Cachil Dehe Band of Wintun v. Ryan Zinke

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CACHIL DEHE BAND OF WINTUN No. 17-15245
INDIANS OF THE COLUSA INDIAN
COMMUNITY, a federally recognized D.C. No.
Indian Tribe, 2:12-cv-03021-
Plaintiff-Appellant, TLN-AC
v.
RYAN K. ZINKE, Secretary of the
Interior; KEVIN K. WASHBURN,
Esquire, Assistant Secretary of the
Interior - Indian Affairs; MICHAEL S.
BLACK, Director, United States
Bureau of Indian Affairs; AMY
DUTSCHKE, Director, Pacific Region,
Bureau of Indian Affairs; ESTOM
YUMEKA MAIDU TRIBE OF THE
ENTERPRISE RANCHERIA,
CALIFORNIA; BUREAU OF INDIAN
AFFAIRS; DEPARTMENT OF THE
INTERIOR,
Defendants-Appellees.
2 CACHIL DEHE BAND V. ZINKE
CITIZENS FOR A BETTER WAY; No. 17-15533
STAND UP FOR CALIFORNIA!; GRASS
VALLEY NEIGHBORS; WILLIAM F. D.C. No.
CONNELLY; JAMES M. GALLAGHER; 2:12-cv-03021-
ANDY VASQUEZ; DAN LOGUE; TLN-AC
ROBERTO’S RESTAURANT; ROBERT
EDWARDS,
Plaintiffs-Appellants, OPINION
v.
RYAN ZINKE, Secretary of the
Interior; KEVIN K. WASHBURN,
Esquire, Assistant Secretary of the
Interior - Indian Affairs; MICHAEL S.
BLACK, Director, United States
Bureau of Indian Affairs; AMY
DUTSCHKE, Director, Pacific Region,
Bureau of Indian Affairs; ESTOM
YUMEKA MAIDU TRIBE OF THE
ENTERPRISE RANCHERIA,
CALIFORNIA; BUREAU OF INDIAN
AFFAIRS; DEPARTMENT OF THE
INTERIOR,
Defendants-Appellees.
CACHIL DEHE BAND V. ZINKE 3
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted February 12, 2018
San Francisco, California
Filed May 2, 2018
Before: Michael Daly Hawkins, Carlos T. Bea,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Bea
4 CACHIL DEHE BAND V. ZINKE
SUMMARY *
Tribal Affairs
The panel affirmed the district court’s summary
judgment in favor of the Estom Yumeka Maidu Tribe of the
Enterprise Rancheria in an action seeking to enjoin the U.S.
Department of the Interior’s Bureau of Indian Affairs
(“BIA”) from taking a parcel of land into trust for Enterprise
so that Enterprise could build a casino and hotel complex.
Following the BIA’s decision to make the parcel
acquisition, a nearby Indian Tribe with a casino of its own
(“Colusa”), and various citizens’ groups and individuals
opposed to the construction of the Enterprise Casino, alleged
errors in the regulatory process and sued to enjoin the
acquisition.
The panel held that the Department of the Interior had
the statutory authority under the Indian Reorganization Act
to take land into trust for Enterprise. The panel further held
that, pursuant to the Act’s implementing regulations in 25
C.F.R. § 151.11(a), the Secretary properly considered
Enterprise’s “need” for the land. The panel also held that
Interior’s incorrect legal description of the parcel in the
Federal Register was a trivial error that was quickly
corrected, and did not render the final Record of Decision
arbitrary and capricious.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CACHIL DEHE BAND V. ZINKE 5
The panel rejected plaintiffs’ challenges based on the
Indian Gaming Regulatory Act. The panel held that the BIA
properly consulted with Colusa. The panel rejected Colusa’s
facial and as-applied challenges to the implementing
regulation, 25 C.F.R. § 292.3, which mandated consultation
with communities within twenty-five miles of the proposed
trust acquisition, and concluded that Colusa was given an
opportunity to consult. The panel also held that the
Secretary’s finding that the proposed casino project would
not be “detrimental to the surrounding community,” 25
U.S.C. § 2719(b)(1)(A), was not arbitrary and capricious.
The panel held that the district court did not err in striking a
declaration, submitted by Colusa as extra-record evidence.
In a matter of first impression, the panel found that it was
within the expertise of the agency to determine the
likelihood required mitigation measures will be followed,
and the BIA’s determination that Enterprise would fulfill its
required mitigation measures was not arbitrary or capricious.
The panel rejected plaintiffs’ challenges based on the
National Environmental Policy Act. The panel held that the
Final Environmental Impact Statement’s “purpose and
need” statement was not “artificially limited.” The panel
also held that Colusa waived any argument that Interior’s
failure to consider its proposed alternatives represented a
NEPA violation. The panel further held that Colusa did not
establish that the Final Environmental Impact Statement
relied on inadequate or flawed data. The panel also held that
the Statement took a “hard look” at the environmental
impacts of the proposed action. Finally, the panel held that
Colusa did not present any evidence that the BIA failed to
engage in adequate independent oversight over the
preparation of the Draft Environmental Impact Statement or
the Final Environmental Impact Statement, or that the
6 CACHIL DEHE BAND V. ZINKE
consulting services Analytical Environmental Services may
perform was in any way significant.
COUNSEL
George Forman (argued), Jay B. Shapiro, and Margaret C.
Rosenfeld, Forman & Associates, San Rafael, California, for
Plaintiff-Appellant Cachil Dehe Band of Wintun Indians of
the Colusa Indian Community.
Benjamin S. Sharp (argued) and Jennifer A. MacLean,
Perkins Coie LLP Washington, D.C.; Brian Daluiso, Perkins
Coie LLP, San Diego, California; for Plaintiffs-Appellants
Citizens for a Better Way, Stand Up for California!, Grass
Valley Neighbors, William F. Connelly, James M.
Gallagher, Andy Vasquez, Dan Logue, Roberto’s
Restaurant, and Robert Edwards.
Mary Gabrielle Sprague (argued) and John L. Smeltzer,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jeffrey H. Wood, Acting Assistant Attorney General;
Appellate Section, Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C.; for Federal Defendants-Appellees.
Matthew G. Adams (argued) and Jessica L. Duggan,
Dentons US LLP, San Francisco, California; Michael S.
Pfeffer and John A. Maier, Maier Pfeffer Kim Geary &
Cohen LLP, Oakland, California; for Defendants-Appellees
Estom Yumeka Maidu Tribe of the Enterprise Rancheria,
California.
CACHIL DEHE BAND V. ZINKE 7
Frank R. Lawrence and Zehava Zevit, Law Office of Frank
Lawrence, Grass Valley, California, for Amicus Curiae
Mooretown Rancheria of Maidu Indians of California.
OPINION
BEA, Circuit Judge:
On July 15, 2003, the Estom Yumeka Maidu Tribe of the
Enterprise Rancheria (“Enterprise”) asked the Bureau of
Indian Affairs (the “BIA”), a part of the United States
Department of the Interior, to take a parcel of land into trust
for them so that Enterprise could build a casino and hotel
complex. In November 2012, after almost ten years of
studies, expert reports, meetings, and other regulatory
processing, the BIA agreed to the acquisition. Immediately
following the BIA’s decision, several entities, including the
Cachil Dehe Band of Wintun Indians of the Colusa Indian
Community (“Colusa”), a nearby Indian Tribe with a casino
of its own, and various citizens’ groups and individuals
opposed to the construction of the Enterprise Casino
(together, “Citizens”), 1 alleged a host of errors in the lengthy
regulatory process and sued to enjoin the trust acquisition.
The district court granted summary judgment in favor of
Enterprise. For the reasons that follow, we affirm.
1
This group of concerned citizens includes the groups Citizens for
a Better Way, Stand Up For California!, and Grass Valley Neighbors;
individuals William F. Connelly, James M. Gallagher, Andy Vasquez,
Dan Logue, Robert Edwards; and the business Roberto’s Restaurant.
8 CACHIL DEHE BAND V. ZINKE
I.
In 1915, a representative of the United States Indian
Service visited Enterprise, California, and completed a
census of fifty-one Indians “in and near Enterprise in Butte
County, California.” That same year, the United States
purchased two forty-acre parcels of land in trust for Indians
living in Enterprise: (1) Enterprise 1, located approximately
ten miles northeast of Oroville, and (2) Enterprise 2, located
closer to Oroville (together, the “Enterprise Rancheria”).
The United States continues to hold Enterprise 1 in trust;
however, in 1965, the State of California purchased
Enterprise 2 and flooded it to allow the construction of the
Oroville dam. The parties agree that since 1915 Indians have
been living on the Enterprise Rancheria, and the Enterprise
Rancheria is an Indian Reservation.
In 1934, Congress enacted the Indian Reorganization
Act, 25 U.S.C. § 5108 et seq., (the “IRA”). Section 18 of the
IRA states that the Act “shall not apply to any reservation
wherein a majority of the adult Indians, voting at a special
election duly called by the Secretary of the Interior, shall
vote against its application.” Id. § 5125. In due course, so-
called Section 18 elections were held on Indian reservations
around the country, including on Enterprise Rancheria on
June 16, 1935. 2
2
Incidentally, the Indians in Enterprise voted against the application
of the IRA. In 1983, Congress enacted the Indian Land Consolidation
Act, Pub. L. No. 97-459, 96 Stat. 2517 (1983), which amended the IRA
to provide that Section 5 of the IRA—the Section which allows for the
taking of land into trust for Indians’ benefit—would apply
notwithstanding a tribe’s rejection of the IRA pursuant to a Section 18
election.
CACHIL DEHE BAND V. ZINKE 9
In 1979, the Department of the Interior began to publish
lists of federally recognized tribes in the Federal Register.
The “Enterprise Rancheria of Maidu Indians” has appeared
on each list from 1979 to the present.
On August 13, 2002, Enterprise submitted a “fee-to-
trust” application to the Secretary of the Interior pursuant to
the IRA, 25 U.S.C. § 5108, which authorizes the Secretary
to take lands in trust for the benefit of “the Indian tribe or
individual Indian for which the land is acquired.” The
application asked the Secretary to accept into trust forty
acres of land owned by Yuba County Entertainment, L.L.C.,
(the “Yuba Site”), located in Yuba County, California, so
Enterprise could develop an off-reservation casino and hotel.
There are a number of regulatory hurdles which must be
vaulted to take land into trust for off-reservation gaming.
While the IRA allows for the Secretary to take land into trust
for the benefit of Indians, the Indian Gaming Regulatory
Act, 25 U.S.C. § 2701 et seq. (“IGRA”) generally prohibits
gaming on such lands taken into trust after October 17, 1988.
However, gaming is permitted if the Secretary determines,
after consulting with the “Indian tribe and appropriate State
and local officials, including officials of other nearby Indian
tribes,” that the gaming would “not be detrimental to the
surrounding community,” and if the Governor of the relevant
state agrees with the Secretary’s determination. 25 U.S.C.
§ 2719(b)(1)(A). This is referred to as the Secretarial two-
part determination.
In addition to satisfying IGRA, more regulatory hurdles
remain. The Department of the Interior and the applicant
Tribe must satisfy the National Environmental Policy Act,
42 U.S.C. § 4321 et seq, (“NEPA”). NEPA requires that all
federal agencies considering actions “significantly affecting
the quality of the human environment” prepare a “detailed
10 CACHIL DEHE BAND V. ZINKE
statement” describing the “environmental impact of the
proposed action,” “any adverse environmental effects which
cannot be avoided should the proposal be implemented,”
“alternatives to the proposed action,” “the relationship
between local short-term uses of man’s environment and the
maintenance and enhancement of long-term productivity,”
and “any irreversible and irretrievable commitments of
resources which would be involved in the proposed action
should it be implemented.” Id. § 4332(C). The “detailed
statement” is referred to as an Environmental Impact
Statement (an “EIS”).
These various statutory and regulatory requirements
created a lengthy administrative process.
First, on August 13, 2002, Enterprise submitted its “fee-
to-trust” application to the Secretary of the Interior. The
application requested that Interior take title to the Yuba Site
in trust so that the Tribe could build a 207,760 square foot
casino and accompanying hotel. The application included a
December 2001 document entitled “Gaming and Hotel
Market Assessment: Marysville, California,” prepared by
The Innovation Group. The assessment evaluated ten market
areas in northern California, analyzed the characteristics of
other existing tribal casinos, and estimated revenues and
expenses for a casino/hotel for 2004–2008.
Second, Enterprise retained a consultant, Analytical
Environmental Services (“AES”), to submit a draft
Environmental Assessment (an “EA”). 3 The draft EA was
3
Pursuant to 40 C.F.R. § 1508.9, an EA is “a concise public
document for which a Federal agency is responsible that serves to . . .
[b]riefly provide sufficient evidence and analysis for determining
whether to prepare an [EIS].”
CACHIL DEHE BAND V. ZINKE 11
submitted to the BIA on July 15, 2003. The BIA reviewed
the draft EA and suggested numerous revisions. In May
2004, the EA was finalized. The BIA made the EA available
for public review and comment by publishing a Notice of
Availability in a Marysville newspaper and mailing the EA
to local, State, and tribal governments. On July 7, 2004, the
BIA sent a copy of the EA to Colusa. Although NEPA and
administrative regulations provide for the receipt of
comments as to the EA, Colusa did not comment on it.
Third, after receipt of comments by others than Colusa
on the EA, the BIA decided to prepare an EIS to analyze
further the possible environmental effects of the proposed
fee-to-trust acquisition. Toward that end, the BIA entered
into a “Professional Services Third-Party Agreement” with
AES on January 6, 2005. The Agreement states that the BIA
would “provide AES the technical direction, review, and
quality control for the preparation of the Scoping Report,
EIS, technical studies, and other NEPA-related documents”
and that AES would be the “project manager on behalf of
[the] BIA.” Enterprise would pay AES’s fees.
Fourth, after having hired AES, the BIA engaged in a
“scoping” process. “Scoping is a process that continues
throughout the planning and early stages of preparation of an
[EIS] . . . to engage State, local and tribal governments and
the public in the early identification of concerns, potential
impacts, relevant effects of past actions and possible
alternative actions.” 43 C.F.R. § 46.235. A “scoping”
meeting was held on June 9, 2005 in Marysville. The BIA
also published a Notice of Intent to Prepare an EIS in the
Federal Register on May 20, 2005, and in Marysville and
Sacramento newspapers shortly thereafter. Comments to the
scoping process were submitted in writing and at the public
meeting. Colusa did not comment.
12 CACHIL DEHE BAND V. ZINKE
Fifth, having engaged in the scoping process, AES
prepared a draft EIS (“DEIS”), which it completed under the
BIA’s supervision in February 2008. The DEIS analyzed
five potential alternatives to the regulatory action:
A) Enterprise Rancheria’s proposed facility on the Yuba
Site; B) a smaller casino without a hotel on the Yuba Site;
C) a water park on the Yuba Site; D) a small casino on
another site in Butte County; and E) no action. The DEIS
recognized that while the proposed facility on the Yuba Site
would benefit Enterprise, “the surrounding tribes that
operate casinos could experience decreases in winnings, and
potentially be adversely impacted by the decreases,” with the
proposed casino/hotel project expected to capture
“approximately $77 million [per year] in total gaming
win[nings] from the local market.” The analysis was based
on a study by the company Gaming Market Advisors from
June 2006 contained in Appendix M of the DEIS, entitled
“Socio-Economic, Growth Inducing and Environmental
Justice Impact Study.”
The DEIS was made available for review and comment
was invited through publication in the Federal Register, and
in Chico, Marysville, Oroville, and Sacramento newspapers.
A public hearing was held on April 9, 2008. While multiple
comments on the project were submitted, including by
Indian Tribes who were opposed to the project, 4 again,
Colusa did not submit any comments on the project.
4
For example, on April 8, 2008, the Picayune Rancheria of the
Chukchansi Indians expressed to the BIA its view that “[t]he acquisition
of land outside of the tribe’s historic homelands solely to allow for a tribe
to own a casino is inconsistent with the congressional intent behind the
IRA.” The Chukchansi Indians are not a party to this lawsuit.
CACHIL DEHE BAND V. ZINKE 13
Sixth, in addition to complying with the regulatory steps
required by NEPA, Enterprise and the BIA took the steps
required under IGRA’s Secretarial two-part determination.
In Part 1 of the Secretarial two-part determination, the
Secretary of the Interior determines whether “a gaming
establishment on newly acquired lands would be in the best
interest of the Indian tribe and its members, and would not
be detrimental to the surrounding community.” 25 U.S.C.
§ 2719(b)(1)(A). In making his determination that the
project will not be “detrimental” to the surrounding
community, the Secretary is required to seek the consultation
of State and local officials, including officials of nearby
Indian tribes and other communities surrounding the
proposed site. 25 C.F.R. § 292.13. The regulations specify
that the “surrounding community means local governments
and nearby Indian tribes located within a twenty-five-mile
radius of the site of the proposed gaming establishment.” Id.
§ 292.2. However, a local government or Indian tribe
“located beyond the [twenty-five]-mile radius may petition
for consultation if it can establish that its governmental
functions, infrastructure or services will be directly,
immediately and significantly impacted by the proposed
gaming establishment.” Id.
The BIA commenced the consultation on January 16,
2009, and sent letters to State and local officials within a
twenty-five-mile radius of the Yuba Site soliciting their
input on the proposed project. Colusa is not located within
twenty-five miles of the proposed casino project. Colusa
wrote to the BIA on June 23, 2009, and stated that Colusa
should be consulted and that, given the potential impact of
the proposed casino on Colusa’s own casino revenues, the
BIA should not “slavish[ly] adhere[] to the arbitrary [twenty-
five]-mile standard.” In response, the BIA provided Colusa
with Enterprise’s fee-to-trust application and the two-part
14 CACHIL DEHE BAND V. ZINKE
determination request. Colusa did not respond to the BIA’s
letter.
Seventh, in May 2010 the BIA completed the final EIS
(the “FEIS”). The FEIS retained the same five alternatives
which were contained in the DEIS, and incorporated the
same analysis as included in the DEIS with respect to the
casino alternatives’ effects on other tribal casinos. The BIA
made the FEIS available for public review and comment by
publishing a Notice of Availability in the Federal Register
and Chico, Marysville, and Oroville newspapers. Colusa
then submitted a comment letter dated September 7, 2010.
The comment letter complained that the FEIS’s Purpose and
Need Statement was unduly restrictive; the FEIS failed to
consider reasonable alternatives; and Appendix M, which
analyzed the effect of the proposed casino on other tribal
casinos, relies on “conjecture rather than data.” The BIA
responded to each of the comments.
Eighth, having published the FEIS and considered
comments, the BIA published its Record of Decision under
IGRA (the “IGRA ROD”) in September 2011. The IGRA
ROD concluded that the project would “1) be in the best
interest of the Tribe and its members; and 2) that it would
not be detrimental to the surrounding community.” Pursuant
to 25 U.S.C. § 2719(b)(1)(A), the BIA sought the
concurrence of California Governor Jerry Brown in its
decision. Governor Brown concurred by letter dated August
30, 2012.
Finally, the BIA issued a Record of Decision under the
IRA (“IRA ROD”) in November 2012 pursuant to 25 U.S.C.
§ 5108. The IRA ROD concluded the trust acquisition on the
Yuba Site would “provide the Tribe with the best
opportunity for attracting and maintaining a significant,
stable, long-term source of governmental revenue, and
CACHIL DEHE BAND V. ZINKE 15
accordingly, the best prospects for maintaining and
expanding tribal governmental programs to provide a wide
range of health, education, housing, social, cultural,
environmental, and other programs, as well as employment
and career development opportunities for its members.”
II.
The lawsuits began immediately following the IRA
ROD’s publication. The United Auburn Indian Community
of the Auburn Rancheria (the “UAIC”) filed a complaint in
the District of Columbia on December 12, 2012. Colusa filed
a complaint in the Eastern District of California a few days
later. On December 20, 2012, Citizens filed a complaint in
the District of Columbia as well. The Citizens and UAIC
cases were consolidated and transferred to the Eastern
District of California. On January 23, 2013, the
Citizens/UAIC case was further consolidated with Colusa’s
into a single case. Enterprise intervened as a defendant.
Citizens, Colusa, and UAIC immediately moved for
injunctive relief to prevent the BIA from taking the land into
trust for Enterprise. The motion for injunctive relief was
denied. The Yuba Site was taken into trust on May 15, 2013.
The lawsuit, however, continued.
Before the district court, the UAIC, Citizens, and Colusa
alleged that Interior violated NEPA, IGRA, the IRA, and the
Clean Air Act, 42 U.S.C. § 7506(c). The parties cross-moved
for summary judgment. In support of their motion for
summary judgment, Colusa submitted a Declaration by
economist Alan Meister, dated October 9, 2014, along with
a two-page summary of a study Meister oversaw entitled
“Economic Impacts of the Proposed Enterprise Rancheria
Casino on the Colusa Indian Community & Colusa Casino
Resort,” (together the “Meister Declaration”), which
purports to demonstrate that Enterprise’s proposed casino
16 CACHIL DEHE BAND V. ZINKE
will have a devastating economic impact on Colusa. As a
result, the Meister Declaration is particularly relevant to
Plaintiffs’ claim that Defendants violated IGRA, as IGRA
requires the Secretary to determine that the proposed casino
will not be “detrimental to the surrounding community.”
25 U.S.C. § 2719(b)(1)(A).
The regulatory process ended when the IRA ROD was
issued on November 21, 2012. However, the Meister
Declaration first appeared as an exhibit in support of
Colusa’s 2014 motion for summary judgment, and therefore
was not in the Administrative Record considered by the
Agency. Interior moved to strike the Meister Declaration
from the district court record. The district court granted the
motion to strike the Meister Declaration because it post-
dates the Agency decision.
On September 23, 2015, the district court granted
Defendants’ motion for summary judgment on each of
plaintiffs’ claims. Plaintiffs also filed a motion for
reconsideration, which the district court denied on January
20, 2017.
Both Colusa and Citizens timely appealed the district
court’s decision, and those appeals were consolidated into
this action. The UAIC is not a plaintiff in this action.
III.
We review the district court’s grant of summary
judgment de novo, Schneider v. Vennard (In re Apple
Computer Sec. Litig.), 886 F.2d 1109, 1112 (9th Cir. 1989),
and its order to strike the Meister Declaration for abuse of
discretion, Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d
970, 973 (9th Cir. 2010). Under the Administrative
Procedure Act, 5 U.S.C. § 706 et. seq., an agency’s action
CACHIL DEHE BAND V. ZINKE 17
may be reversed only if it was arbitrary, capricious, an abuse
of discretion, or otherwise contrary to law. Mt. St. Helens
Mining & Recovery Ltd. P’ship v. United States, 384 F.3d
721, 727 (9th Cir. 2004).
IV.
Citizens and Colusa raise a host of statutory, regulatory,
and procedural challenges to the Enterprise trust
acquisition. 5
A. Challenges Based on the Indian Reorganization
Act
1. Statutory Authority for Trust Acquisition
As a preliminary matter, Citizens argues that the
Department of the Interior does not have the statutory
authority under the IRA to take land into trust for Enterprise.
Citizens argues that while Enterprise may be recognized as
an Indian Tribe today, Interior has failed to establish that
Enterprise was an Indian Tribe under federal jurisdiction in
1934, the year the IRA was passed.
Citizens is incorrect. 25 U.S.C. § 5108 authorizes the
Interior to take land into trust “for the purpose of providing
land for Indians.” The IRA defines “Indians” as “all persons
of Indian descent who are members of any recognized Indian
5
Colusa has also moved for judicial notice of the notices granting
petitions for review in the California Supreme Court of Stand Up for
California! v. State, 211 Cal. Rptr. 3d 490 (Ct. App. 2016) and United
Auburn Indian Community of Auburn Rancheria v. Brown, 208 Cal.
Rptr. 3d 487 (Ct. App. 2016). Those cases are potentially relevant only
to Colusa’s separate motion to stay, which we have already denied. See
Dkt. No. 31. The motion for judicial notice is therefore DENIED.
18 CACHIL DEHE BAND V. ZINKE
tribe” that was “under Federal jurisdiction” at the time of the
IRA’s enactment. 25 U.S.C. § 5129, Carcieri v. Salazar,
555 U.S. 379, 382 (2009). The IRA further states that “[t]he
term ‘tribe’ wherever used in this Act shall be construed to
refer to any Indian tribe, organized band, pueblo, or the
Indians residing on one reservation.” 25 U.S.C. § 5129
(emphasis added). The parties agree that the Enterprise
Rancheria is a reservation, and that Indians have lived on it
since at least 1915. 6 Therefore, Indians have been living
together on the Enterprise Rancheria reservation since at
least 1915—Enterprise is, by the terms of the IRA, a tribe
for whom Interior may acquire land in trust. 25 U.S.C.
§ 5129.
The Enterprise tribe was also “under Federal
jurisdiction” at the time of the IRA’s enactment. IRA Section
18 included an opt-out provision, and Enterprise voted to opt
out in an election held on June 16, 1935. In the IRA ROD,
the BIA states that “[t]he calling of a Section 18 election at
the Tribe’s Reservation conclusively establishes that the
Tribe was under federal jurisdiction.”
Citizens disputes that the Section 18 election
demonstrates the existence of a single tribe on the
reservation. Citizens reasons that contemporaneous accounts
from the Department of Interior show that Indians with
differing tribal ancestries often lived together on the same
reservation, and that in any event the voting record from the
Section 18 election does not describe any specific tribal
affiliation of those Indians who voted. Taken together,
6
As Citizens acknowledges, the record establishes that the United
States purchased the land which became known as the Enterprise
Rancheria in 1915 so that certain Indians “may have a permanent home
on this land.”
CACHIL DEHE BAND V. ZINKE 19
Citizens concludes that, while the Section 18 election may
be evidence that individual Indians were living at the
reservation, the election does not demonstrate that those
Indians were part of a single recognized tribe. The
individuals who voted in that election may have had multiple
tribal affiliations, or no affiliation at all.
Citizens’ argument ignores the expansive definition of
“tribe” contained in the IRA. Specifically, the IRA’s
definition of “tribe” includes “Indians residing on one
reservation.” 25 U.S.C. § 5129. Citizens’ observation that
there may have been individuals with differing tribal
ancestries who voted in the 1935 election is irrelevant: there
is nothing to suggest that Congress precluded Indians from
holding multiple tribal identities. 7 See Cty. of Amador v. U.S.
Dep’t of the Interior, 872 F.3d 1012, 1015, 1028 (9th Cir.
2017) (determining that the Ione Band is an Indian Tribe
despite having its origin as “the amalgamation of several
‘tribelets’ indigenous to Amador county”).
To hold otherwise would also invite a circuit split. In
Stand Up For California! v. United States Department of
Interior, 879 F.3d 1177 (D.C. Cir. 2018), the D.C. Circuit
concluded that a 1935 Section 18 election may be used to
demonstrate the existence of an Indian Tribe under federal
jurisdiction for purposes of the IRA. See id. at 1181–83. The
posture of that case is nearly identical to this one. In Stand
Up for California!, the plaintiff objected to Interior’s
acquisition of a tract of land for the benefit of the North Fork
Rancheria of Mono Indians (the “North Fork”) so that the
7
Cf. Act of Aug. 11, 1964, Pub. L. No. 88-419, 78 Stat. 390, 391
(clarifying that a prior statute which stripped Indian status from certain
reservation residents left those affected wholly bereft of Indian status
only if they were “not members of any other tribe or band.”)
20 CACHIL DEHE BAND V. ZINKE
North Fork could build a casino. As in this case, the North
Fork Record of Decision cited a Section 18 election held on
the North Fork reservation shortly after the passage of the
IRA as evidence the North Fork Indians were a “tribe”
“under federal jurisdiction” in 1934. Id. at 1182–84. The
plaintiff argued that the election was “insufficient to
establish, broadly, that the participants in the North Fork’s
[S]ection 18 election belonged to any one tribe.” Id. at 1182.
The D.C. Circuit analyzed the “IRA’s clear text,” and
concluded that the “‘Indians residing on one reservation’
comprise a ‘tribe’ under the Act.’” Id. at 1183 (citing
25 U.S.C. § 5129). The D.C. Circuit therefore concluded
that a Section 18 election held on a reservation represents
adequate evidence of the tribe’s existence, as “‘nothing in
the text of [the IRA] requires a tribe’ within the meaning of
the statute ‘to be “single,” “unified,” or comprised of
members of the same historically cohesive or
ethnographically homogenous tribe.’” Id. (alterations in
original) (quoting Stand Up for California! v. U.S. Dep’t of
the Interior, 204 F. Supp. 3d 212, 289 (D.D.C. 2016)). We
agree.
To summarize, Citizens is correct that the BIA has an
affirmative obligation to show that Enterprise was a “tribe”
under federal jurisdiction in 1934. But because of the IRA’s
expansive definition of “tribe,” evidence demonstrating that
a group of Indians was “residing on one reservation” in 1934
would suffice to demonstrate that those Indians were in a
“tribe” pursuant to the IRA. The parties do not dispute that
Indians have been residing on Enterprise Rancheria, a
reservation, since the Rancheria was established in 1915.8
8
We also agree with the D.C. Circuit in Stand Up for California!
that we may consider the record evidence describing the 1915 land
acquisition. See Stand Up for California!, 879 F.3d at 1183 (“Stand Up
CACHIL DEHE BAND V. ZINKE 21
The Section 18 election further demonstrates the “tribe” was
under federal jurisdiction when the IRA was enacted. The
Interior therefore had authority to take land into trust for
Enterprise’s benefit.
2. “Need” for the land
The implementing regulations for the IRA, which are
contained in 25 C.F.R. Part 151, explain that the Secretary
may take land into trust for tribes if “the acquisition of the
land is necessary to facilitate tribal self-determination,
economic development, or Indian housing.” 25 C.F.R.
§ 151.3(a)(3). Among other things, the Secretary must
specifically consider “[t]he need of the individual Indian or
the tribe for additional land.” 25 C.F.R. § 151.11(a). 9 The
insists that we may not consider this purchase because the Department
treated the section 18 election alone as ‘conclusively establish[ing] that
the [North Fork] was under Federal jurisdiction’ in 1934. Stand Up
misreads the Department’s decision. Although the Department treated
the election held ‘at the Tribe’s Reservation’ as dispositive of the
government’s jurisdictional relationship with the reservation's residents,
it presupposed that the reservation was a ‘Tribe’s.’ The source of that
presupposition becomes clear in the decision's very next section, where
the Department characterized the 1916 Rancheria purchase as
establishing the North Fork’s ‘tribal land.’”). So too here. In our case,
the IRA ROD states that the “Section 18 election at the Tribe’s
Reservation conclusively establishes that the Tribe was under federal
jurisdiction.” That statement presupposes that the reservation was the
Tribe’s. As in Stand Up for California!, the source of that presupposition
appears in the very next section, wherein the IRA ROD describes the
land purchased in 1915 as the “Tribe’s . . . land holdings.”
9
The other considerations include, (a) the statutory authority for the
acquisition and any limitations contained in such authority; (c) “the
purposes for which the land will be used”; (e) if the land acquired is in
unrestricted fee status, the impact on the State resulting from the removal
of the land from the tax rolls; (f) “jurisdictional problems and potential
22 CACHIL DEHE BAND V. ZINKE
IRA ROD explained that Enterprise had limited land
holdings, and with such limited holdings, “the Tribe has
been unable to exercise many of its sovereign powers. The
Tribe’s office is located on non-Indian fee land, and there is
no usable land base for tribal housing programs of any kind
or economic development. The Tribe needs the subject
parcel held in trust in order to better exercise its sovereign
responsibility to provide economic development to its tribal
citizens.”
Colusa argues in their opening brief that the IRA ROD
“did not find that Enterprise had a ‘need’ for the Yuba Parcel
. . . so much as a ‘desire’ for it.” In other words, this
particular parcel is not essential for Enterprise’s economic
development, and Enterprise therefore does not need it, as
other parcels might provide adequate opportunity for
economic development.
Colusa asks the impossible. It is unclear how any trust
application can prove a negative and demonstrate that a
single parcel of land—and only that particular parcel—will
suffice. Colusa points to no case, and we are aware of none,
where a court has mandated such an undertaking. By
contrast, in South Dakota v. United States Department of the
Interior, 423 F.3d 790, 801 (8th Cir. 2005), the Eighth
Circuit rejected a similar argument. In that case, the court
conflicts of land use which may arise”; (g) if the land is acquired in fee
status, whether the BIA is equipped to discharge additional
responsibilities; (h) the extent to which the applicant provided
information that allows the Secretary to comply with 516 DM 6,
appendix 4, National Environmental Policy Act Revised Implementing
Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substance
Determinations. 25 C.F.R. § 151.11 (a), incorporating by reference
25 C.F.R. § 151.10 (a)-(c), (e)–(h).
CACHIL DEHE BAND V. ZINKE 23
considered the State of South Dakota’s appeal of Interior’s
decision to take certain land into trust for the Lower Brule
Sioux Tribe. Id. at 793. One of the plaintiff’s arguments was
that the Secretary did not describe sufficiently the tribe’s
“need” for the land. Id. at 801. The panel determined that it
is “sufficient for the Department’s analysis to express the
Tribe’s needs and conclude generally that IRA purposes
were served.” Id. 10 We agree. Interior determined that
Enterprise needed economic development; the Yuba Site
provides an opportunity for Enterprise to engage in that
development.
Second, Colusa argues that the existence of other parcels
owned by Enterprise somehow undercuts Enterprise’s need
for the land. Colusa notes that Enterprise previously
purchased land in Butte County, with funds granted by the
United States Department of Housing and Urban
Development and one of the authorized uses for that land is
economic development. But the existence of other land does
not undercut Enterprise’s “need” for the Yuba parcel.
Indeed, Colusa had recognized in its 2010 comments on the
FEIS that Enterprise intends to use the sixty-three-acre
parcel for tribal member housing purposes. Enterprise
secured a place for its members to live. That does not render
arbitrary or capricious its acquisition of a place for them to
work as well.
10
South Dakota had argued that the Secretary did not provide
enough detail describing why it was necessary to take the land into trust
status rather than fee status. The Eight Circuit determined that “it would
be an unreasonable interpretation of 25 C.F.R. § 151.10(b) to require the
Secretary to detail specifically why trust status is more beneficial than
fee status.” South Dakota, 423 F.3d at 801.
24 CACHIL DEHE BAND V. ZINKE
3. Mis-description of the Parcel
On December 3, 2012, Interior published in the Federal
Register a Notice of Final Agency Determination to take
land into trust for the benefit of Enterprise Rancheria,
77 Fed. Reg. 71612. That Notice included a description of
the land to be taken into trust. However, the notice provided
an incorrect legal description of an eighty-acre parcel—the
parcel which would be divided prior to the transfer of forty
acres into trust for Enterprise’s benefit. Interior corrected
this error in the legal description the following month. See
78 Fed. Reg. 114 (Jan. 2, 2013).
Colusa infers from this mis-description that Interior did
not actually know what piece of land was being taken into
trust, thereby rendering the final ROD arbitrary and
capricious.
However, the administrative record is replete with
descriptions of the correct forty-acre parcel, including
detailed maps. The mis-description was a trivial error that
was quickly corrected. Colusa cites no case law, and we are
aware of none, indicating that such trivial errors require the
invalidation of an ROD.
B. Challenges based on the Indian Gaming
Regulatory Act
IGRA generally prohibits gaming on lands which the
Government has taken into trust for an Indian tribe after
1988, 25 U.S.C. § 2719(a). However, gaming may be
allowed when
the Secretary, after consultation with the
Indian tribe and appropriate State and local
officials, including officials of other nearby
CACHIL DEHE BAND V. ZINKE 25
Indian tribes, 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, but only if the
Governor of the State in which the gaming
activity is to be conducted concurs in the
Secretary’s determination.
Id. § 2719(b)(1)(A). This process is referred to as a
“Secretarial Determination.” Pursuant to the statute and its
implementing regulations, there are four basic steps to a
Secretarial Determination: 1) the Secretary consults with
relevant State and local officials, including “nearby” Indian
tribes; 2) the Secretary determines, after consultation, that
the proposed site is in the best interest of the tribe which will
engage in the gaming; 3) the Secretary determines that the
proposed site will not be “detrimental to the surrounding
community”; and 4) the Secretary receives the concurrence
from the Governor of the affected State (in this case,
California). See id. According to the implementing
regulations, a tribe is “nearby” when it is within twenty-five
miles of the proposed site. 25 C.F.R. § 292.2.
Colusa describes three alleged errors in this process.
First, Colusa argues that the BIA erred when it failed to
consult with Colusa. Second, Colusa argues that the
regulation which mandates consultation only with those
communities within twenty-five miles of the proposed trust
acquisition is invalid. Finally, Colusa argues that the
Secretary’s finding that the proposed casino project would
not be “detrimental to the surrounding community,”
25 U.S.C. § 2719(b)(1)(A), was arbitrary and capricious. To
support that argument, Colusa contends that a document it
submitted on summary judgment—the Meister
26 CACHIL DEHE BAND V. ZINKE
Declaration—shows that the casino project would be
detrimental to Colusa and should not have been stricken by
the district court.
Citizens argues the IGRA ROD’s determination that the
proposed acquisition would not be “detrimental to the
surrounding community” is arbitrary and capricious because
the IGRA ROD fails to explain how necessary mitigation
measures will be enforced.
1. The BIA’s consultation with Colusa
IGRA requires the Department of the Interior to consult
with “nearby” Indian tribes when Interior considers a trust
acquisition for the purpose of Indian gaming. The
implementing regulations, 25 C.F.R. § 292.2, define as
“nearby” those tribes located within a twenty-five mile
radius. A tribe “located beyond the [twenty-five]-mile radius
may petition for consultation if it can establish that its
governmental functions, infrastructure or services will be
directly, immediately and significantly impacted by the
proposed gaming establishment.” 25 C.F.R. § 292.2. Colusa
is located more than twenty-five miles from the location of
the proposed hotel and casino project.
On January 16, 2009, the BIA sent letters to State and
local officials within a twenty-five-mile radius of the Yuba
Site to solicit input and “consult” on the proposed project.
These State and local officials did not include members of
Colusa. On June 23, 2009, Colusa wrote to the BIA and
stated that Colusa, despite being located more than twenty-
five miles from the Yuba Site, should be consulted. On July
18, 2009 the BIA wrote a letter back to Colusa. That letter
enclosed a number of documents including Enterprise’s fee-
to-trust application, and explained that although “pursuant to
25 C.F.R. Part 292 you do not qualify as a nearby tribe for
CACHIL DEHE BAND V. ZINKE 27
purposes of consultation under this part, you may submit
comments and/or documents that establish that your
governmental functions, infrastructure or services will be
directly, immediately and significantly impacted by the
proposed gaming establishment.” Colusa never responded to
the BIA’s letter.
Nothing more was required of the BIA. It allowed
Colusa, pursuant to the implementing regulations, to petition
for consultation. Colusa chose not to do so.
2. Colusa’s challenge to 25 C.F.R. § 292.2
Colusa next argues that the implementing regulations
defining “nearby” as within twenty-five miles are invalid.
Colusa appears to bring both a facial and an as-applied
challenge to the twenty-five mile radius. 11
Both challenges fail. To prevail in a facial challenge,
Colusa “must establish that no set of circumstances exists
under which the regulation would be valid.” Reno v. Flores,
507 U.S. 292, 301 (1993) (alteration in original omitted)
(quoting United States v. Salerno, 481 U.S. 739, 745
(1987)). Colusa has not attempted to do so beyond its
conclusory condemnation of the regulation. Colusa does not
explain why in all circumstances, a definition of the word
“nearby” as meaning “within twenty-five miles” is arbitrary
and capricious. Colusa is also unable to show the regulation
was invalid as it was applied to them. Colusa has not
proffered any evidence establishing that the procedure in
25 C.F.R. § 292.2, which requires tribes like Colusa to
11
We say “appears” to bring facial and as-applied challenges
because the words “facial” and “as-applied” are not specifically used in
Colusa’s briefing.
28 CACHIL DEHE BAND V. ZINKE
petition for consultation, is especially burdensome, or even
that it would have been difficult for Colusa to show that its
“infrastructure or services will be directly, immediately and
significantly impacted by the proposed gaming
establishment.” 25 C.F.R. § 292.2. In any event, regardless
of the twenty-five-mile radius for consultation of Tribes
within that area, Colusa was given an opportunity to consult.
Colusa’s as-applied challenge therefore also fails.
3. The Meister Declaration
IGRA requires that the proposed trust acquisition “not be
detrimental to the surrounding community.” 25 U.S.C.
§ 2719(b)(1)(A). In support of its determination that the
proposed casino will not be detrimental, the FEIS, which is
explicitly referenced by the IGRA ROD, included a study on
the economic impact of the casino. Contained in Appendix
M of the FEIS, the study, entitled “Socio-Economic, Growth
Inducing and Environmental Justice Impact Study,”
employed a so-called “gravity model” to determine the likely
effect of the proposed casino on competitor casinos. 12 The
12
As Appendix M explains, the gravity model is an application of
Newton’s Universal Law of Gravitation. Newton’s Law states that every
particle in the universe attracts every other particle with a force that is
directly proportional to the product of their masses, and inversely
proportional to the square of the distance between them. With respect to
commerce, the gravity model posits that two equally sized commercial
establishments which are equidistant from a given individual will have
the same “pull” on that individual. Should one of the establishments be
twice the size of the other, it will have twice the pull on the individual.
In the study contained in Appendix M, AES states that “[b]y estimating
the revenue levels at each of the casino properties within the competitive
set, researching the number of gaming positions provided within each,
visiting each facility to understand the relative aesthetic attractiveness
(including a consideration of non-gaming amenities), and utilizing
CACHIL DEHE BAND V. ZINKE 29
Appendix M study concluded that “those casinos closest to
the subject Enterprise Rancheria are expected to experience
the greatest loss of revenue,” with a total “cannibalization”
of approximately “$76.8 million in gaming win[nings] from
the local market area.” It further concluded that the loss in
revenues would be distributed among twelve competing
casinos, with the “two market leaders, Thunder Valley and
Cache Creek, absorbing nearly 2/3 of the drop in revenue.”
The study estimated that Colusa’s casino would lose
approximately $4.3 million per year. Colusa does not argue
that $4.3 million per year represents a detrimental loss.
Nevertheless, on summary judgment Colusa disputed the
conclusions of the Appendix M study. In support of its
summary judgment motion Colusa submitted the Meister
Declaration, which concluded that the Enterprise casino
would have a larger economic impact on Colusa’s casino
than indicated by the study in Appendix M. The Meister
Declaration did not provide the data on which its conclusion
was based.
The district court struck the Meister Declaration because
it represents extra-record evidence. It correctly noted that the
Ninth Circuit allows for a court to review material outside of
the administrative record in four narrow circumstances:
1) where the extra-record evidence is
“necessary to determine whether the agency
has considered all relevant factors and has
explained its decision”;
gaming factors from proprietary and public sources, the model can be
calibrated to current market conditions.”
30 CACHIL DEHE BAND V. ZINKE
2) where “the agency has relied on
documents not in the record”;
3) where “supplementing the record is
necessary to explain technical terms or
complex subject matter”; or
4) where “plaintiffs make a showing of
agency bad faith.”
Sw. Ctr. For Biological Diversity v. U.S. Forest Serv.,
100 F.3d 1443, 1451 (9th Cir. 1996) (internal citations
omitted). Colusa does not dispute the district court’s
rejection of exception 4 (agency bad faith) or exception 2
(reliance on material not in the administrative record).
The district court did not abuse its discretion when it
determined that the Meister Declaration was not “necessary
to explain technical terms or complex subject matter”
(exception 3). The Meister Declaration does not explain
technical terms or elucidate complex subject matter. It
endorses the methodology employed by the 2006 study
contained in Appendix M, but criticizes that study as reliant
on bad data. The Meister Declaration was provided to rebut
Appendix M, not to explain it.
The district court also did not abuse its discretion when
it determined that the Meister Declaration was not
“necessary to determine whether the agency has considered
all relevant factors” (exception 1). The Meister Declaration
provides new analysis regarding the economic effects of the
proposed gaming site on competing casinos. But the
economic effects on other tribes’ casinos is a problem that
the BIA considered, even if the specific data proffered in the
Meister Declaration was not available to the BIA.
CACHIL DEHE BAND V. ZINKE 31
Further, even if one of the enumerated exceptions did
apply, it would be of no matter, because “exceptions to the
normal rule regarding consideration of extra-record
materials only apply to information available at the time, not
post-decisional information.” Tri-Valley CAREs v. U.S.
Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012)
(original alterations and internal quotation marks omitted);
see also id. at 1130–31 (“[P]ost-decision information may
not be advanced as a new rationalization either for sustaining
or attacking an agency's decision because it inevitably leads
the reviewing court to substitute its judgment for that of the
agency.” (internal quotation marks omitted)). The Meister
Declaration was executed June 24, 2014 and the study it
contains is dated May 2013. The Meister Declaration and its
accompanying study therefore post-date the 2011 IGRA
ROD by approximately two years.
Nor is it clear whether the data pre-dates or post-dates
the Agency decision. The Meister Declaration attached a
single exhibit—a two page “report” which summarizes
Meister’s projections regarding Colusa’s revenues. That
report makes predictive statements about the effect of the
Enterprise project on Colusa’s revenues in 2016 through
2018, and states that it is “based on actual data from both the
Colusa Casino Resort and the Colusa Indian Community.”
However, the report does not state the years from which the
data were drawn, or describe the data with any specificity.
The data were never provided to Interior.
Because the Meister Declaration is not necessary to
determine whether the agency has considered all relevant
factors and has explained its decision, Sw. Ctr. For
Biological Diversity, 100 F.3d at 1451, and because the
analysis contained within it post-dates the IGRA ROD, the
32 CACHIL DEHE BAND V. ZINKE
district court did not abuse its discretion when it granted the
motion to strike.
4. Enforcement of Mitigation Measures
Citizens also argues that the Secretary’s determination
that there will be no detrimental harm to the surrounding
community was arbitrary and capricious. Citizens asserts
that the mitigation measures to which Enterprise agreed, and
which the IGRA ROD acknowledges are necessary to
prevent detrimental harm to the surrounding community, are
not enforceable. Citizens argues that as a result it was
arbitrary and capricious for the BIA to rely on such
“illusory” mitigation.
In the IGRA ROD, Interior states that it has “considered
potential effects to the environment, including potential
impacts to local governments and other tribes, has adopted
all practicable means to avoid or minimize environmental
harm, and has determined that potentially significant effects
will be adequately addressed by . . . mitigation measures.”
The IGRA ROD further states that the “Preferred
Alternative”—i.e., the selection of the Yuba Site for the
casino project—would be implemented “subject to
implementation of the mitigation measures.” The IGRA
ROD contains approximately twenty pages of detailed
mitigation measures, ranging from the requirement that
Enterprise “install a trash compactor for cardboard and paper
products,” to the requirement that Enterprise implement
water conservation measures. The mitigation measures also
include less specific requirements; for example, Enterprise
is told to “enter into [a Memorandum of Understanding] or
provide for a similar agreement to reimburse the affected law
enforcement department for the provision of law
enforcement services [which would] include compensation
for increased equipment or staffing needs.” In addition, the
CACHIL DEHE BAND V. ZINKE 33
IGRA ROD adopted by reference the mitigation measures
listed in the FEIS.
Again, Citizens concedes that the many mitigation
measures listed, if implemented, would be adequate.
Citizens contends however that there is no guarantee the
measures will be implemented at all. Due to Tribal sovereign
immunity, which insulates Enterprise from suit, the
jurisdictions that are affected by negative externalities of the
casino project may not be able to compel Enterprise to live
up to its mitigation obligations. See, e.g., Michigan v. Bay
Mills Indian Cmty., 134 S. Ct. 2024, 2028 (2014) (holding
that tribes enjoy sovereign immunity from suit for on- and
off-reservation activities). Citizens concludes that such
failure to include enforcement mechanisms renders
mitigation “illusory.”
In a matter of first impression, we find that it is within
the expertise of the Agency to determine the likelihood
required mitigation measures will be followed, and the
BIA’s determination that Enterprise would fulfill its required
mitigation measures was not arbitrary or capricious. In
National Association of Home Builders v. Defenders of
Wildlife, 551 U.S. 644 (2007), the Supreme Court
summarized what a reviewing court may consider when it
determines whether an agency decision is arbitrary and
capricious. The Court ruled that,
[r]eview under the arbitrary and capricious
standard is deferential; we will not vacate an
agency’s decision unless it has relied on
factors which Congress had not intended it to
consider, entirely failed to consider an
important aspect of the problem, offered an
explanation for its decision that runs counter
to the evidence before the agency, or is so
34 CACHIL DEHE BAND V. ZINKE
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise. We will, however, uphold a
decision of less than ideal clarity if the
agency’s path may reasonably be discerned.
Id. at 658 (internal quotation marks and citations omitted).
Citizens does not allege that there were factors which the
BIA considered which “Congress had not intended it to
consider” or that an explanation was offered that “runs
counter to the evidence before the agency.” Id. Neither is the
BIA’s conclusion that Enterprise would engage in the
agreed-upon mitigation “so implausible that it could not be
. . . the product of agency expertise.” Id.
Only one factor described in Defenders of Wildlife—that
a decision may be arbitrary and capricious if the agency
“entirely failed to consider an important aspect of the
problem”—is arguably applicable, as mitigation is an
important factor for the BIA to consider. However, Citizens
does not argue that the agency “failed to consider”
mitigation. It argues that the mitigation the agency
considered was “illusory” because of the difficulties in
enforcement; i.e., that the agency’s prediction that
mitigation would take place is unreasonable. But “[t]he
‘arbitrary and capricious’ standard is particularly deferential
in matters implicating predictive judgments.” Stand Up For
California!, 879 F.3d at 1188 (quoting Rural Cellular Ass’n
v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009)). And indeed,
Citizens has not argued that it is unlikely or “implausible”
that the needed mitigation will take place. Citizens has not
presented, for example, an economic argument describing
why it is unlikely that Enterprise will fulfill its mitigation
obligations. Absent more, we will not speculate upon
reasons Enterprise may decide not to live up to its
CACHIL DEHE BAND V. ZINKE 35
agreements. The Agency concluded they will, and absent
evidence, we will not gainsay the Agency’s conclusion.
C. Challenges based on the National Environmental
Policy Act
While NEPA establishes a “national policy [to]
encourage productive and enjoyable harmony between man
and his environment,” 42 U.S.C. § 4321, “NEPA itself does
not mandate particular results,” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989). “Rather, NEPA
imposes only procedural requirements on federal agencies
with a particular focus on requiring agencies to undertake
analyses of the environmental impact of their proposals and
actions.” Dep’t of Transp. v. Public Citizen¸541 U.S. 752,
756–57 (2004). Colusa argues that the FEIS was
procedurally deficient in a number of ways.
1. Purpose and Need Statement
NEPA’s implementing regulations require that an EIS
contain a statement describing the “purpose and need” of the
project, which “shall briefly specify the underlying purpose
and need to which the agency is responding in proposing the
alternatives including the proposed action,” 40 C.F.R.
§ 1502.13. Further, in the EIS, the agency must “[r]igorously
explore and objectively evaluate all reasonable alternatives,
and for alternatives which were eliminated from detailed
study, briefly discuss the reasons for their having been
eliminated.” 40 C.F.R. § 1502.14. While agencies enjoy
“considerable discretion,” to define the purpose and need of
a project, Friends of Se.’s Future v. Morrison, 153 F.3d
1059, 1066 (9th Cir. 1998), in doing so “an agency cannot
define its objectives in unreasonably narrow terms,” City of
Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142,
1155 (9th Cir. 1997). “Courts evaluate an agency’s statement
36 CACHIL DEHE BAND V. ZINKE
of purpose under a reasonableness standard…and in
assessing reasonableness, must consider the statutory
context of the federal action at issue…[while] [a]gencies
enjoy considerable discretion in defining the purpose and
need of a project…they may not define the project’s
objectives in terms so unreasonably narrow, that only one
alternative would accomplish the goals of the project.”
HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222,
1230 (9th Cir. 2014) (citations and internal quotation marks
omitted).
Colusa argues the FEIS’s “purpose and need” statement
was “artificially limited.” It was not.
The FEIS explained that the objectives of the trust
acquisition were to
• Restore trust land to the Tribe in an amount
equal to the amount of land previously lost as
a result of federal action . . . .
• Provide employment opportunities for tribal
members and [the] non-tribal community.
• Improve the socioeconomic status of the
Tribe by providing a new revenue source that
could be utilized to build a strong tribal
government, improve existing tribal housing,
provide new tribal housing, fund a variety of
social, governmental, administrative,
educational, health, and welfare services to
improve the quality of life of tribal members,
and to provide capital for other economic
development and investment opportunities.
CACHIL DEHE BAND V. ZINKE 37
• Allow Tribal members to become
economically self-sufficient, thereby
eventually removing Tribal members from
public-assistance programs.
• Fund local governmental agencies, programs,
and services.
• Make donations to charitable organizations
and governmental operations.
• Effectuate the Congressional purposes set out
in [IGRA].
The Purpose and Need Statement further states that the Tribe
“has no sustained revenue stream” which can be used to fund
programs for Tribal members.
The Purpose and Need Statement is quite broad. It
describes the BIA’s intent to provide Enterprise with a
vehicle for substantial economic development, and the
various benefits that may accrue from economic self-
sufficiency. Colusa argues that the “narrow” Purpose and
Need Statement led to a deficient analysis of possible
alternatives. But the BIA considered five possible
alternatives: Alternative A, the hotel casino project that was
ultimately accepted on the Yuba Site; Alternative B, a
smaller casino on the Yuba Site; Alternative C, a water park
on the Yuba Site; Alternative D, a casino on an alternate site
in Butte County; and Alternative E, no action. The FEIS
considered in detail the environmental and economic
consequences of each alternative. Based on the analysis of
the possible alternatives in the FEIS, the Interior concluded
that the best alternative was the one selected—Alternative
38 CACHIL DEHE BAND V. ZINKE
A, the casino/hotel project on the Yuba Site. 13 The range of
alternatives was not “illusory.”
In addition, Colusa argues that the FEIS should have
analyzed two additional sites—1) a site in Oroville
13
The IGRA ROD explains why Alternative A, the Yuba hotel-
casino site, was ultimately selected:
Alternatives B and C, while slightly less intensive than
Alternative A, would require similar levels of
mitigation for identified impacts; however, the
economic returns would be smaller than under
Alternative A and the more limited development is not
the most effective use of either the land or the Tribe’s
capital resources. The Tribe needs a development
option that would ensure adequate capital resources to
not only fund Tribal programs but fund mitigation
measures for identified impacts and payment
obligations to local jurisdictions. The reduced revenue
anticipated from Alternatives B and C would limit the
Tribe’s ability to fund both Tribal programs and
mitigation measures. Additionally, without the
development of the hotel and the rural location of the
Butte site, Alternative D would provide further limited
opportunities for capital development to fund Tribal
programs. A non-gaming entertainment development
on the Yuba [S]ite would have limited competitive
ability to draw patrons from the greater population
centers within Yuba County and the Highway 65
corridor compared to the gaming alternatives. In
addition, based on peak-hour traffic patterns for retail
centers compared to gaming operations, Alternative C
also would likely have equal to and in certain instances
greater traffic impacts during peak hours than would
Alternative A. In short, Alternative A is the alternative
that best meets the purpose and need of the Tribe and
the BIA while preserving the natural resources of the
Yuba [S]ite. Therefore, Alternative A is the
Department’s Preferred Alternative.
CACHIL DEHE BAND V. ZINKE 39
purchased by Enterprise in 2006, and 2) an unspecified site
on federal land near Enterprise 1. However, Colusa failed to
propose these additional sites during the comment period.
With respect to non-obvious defaults in an EA or EIS,
“persons challenging an agency’s compliance with NEPA
must structure their participation so that it alerts the agency
to the parties’ position and contentions, in order to allow the
agency to give the issue meaningful consideration.” Dep’t of
Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (original
alterations, citations, and internal quotation marks omitted).
A failure to identify “in their comments any rulemaking
alternatives beyond those evaluated in the EA” causes those
now objecting to an agency rulemaking to “forfeit[] any
objection to the EA on the ground that it failed adequately to
discuss potential alternatives to the proposed action.” Id. at
764–65; see also N. Idaho Cmty. Action Network v. U.S.
Dep’t of Transp., 545 F.3d 1147, 1156 & n.2 (9th Cir. 2008)
(finding that the Department of Transportation’s highway
construction project did not violate NEPA when the Agency
failed to consider a tunnel alternative that was not brought to
its attention until well after the notice and comment period
for the EIS closed, and ruling that “any objection to the
failure to consider that alternative has been waived”).
During the notice and comment period, Colusa did not
tell the BIA to consider the alternatives it now proposes.
Having failed to do so, Colusa has waived any argument that
the failure to consider those alternatives represented a
violation of NEPA.
2. Analysis of Data
Next, Colusa argues that the FEIS failed adequately to
analyze the effect of the proposed project on the local
environment, because some of the data on which the FEIS
relied was inadequate. First, Colusa argues that the
40 CACHIL DEHE BAND V. ZINKE
“biological data” on which the FEIS relied was “stale.”
Second, Colusa argues that Appendix M—which analyzed
the socio-economic impacts of the Yuba Site casino
project—was based on insufficient data.
i. Biological Data
Colusa argues that unspecified “biological data” in the
FEIS is outdated and cites Lands Council v. Powell, 395 F.3d
1019, 1031 (9th Cir. 2005), a Ninth Circuit decision in which
the court ruled that certain six-year old data on which an
FEIS relied was “suspect.” Colusa then states broadly that
“much of the biological information” is “several years old,”
and “in some cases nearly ten years old.”
A review of the FEIS Appendices reveals that Colusa’s
argument is unsupported.
The FEIS Appendices contain a variety of different
studies, letters, and declarations from potentially impacted
parties. For example, Appendix D contains a “Water and
Wastewater Feasibility Study” prepared in July 2008,
approximately two years before the publication of the FEIS,
and Appendix H contains a “Biological Resources
Assessment” of the site of the trust acquisition prepared in
2007, three years before the completion of the FEIS. Colusa
does not explain why the data in the Appendices are
unreliable. The data in the various Appendices were
generally compiled after 2006, two years prior to the
publication of the DEIS, and four years prior to the
publication of the FEIS. Colusa has pointed to no authority,
and provided no argument, indicating that data which is four
years old is inherently suspect. Colusa assigns a 2003 date to
Appendix L, which contains correspondence with the State
of California’s Office of Historic Preservation indicating
that no historic properties will be impacted. However, that
CACHIL DEHE BAND V. ZINKE 41
Appendix contains two letters—one from 2003, and another
from 2007, the latter of which similarly concurred that no
historic properties would be affected.
Apart from Appendix L, only one Appendix contains
data older than 2006: Appendix E, a 2000 declaration that a
proposed wastewater treatment plant on the Yuba Site would
not have a significant environmental impact. This document
is historic and not subject to updating, and Colusa has not
alleged that this historic document was the basis of any
specific conclusions drawn in the FEIS. Colusa is therefore
unable to support its generalized statement that the
unspecified “biological data” contained in the FEIS is
“stale.” 14
ii. Economic Data
Colusa next argues that the economic data on which
Enterprise relied was flawed. As noted above, Appendix M
of the FEIS contains a study authored by Gaming Market
Advisors entitled “Socio-Economic, Growth Inducing and
Environmental Justice Impact Study.” That study described
the likely economic impact of the proposed casino on other
competing casinos, including that of plaintiff Colusa. Colusa
argues that Appendix M relied on stale data and made
improper economic assumptions. By contrast, Colusa insists
that the Meister Declaration contained a more accurate
accounting of the effect Enterprise’s casino would have on
Colusa.
14
Colusa also insists that the Appendices were “compiled prior to
the recently ended drought.” Colusa does not state what “biological data”
was affected by that drought, or otherwise cite to any case law indicating
that the court should find an FEIS inadequate because of the intervention
of specific weather events.
42 CACHIL DEHE BAND V. ZINKE
Colusa’s argument is misplaced. The Meister
Declaration was properly struck as extra-record evidence
which post-dated the FEIS and the IGRA and IRA RODs. It
also was based on proprietary data which Colusa did not
provide to the BIA during the regulatory process and which
Colusa still has not disclosed. Colusa cannot now rely on it
here. Pub. Citizen, 541 U.S. at 764. Further, Colusa’s
argument regarding the allegedly missing economic data is
connected to its claim that Colusa will experience economic
harm as a result of the casino project. We have “consistently
held that purely economic interests do not fall within
NEPA’s zone of interests.” Ashley Creek Phosphate v.
Norton, 420 F.3d 934, 940 (9th Cir. 2005).
3. Hard Look at Environmental Harm
Colusa next argues that the FEIS failed to take a “hard
look” at the environmental impacts of the proposed action. 15
Colusa describes two deficiencies: i) one regarding the air
quality analysis in the FEIS, and ii) another regarding the
effect of the project on certain species of fish.
Neither argument is persuasive.
15
See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt.,
387 F.3d 989, 992–93 (9th Cir. 2004) (“Through the NEPA process,
federal agencies must carefully consider detailed information concerning
significant environmental impacts, but they are not required to do the
impractical. Alternatively phrased, the task is to ensure that the agency
has taken a ‘hard look’ at the potential environmental consequences of
the proposed action.” (original alterations, internal citations, and
quotations omitted)).
CACHIL DEHE BAND V. ZINKE 43
i. Air Quality
Colusa argued that the FEIS’s analysis of air quality was
deficient under NEPA, because “[t]he FEIS merely asserted
that the emissions from Enterprise’s proposed casino would
conform to California’s state plan, but did not give any
figures that would support that assertion.” App. Br. at 37.
Colusa also argued that “it appears that NOx emissions may
exceed EPA’s de minimis threshold for both ozone and
PM2.5 emissions and require offsets or other actions by DOI
to conform to the California State Implementation Plan.”
Colusa did not elaborate on the effect of the alleged “NOx”
emissions, or otherwise explain how the existence of such
emissions violate the Clean Air Act, NEPA, or any other
statute. As a result Colusa has waived this argument for
failing to develop it. Greenwood v. FAA, 28 F.3d 971, 977
(9th Cir. 1994) (“We review only issues which are argued
specifically and distinctly in a party’s opening brief. We will
not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim, particularly when, as
here, a host of other issues are presented for review. [J]udges
are not like pigs, hunting for truffles buried in briefs.”
(internal citations and quotations omitted)).
Further, Colusa’s general contention that the FEIS
provided insufficient figures is incorrect, as the FEIS
supported its conclusion that the emissions from Enterprise’s
proposed casino would not violate the Clean Air Act or any
California regulation. According to 40 C.F.R.
§ 93.153(b)(1), the de minimis threshold for emissions of
NOx is 100 tons per year. The FEIS describes mitigation
measures that will reduce emissions of NOx to below
25 pounds per day, or 4.56 tons per year, well below the
regulatory threshold.
44 CACHIL DEHE BAND V. ZINKE
ii. Migratory Fish
Colusa next argues that the FEIS ignores potential harm
to six fish species of concern, five of which are listed under
the Endangered Species Act. Colusa argues that the FEIS
should have discussed whether or not the canals near the
Yuba parcel are “screened” in order to protect the migratory
fish. Colusa does not proffer any evidence that there is an
actual danger to these species of fish, or otherwise describe
a likely effect of the casino project on the fish. The FEIS
states that the fish species will not live in or near the project
site. 16 Colusa does not provide any evidence or argument to
undermine the FEIS’s statement.
4. Oversight of the FEIS
40 C.F.R. § 1506.5(c) states that an EIS “prepared
pursuant to the requirements of NEPA shall be prepared
directly by or by a contractor selected by the lead agency
. . . . It is the intent of these regulations that the contractor be
chosen solely by the lead agency . . . .”
Colusa argues that the BIA failed to exercise “sufficient
independent oversight over [the] preparation of the FEIS,”
and insists that Enterprise, rather than the BIA, “chose” AES
as its contractor for the creation of the EIS. Colusa also
argues that AES had an impermissible “financial interest” in
the outcome of the project.
16
The FEIS states that the fish “do not have the potential to occur
within the study area, as the only aquatic habitats within the study area
are agricultural irrigation ditches and canals or receive water supply from
these ditches or canals. The water level fluctuates within these features
according to crop demand and is not sufficient to support these species.”
CACHIL DEHE BAND V. ZINKE 45
First, Colusa provides no evidence that the BIA did not
make an independent choice to contract with AES. As noted
above, Enterprise contracted with AES under the BIA’s
supervision to create a draft EA, a document which the BIA
evaluated prior to deciding whether to proceed with an EIS.
Having decided to create an EIS, the BIA then entered into
a Professional Services Third-Party Agreement with AES.
The Professional Services Third-Party Agreement states that
“[t]his Agreement constitutes the required disclosure
statement and the BIA’s selection of AES as the primary EIS
contractor.” Colusa points to nothing in the Agreement, or to
anything else in the record, which calls into question the
BIA’s representation that it chose to contract with AES for
the creation of the EIS.
Second, Colusa has not shown an impermissible conflict
of interest. 40 C.F.R. § 1506.5(c) states that a contractor
which prepares an EIS “shall execute a disclosure statement
prepared by the lead agency . . . specifying that they have no
financial or other interest in the outcome of the project.”
AES executed such a disclosure statement. However, Colusa
argues that AES in reality had an impermissible financial
interest in the outcome of the project: the same Agreement
containing AES’s disclosure statement states that “AES . . .
will supply environmental consulting services to prepare the
environmental documentation and assist with obtaining
permit approvals necessary to construct the project.” Colusa
reasons that AES will aid in helping obtain the “permit
approvals necessary to construct the project” only after the
approval of the FEIS. In other words, AES has a “financial
. . . interest in the outcome of the project” per 40 C.F.R.
§ 1506.5(c).
However, Colusa fails to allege that any financial stake
AES has in aiding with permit approvals is significant.
46 CACHIL DEHE BAND V. ZINKE
Moreover, the agency made a factual determination that
there was no conflict of interest, and absent proof that this
finding lacks substantial evidence to support it, the court
should defer to the agency’s factual determination. Markair,
Inc. v. Civil Aeronautics Bd., 744 F.2d 1383, 1385 (9th Cir.
1984).
Furthermore, a contractor’s technical conflict of interest
does not lead to the automatic invalidation of an FEIS or
ROD. Rather, the Court “can evaluate the oversight that the
agency provided to the [EIS] process as a factual matter and
make a determination upholding the [EIS].” Ass’ns Working
for Aurora’s Residential Env’t v. Colo. Dep’t of Transp.,
153 F.3d 1122, 1129 (10th Cir. 1998).
Colusa argues that three pieces of evidence demonstrate
that the BIA failed to exercise sufficient independent
oversight over the project. First, Colusa cites to “[Interior’s]
failure to require a sufficiently broad analysis of
alternatives.” But, as we have already found, the alternatives
selected were facially reasonable, and Colusa provides no
specific argument explaining why they are not. Second,
Colusa argues that the Interior’s “acceptance of pure
guesswork as to the impacts on Colusa” of the proposed
project shows a lack of supervision over the project.
However, Colusa’s alleged experience of a purely economic
harm is not cognizable under NEPA, so it is unclear how,
under NEPA, a failure properly to analyze that harm is
evidence of improper supervision of the NEPA process. In
any event, Colusa’s contention that the economic harm
analysis was “based on pure guesswork” is inaccurate:
Appendix M to the FEIS contains a rigorous economic
analysis. Finally, Colusa argues that the failure to require
AES to make a certification “under penalty of perjury”
demonstrates a failure of oversight. No such requirement for
CACHIL DEHE BAND V. ZINKE 47
a statement under penalty of perjury exists in the regulations.
The failure to include such a non-required statement proves
nothing.
Colusa has not presented any evidence that the BIA
failed to engage in adequate independent oversight over the
preparation of either the DEIS or the FEIS, or that the
“consulting services” AES may perform are in any way
significant. As a result, Colusa is incorrect that a technical
violation of the conflict of interest provision—if such a
violation occurred—mandates the withdrawal of the FEIS
and invalidation of the decade-plus long regulatory process.
If a violation is but “trivial,” it does “not give rise to any
independent cause of action.” 40 C.F.R. § 1500.3.
V.
For the above-stated reasons, we AFFIRM the decision
of the district court.