled an objective analysis of Kalispel’s financial
projections. These reports concluded that Kalispel’s
projections were “wholly unreliable” and based on data and
subsets that did not present an accurate baseline. The reports
further concluded that, although Kalispel would suffer an
initial loss of business if the new casino went forward,
Kalispel’s gaming revenue would resume growing after the
first year of the new casino’s operation. The reports also
projected that if the new gaming establishment were
permitted to open, Kalispel would be able to fulfill its loan
obligations, and that Kalispel had not shown that it would not
be able to operate its government or provide for its members.
The findings of the reports commissioned by the Secretary
were reflected in both the draft EIS and final EIS, giving
Kalispel an opportunity to respond to the studies and provide
further comments. The Spokane Tribe formally requested a
two-part IGRA determination in 2012.
On June 25, 2015, the Secretary issued a Secretarial
Determination that concluded the proposed gaming facility
would be in the Spokane Tribe’s best interest and that it
would not be detrimental to the surrounding community. In
reaching this decision, the Secretary considered all the
information gathered during the consultation and NEPA
process, as well as public comments and the studies the
. . . only if” the tribe has already prepared a plan to meet its government
essential services (emphasis added)).
KALISPEL TRIBE OF INDIANS V. USDOI 9
Secretary and others had commissioned. The Secretary
detailed the beneficial effects the new casino was expected to
yield for the Spokane Tribe, including jobs and revenue that
would enable the Spokane Tribe to address the hardships its
members currently suffered.
The Secretarial Determination addressed the impact the
new casino would have on the surrounding community and
projected over $300 million in economic output, the creation
of over 2,200 construction jobs, and nearly $250 million in
annual output that would support almost 2,900 long-term jobs
and create millions of dollars in tax revenue. Despite initial
competition from the new casino and temporary reduction in
Kalispel’s gaming revenues, the long-term projections for
Northern Quest were positive and “normative revenue
growth” was expected to resume after the first year of the
new casino’s operation.
The Secretarial Determination addressed the studies
Kalispel commissioned and the comments Kalispel
submitted. Even assuming Kalispel’s revenue projections
were accurate, the Secretary concluded that the projected
decrease to Kalispel’s gaming revenues “would not prohibit
the Kalispel tribal government from providing essential
services and facilities to its membership.” The Secretary
recognized that Kalispel might not be able to make PCEP
payments to tribal members, but reached a favorable two-step
determination, in part because the Secretary projected the
temporary reduction to Kalispel’s budget would be
16.7 percent, much less than the percentage Kalispel had
forecast. The Secretary predicted that the drop in Northern
Quest’s gaming revenue would diminish over time, and also
determined that members of the surrounding community
other than Kalispel would significantly benefit, including the
10 KALISPEL TRIBE OF INDIANS V. USDOI
City of Airway Heights and Spokane County. In the end, the
Secretary concluded that the competition from the Spokane
Tribe’s new casino would not create a detrimental impact on
the surrounding community.
In 2017, Kalispel sued the Secretary in federal district
court, alleging that the Secretary’s two-step determination
violated the Administrative Procedure Act (APA), IGRA, and
NEPA. The Spokane Tribe successfully intervened as a
defendant, and the parties agreed that the record provided all
the facts necessary for the district court to decide cross-
motions for summary judgment.
After briefing was completed, the court held oral
argument and ruled that the Secretary complied with IGRA,
and that the two-step determination was supported by
substantial evidence and was neither arbitrary nor capricious.
In so ruling, the district court considered the Secretary’s
assessment of the impact to the neighboring Fairchild Air
Force Base, the Secretary’s consultations with Spokane
County, and the final EIS. The court concluded that the
record supported the Secretary’s interpretation of the
differing expert opinions, and rejected Kalispel’s argument
that the Secretary breached the federal government’s trust
duty to Kalispel by issuing a decision that was favorable to
the Spokane Tribe. The court concluded that the Secretary’s
trust relationship extends to all tribes and requires the
government to “not favor one tribe over another.” The
district court granted the Secretary’s and the Spokane Tribe’s
motions for summary judgment, and denied Kalispel’s motion
for summary judgment. Kalispel timely appealed.
KALISPEL TRIBE OF INDIANS V. USDOI 11
II
We review an order granting summary judgment de novo,
“thus reviewing directly the agency’s action under the
[APA’s] arbitrary and capricious standard.” Alaska
Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir.
2015) (quoting Gila River Indian Cmty. v. United States,
729 F.3d 1139, 1144 (9th Cir. 2013), as amended (July 9,
2013)). The APA requires reviewing courts to “hold
unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” “in
excess of statutory jurisdiction,” or “without observance of
procedure required by law.” 5 U.S.C. § 706(2)(A), (C)–(D).
Under this standard, our review is “narrow” and we
cannot “substitute our judgment for that of [the agency].”
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019)
(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Reversal
is proper only “if the agency relied on factors Congress did
not intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an explanation
that runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Ecology Ctr. v.
Castaneda, 574 F.3d 652, 656 (9th Cir. 2009) (internal
quotation marks omitted) (quoting Lands Council v. McNair,
537 F.3d 981, 987 (9th Cir. 2008) (en banc)).
III
Congress enacted IGRA “to provide a statutory basis” for
gaming and to “promot[e] tribal economic development, self-
12 KALISPEL TRIBE OF INDIANS V. USDOI
sufficiency, and strong tribal governments.” 25 U.S.C.
§ 2702(1). To further these objectives, IGRA sets forth a
procedure for states and Indian tribes to negotiate compacts
that allow certain types of gaming on reservation land. Id.§ 2710(d)(1). Subject to limited exceptions, IGRA prohibits
gaming on off-reservation land acquired by the Secretary of
the Interior in trust for the benefit of a tribe after the date
IGRA was enacted. Id. § 2719(a). Relevant here, one
exception provides that gaming may be permitted on off-
reservation lands held in trust if “the Secretary, after
consultation with the Indian tribe and appropriate State and
local officials . . . determines that 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 . . . .” Id. § 2719(b)(1)(A).
The Secretary must conduct a two-part determination
before authorizing off-reservation gaming. Specifically, the
Secretary must consider: (1) whether the proposed gaming
establishment “would be in the best interest of the Indian
Tribe”; and (2) whether the proposed gaming establishment
“would . . . be detrimental to the surrounding community.”
Id. The Secretary must determine whether a gaming project
would be detrimental to the surrounding community on a
“case-by-case basis [considering] the information developed
in the application and consultation process.” Gaming on
Trust Lands Acquired After October 17, 1988, 73 Fed. Reg.
29354-01, 29373 (May 20, 2008). The factors the Secretary
must consider include: (1) “environmental impacts and plans
for mitigating adverse impacts”; (2) “[a]nticipated impacts on
the social structure, infrastructure, services, housing,
community character, and land use patterns of the
surrounding community”; (3) “[a]nticipated impacts on the
economic development, income, and employment of the
KALISPEL TRIBE OF INDIANS V. USDOI 13
surrounding community”; (4) “[a]nticipated costs of impacts
. . . and identification of sources of revenue to mitigate
them”; (5) the cost of treatment for any problem gambling
attributable to the new gaming establishment; (6) another
tribe’s historical connection to the land, if any; and (7) “any
other information” deemed relevant. 25 C.F.R. § 292.18.
IGRA’s multi-step process also requires the Secretary to
confer with relevant parties, including nearby Indian tribes
and public officials, share comments with the applicant tribe,
and request comments from the community. See id. § 292.19,
.20.
In addition to IGRA and its implementing regulations, the
Secretary must also comply with NEPA, which requires
federal agencies to prepare an EIS if their actions will
“significantly affect[] the quality of the human environment.”
42 U.S.C. § 4332(C). Among other things, an EIS must
identify “any adverse environmental effects which cannot be
avoided should the proposal be implemented” and
“alternatives to the proposed action.” Id. § 4332(C)(ii), (iii).2
A
In the district court, Kalispel did not challenge the
Secretary’s determination that an additional gaming operation
would be in the best interest of the Spokane Tribe. Rather,
the parties’ dispute, in the district court and on appeal, centers
on whether the Secretary properly determined the Spokane
Tribe’s proposed gaming establishment “would not be
detrimental to the surrounding community.” The parties offer
competing interpretations of “detrimental to the surrounding
2
In this appeal, Kalispel does not dispute that the Secretary complied
with NEPA’s various procedural requirements.
14 KALISPEL TRIBE OF INDIANS V. USDOI
community” as used in 25 U.S.C. § 2719(b)(1)(A).
Kalispel’s primary argument is that IGRA precludes the
Secretary from authorizing a new off-reservation gaming
operation where additional gaming would cause any
detriment to a nearby Indian tribe, regardless of the net
impact on the surrounding community. The Secretary and
Spokane argue that IGRA only precludes issuing a gaming
permit when the Secretary determines an off-reservation
gaming establishment would be detrimental to the
surrounding community as a whole, rather than detrimental
to any individual community member, including a nearby
Indian tribe.
We begin as we must, by looking to the text of IGRA.
See United States v. Flores, 729 F.3d 910, 914 (9th Cir.
2013). “[W]here the language [of a statute] is plain and
admits of no more than one meaning the duty of interpretation
does not arise, and the rules which are to aid doubtful
meanings need no discussion.” Campbell v. Allied Van Lines
Inc., 410 F.3d 618, 621 (9th Cir. 2005) (second alteration in
original) (quoting Carson Harbor Vill., Ltd. v. Unocal Corp.,
270 F.3d 863, 878 (9th Cir. 2001) (en banc)). We construe
the entire statute, examining “not only the specific provision
at issue, but also the structure of the statute as a whole,
including its object and policy.” Children’s Hosp. & Health
Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999).
The term “detrimental” is not defined by IGRA, and
therefore we interpret it according to its “ordinary,
contemporary, common meaning.” Wilderness Soc’y v. U.S.
Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003)
(en banc), amended on reh’g en banc in part, 360 F.3d 1374(9th Cir. 2004) (en banc) (quoting United States v. Smith,
155 F.3d 1051, 1057 (9th Cir. 1998)). “Detriment” is
KALISPEL TRIBE OF INDIANS V. USDOI 15
ordinarily defined as “[a]ny loss or harm suffered by a person
or property; harm or damage.” Black’s Law Dictionary 565
(11th ed. 2019). But IGRA does not provide that any
showing of detriment is sufficient to preclude the Secretary
from authorizing a new permit. Rather, the Secretary is
charged with determining whether additional gaming would
be a detriment “to the surrounding community.” 25 U.S.C.
§ 2719(b)(1)(A). Regulations promulgated by the Bureau of
Indian Affairs interpret the “surrounding community” to
include “local governments and nearby Indian tribes located
within a 25-mile radius of the site of the proposed gaming
establishment.” 25 C.F.R. § 292.2. It is uncontested that
Kalispel is a part of the surrounding community.
Kalispel urges us to hold that any detriment to Kalispel
necessarily constitutes detriment to the “surrounding
community” pursuant to 25 U.S.C. § 2719(b)(1)(A). We are
not persuaded. Kalispel’s reading overlooks that the
“surrounding community” includes more than one entity,
25 C.F.R. § 292.2, and detriment to Kalispel does not
necessarily mean net detriment to the surrounding community
as a whole. It would be unreasonable to interpret IGRA as
requiring a complete alignment of interests in the surrounding
community before a favorable two-part determination can be
issued. Indeed, such a reading would frustrate Congress’s
purpose for enacting IGRA: to “promot[e] tribal economic
development, self-sufficiency, and strong tribal
governments.” 25 U.S.C. § 2702(1). The Secretary’s
regulations make clear that threatened harm to Kalispel or to
any other member of the surrounding community must factor
into the Secretary’s calculation of whether additional off-
reservation gaming will be detrimental, but detriment to any
one member is not necessarily dispositive. See 25 C.F.R.
§ 292.2; see also § 292.18 (outlining factors applicant must
16 KALISPEL TRIBE OF INDIANS V. USDOI
present, and the Secretary must consider, to assess the
detriment to the surrounding community). We hold that
IGRA requires the Secretary to weigh and consider the
various interests of those within the surrounding community
when deciding whether additional off-reservation gaming
would be detrimental to the surrounding community. A
showing that additional gaming may be detrimental to some
members of the surrounding community, including an Indian
tribe, does not dictate the outcome of the Secretary’s two-step
determination.
We are not alone in reaching this conclusion. The D.C.
Circuit recently interpreted § 2719(b)(1)(A) in Stand Up for
California! v. U.S. Dep’t of Interior, 879 F.3d 1177 (D.C. Cir.
2018). There, the Picayune Tribe sought injunctive relief to
prevent a two-step determination from authorizing another
gaming establishment that Picayune anticipated would be
harmful to its own gaming operation. Id. at 1179, 1186.
Similar to Kalispel’s position here, Picayune interpreted
IGRA’s requirement that additional off-reservation gaming
“would not be detrimental to the surrounding community” to
mean that any resulting detriment to any member of the
community precluded the Secretary from making a favorable
two-step determination. Id. at 1187.
The D.C. Circuit observed that because all new
commercial developments are bound to entail some costs to
the surrounding community, including nearby businesses,
reading IGRA to preclude any new casino that would cause
any detriment—in other words, requiring “no unmitigated
negative impacts whatsoever”—made no sense if new casinos
were ever to be allowed. Id. The D.C. Circuit recognized
that Congress specifically provided for the authorization of
additional off-reservation gaming operations on newly
KALISPEL TRIBE OF INDIANS V. USDOI 17
acquired land and the court observed that “nothing in IGRA
. . . forecloses the Department, when making a non-detriment
finding, from considering a casino’s community benefits,
even if those benefits do not directly mitigate a specific cost
imposed by the casino.” Id. Because the regulations
“expressly allow [the Secretary] to consider ‘any . . .
information that may provide a basis for a . . . determination
whether the proposed gaming establishment would or would
not be detrimental to the surrounding community,’” the court
concluded the regulations support the Secretary’s
interpretation that IGRA permits the Secretary to balance
benefits to parts of the surrounding community against the
detriments to others. Id. (alterations in original) (quoting
25 C.F.R. § 292.18(g); see also 25 C.F.R. § 292.21(a)
(cataloguing the information the Department is to consider).
We agree with the D.C. Circuit and reject Kalispel’s
argument that any detriment to Kalispel precluded the
Secretary from issuing a favorable two-part determination.3
B
Kalispel also argues that the Secretary’s two-step
determination was both ultra vires and arbitrary and
capricious because the Secretary did not properly evaluate the
detriment Kalispel would suffer if the Spokane Tribe was
allowed to move forward with its competing casino. We
3
We do not foreclose the possibility that the Secretary might
determine a gaming establishment would present a net detriment to the
surrounding community if a single entity faced sufficiently severe harm.
In circumstances not presented here, the resulting hardship to one member
of the surrounding community could justify an unfavorable two-step
determination. Here, though it was forecast that Kalispel would
experience a short term drop in gaming revenue, the Secretary’s two-part
determination is amply supported by the record.
18 KALISPEL TRIBE OF INDIANS V. USDOI
conclude the Secretary had the authority to issue a two-step
determination, and the Secretary’s decision to issue a
favorable decision here was neither arbitrary nor capricious.
The APA requires reviewing courts to set aside agency
actions that are “in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right.” 5 U.S.C.
§ 706(2)(C). The Supreme Court explained “[an official]
may be said to act ultra vires only when he acts ‘without any
authority whatever.’” Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101 n.11 (1984) (quoting Fla. Dep’t
of State v. Treasure Salvors, Inc., 458 U.S. 670, 697 (1982)).
Thus, “an ultra vires claim rests on ‘the officer’s lack of
delegated power. A claim of error in the exercise of that
power is . . . not sufficient.’” Id. (quoting Larson v.
Domestic & Foreign Com. Corp., 337 U.S. 682, 690 (1949)).4
Congress expressly authorized the Secretary to issue two-
part determinations pursuant to § 2719(b)(1)(A). Though
Kalispel briefly asserts the Secretary’s two-part determination
was ultra vires, the substance of its argument is that the
Secretary improperly exercised the authority Congress
delegated by failing to consider the factors required by IGRA.
Accordingly, this argument is most properly considered not
as an ultra vires challenge but as a challenge to the
Secretary’s exercise of authority as arbitrary and capricious
under the APA.
4
Kalispel’s argument that the Secretary’s determination was ultra
vires was not raised in the district court. We consider it here, briefly,
because Kalispel’s ultra vires argument on appeal is intertwined with its
argument that the Secretary’s two-part determination was arbitrary and
capricious.
KALISPEL TRIBE OF INDIANS V. USDOI 19
“Agency action is arbitrary and capricious when the
agency relies on factors Congress has not intended it to
consider, fails to consider an important aspect of the problem,
or offers an explanation that runs counter to the evidence
before the agency.” Managed Pharmacy Care v. Sebelius,
716 F.3d 1235, 1250 (9th Cir. 2013) (citing State Farm,
463 U.S. at 43). “[W]e are to conduct a ‘particularly
deferential review’ of an ‘agency’s predictive judgments
about areas that are within the agency’s field of discretion and
expertise . . . as long as they are reasonable.’” Lands Council
v. McNair, 537 F.3d 981, 993 (9th Cir. 2008), overruled in
part on other grounds by Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7 (2008) (ellipsis in original) (quoting
EarthLink, Inc. v. FCC, 462 F.3d 1, 12 (D.C. Cir. 2006)).
Where the allegation is that the agency’s decision was
arbitrary and capricious, we review the record carefully to
ensure that the agency conducted a reasonable evaluation of
the relevant factors and reasonably interpreted the governing
statute. See id.Kalispel contends that the Secretary failed to consider or
underestimated the economic detriment Kalispel would suffer
if the Spokane Tribe opened a competing gaming
establishment. The Secretary’s final determination was based
on the entire administrative record, including the Spokane
Tribe’s application and supporting documents, the final EIS,
the consultation process, and submissions from the Kalispel
Tribe and other local governmental entities. The Secretary
was not persuaded by Kalispel’s estimate of its future revenue
loss, but the studies commissioned by the Secretary also
concluded that Kalispel would sustain a loss in gaming
revenue if the Spokane Tribe opened a gaming establishment
within a few miles of Northern Quest. The Secretary
projected that, in the short term, Kalispel’s 2020 revenue
20 KALISPEL TRIBE OF INDIANS V. USDOI
would be 33 percent lower and the Secretary acknowledged
that Kalispel’s reduced revenue might force Kalispel to
reduce or eliminate PCEPs to its members. But the Secretary
further estimated that, assuming Kalispel eliminated PCEPs
altogether, the reduction in Kalispel’s remaining 2020
governmental budget would be 16.7 percent, a much smaller
reduction than Kalispel had forecast. Further, the studies
indicated that these economic impacts would dissipate over
time due to market growth. Relying on the studies’
projections, the Secretary concluded that the Spokane Tribe’s
proposed casino would not be detrimental to the surrounding
community within the meaning of § 2719(b)(1)(A).
Despite the Secretary’s express acknowledgment of the
likely economic harm Kalispel faced, Kalispel contends the
Secretary “implicitly dismissed that detrimental impact as not
cognizable.” In support of this argument, Kalispel cites the
Secretary’s assertions that Kalispel’s governmental budget
was “not expected to be considerably reduced when
compared to existing conditions,” that the reductions “would
not prohibit the Kalispel tribal government from providing
essential services and facilities to its membership,” and that
Kalispel “would have 14 times more revenue available per
tribal member for the provision of tribal government services
and programs as is currently available to the Spokane Tribe.”
These statements do not show that the Secretary failed to
consider the economic consequences to Kalispel when the
Secretary made the two-step determination. IGRA’s
implementing regulations required the Secretary to undertake
a complex, multi-factor analysis to assess the potential harms
and benefits of an off-reservation gaming operation, and
Congress mandated that the Secretary make that assessment
in light of the impacts to the surrounding community as a
KALISPEL TRIBE OF INDIANS V. USDOI 21
whole. See 25 U.S.C. § 2719(b)(1)(A); 25 C.F.R.
§ 292.21(a). As demonstrated by the Secretary’s lengthy and
detailed analysis, the task of weighing the various
environmental, social, and economic impacts of a new
gaming operation is daunting, but Congress delegated it to the
Secretary.5 The statements Kalispel selects from the
Secretarial Determination merely contextualize what the loss
in gaming revenue would mean for Kalispel and its members
in practical terms, as part of the Secretary’s larger analysis.
Kalispel also argues that the Secretary violated the APA
by improperly comparing the detriments to Kalispel against
the benefits to the Spokane Tribe. The administrative record
does not support this contention. Instead, the Secretarial
Determination concluded that allowing the Spokane Tribe to
host off-reservation gaming would “provide economic growth
that [would] have a positive impact on the surrounding
community by creating much-needed job opportunities,” and
“stimulate the existing local tourist industry and benefit the
local businesses and economy by creating an influx of
non-resident consumers.” As explained, the record contained
projections of over $300 million in economic output and over
2,200 jobs in construction, and almost $250 million in annual
output, supporting approximately 2,900 long-term jobs and
creating millions of dollars in tax revenue. The Secretary’s
determination clearly acknowledged that competition would
harm Kalispel’s gaming revenue in the first year of the new
casino’s operation. Nevertheless, the Secretary did not
violate the APA by considering the significant economic
benefits to the broader community when determining that the
5
The Secretarial Determination was 67 pages long and incorporated
the findings of the final EIS by reference.
22 KALISPEL TRIBE OF INDIANS V. USDOI
Spokane Tribe’s off-reservation gaming operation would not
be detrimental.
Kalispel also contends that the Secretary’s decision was
arbitrary and capricious because it was based on implausible
explanations that were inconsistent with the record. In
support of this argument, Kalispel points to two studies it
commissioned that projected Kalispel would incur extended
and significant monetary losses. The degree of deference
afforded to the Secretary defeats this argument. The
Secretary considered Kalispel’s studies, commissioned
studies in response, and concluded Kalispel’s lost gaming
revenue would not be as high as Kalispel projected and would
dissipate over time. The Secretary also found that significant
benefits would inure to the Spokane Tribe and other members
of the surrounding community. Our review is limited to
whether the agency’s predictive judgment is reasonable given
the administrative record. See Cachil Dehe Band of Wintun
Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 602
(9th Cir. 2018) (observing “the arbitrary and capricious
standard is particularly deferential in matters implicating
predictive judgments” (alteration and internal quotation
marks omitted) (quoting Stand Up for California!, 879 F.3d
at 1188)). We see no basis to conclude that the Secretary’s
reliance on the responsive studies or projections concerning
the impacts to the surrounding community violated the APA.
We agree with Kalispel that lost gaming revenue,
discontinued or diminished PCEPs, and a smaller tribal
governmental budget are real and cognizable detriments. But
the administrative record does not support Kalispel’s
contention that the Secretary failed to consider these negative
impacts to Kalispel in making the two-step determination.
The district court correctly ruled that Kalispel did not meet its
KALISPEL TRIBE OF INDIANS V. USDOI 23
burden of showing that the Secretarial Determination was
arbitrary and capricious.
C
Kalispel also contends that the Secretary previously
announced a policy that additional off-reservation gaming
would not be approved if a nearby Indian tribe could show
that additional gaming would be detrimental to it. This
argument was not advanced in the district court. Absent
circumstances not present here, we do not consider arguments
raised for the first time on appeal. See Raich v. Gonzales,
500 F.3d 850, 868 (9th Cir. 2007). Kalispel argues that it
preserved this argument in one paragraph of its motion for
summary judgment. We read the record differently.
Kalispel’s motion observed that the Secretary stated on two
occasions that it would not “approve a tribal application for
off-reservation gaming where a nearby Indian tribe
demonstrates that it is likely to suffer a detrimental impact as
a result.” But Kalispel did not argue that these prior
statements amounted to binding agency policy, as it does on
appeal, nor did it suggest in the district court that the
Secretary’s decision violated the APA by departing from
earlier statements. By presenting this argument for the first
time on appeal, Kalispel deprives its opponents of the
opportunity to explain the context in which these statements
appeared, and we are deprived of the benefit of the district
court’s consideration of this issue. We do not reach the
merits of this argument because Kalispel did not preserve it.
24 KALISPEL TRIBE OF INDIANS V. USDOI
D
Kalispel’s final argument is that the Secretary breached
the federal government’s trust duty by not affording
Kalispel’s interests special weight when it made the two-step
determination. The United States owes a trust duty to Indian
nations, see Marceau v. Blackfeet Housing Auth., 540 F.3d
916, 921 (9th Cir. 2008), but this duty is complicated when
the federal government deals with two tribes that have
competing interests. In Nance v. EPA, 645 F.2d 701 (9th Cir.
1981), we upheld agency action that was anticipated to
benefit one tribe, despite another tribe’s objections and claims
of harm, see id. at 710–12. We observed that the EPA
fulfilled its fiduciary obligations by consulting the interested
tribe, allowing it a full opportunity to participate in the public
hearing process, and “adequately address[ing]” the tribe’s
interests in its decision. Id.; see Cohen’s Handbook on
Federal Indian Law, § 5.05[3][c] (“[O]nce the agency has
considered the impact of its decision on the tribe’s interests,
there is no breach of trust”).
Here, the Secretary undertook a lengthy, reasoned
analysis that considered Kalispel’s interests and the Spokane
Tribe’s interests. The Secretary acknowledged the detriment
Kalispel faced but plainly concluded that the benefits to other
members of the surrounding community warranted a
favorable two-step determination. Because Kalispel has not
shown that the Secretary failed to consider its claimed harms
or to comply with the relevant statutes and regulations, it has
not shown that the Secretary violated the trust duty owed to
Kalispel. See Nance, 645 F.2d at 711–12 (holding that where
an agency owed “conflicting fiduciary responsibilities” to two
tribes, it satisfied its duty by adequately addressing the tribes’
respective interests in its findings); see also Gros Ventre
KALISPEL TRIBE OF INDIANS V. USDOI 25
Tribe v. United States, 469 F.3d 801, 811 (9th Cir. 2006)
(holding that, where tribe sought to impose a duty not
required by any statute, the agency fulfilled its duty by
complying with general regulations).
The judgment of the district court is AFFIRMED.