Stand Up for Cal. v. U.S. Dep't of the Interior

994 F.3d 616

STAND UP FOR CALIFORNIA!, et al., Appellants

v.UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Appellees

No. 19-5285

United States Court of Appeals, District of Columbia Circuit.

Argued November 9, 2020

Decided April 16, 2021

Rehearing En Banc Denied June 11, 2021

Jennifer A. MacLean argued the cause for appellants. With her on the briefs was Benjamin S. Sharp, Washington, DC.

Brian C. Toth, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, and Mary Gabrielle Sprague, Attorney.

Jessica L. Ellsworth argued the cause for appellee Wilton Rancheria, California. With her on the brief was Benjamin A. Field. Neal K. Katyal, Washington, DC, entered an appearance.

Before: Garland^* , Pillard and Wilkins, Circuit Judges.

Wilkins, Circuit Judge:

This appeal comes after a seven-year effort by the Department of the Interior ("Department") to acquire land in trust on behalf of the Wilton Rancheria ("Wilton" or "Tribe") to build a casino. After the Department finalized the acquisition of a parcel of land in Elk Grove, California, Stand Up for California! ("Stand Up"), Patty Johnson, Joe Teixeira, and Lynn Wheat (collectively "Appellants") sued the Department. They brought a litany of claims, including claims that the Department (1) impermissibly delegated the authority to make a final agency action to acquire the land to an official who could not wield this authority, (2) was barred from acquiring land in trust on behalf of Wilton's members, and (3) failed to adhere to its National Environmental Protection Act obligations when it selected the Elk Grove location. Appellants and the Department cross-moved for summary judgment, and the District Court granted the Department's motions on all counts. For the reasons set forth below, we affirm the District Court.

I.

The Wilton Rancheria is an Indian tribe based in the Sacramento area.¹ Wilton's members are descendants of Miwok and Niensen speakers. As with its general policy regarding tribal sovereignty, the federal government's approach to Wilton has gone through "drastic fits and starts," vacillating "between coercing assimilation and encouraging tribal self-government." Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law , 78 CALIF. L. REV. 1137, 1138 (1990). Wilton was first federally recognized in 1927, when Congress initiated a program that provided land to Indians who were not on reservations. After Congress passed the Indian Reorganization Act in 1934, Wilton adopted a constitution.

In 1958, however, Congress disestablished Wilton and forty other reservations through the California Rancheria Act ("Rancheria Act"). Pub. L. No. 85–671, 72 Stat. 619 (1958). The Rancheria Act directed the Secretary of the Interior ("Secretary") to dissolve the trusts in which the Secretary held land for forty-one rancherias and tribes, including Wilton, and to distribute the assets. The Secretary was directed to consult with the affected tribes and prepare a plan to distribute the assets or to sell the assets and distribute the profits to the affected tribes’ members. Pursuant to this mandate, the Secretary terminated the government-to-government relationship with Wilton and began consultations with the Tribe's members to transfer federal land trust ownership to individual fee ownership. In 1959, the Department approved a distribution plan that would terminate the federal trusteeship of the Tribe, distribute the assets to the Tribe's members, and revoke the Tribe's constitution and bylaws. Once the Tribe's assets had been distributed, the distribution agreement stipulated that the Tribe's members were no longer entitled to the federal government's services because of their status as Indians. In 1964, the Department announced in the Federal Register that the Wilton Tribe's members were no longer entitled to services reserved for Indians. Termination of Federal Supervision , 29 Fed. Reg. 13,146 (Sept. 15, 1964).

In 1979, members of several California rancherias, including Wilton members, brought a class action against the Department for unlawfully terminating the federal government's trust relationship with their tribes. Four years later, the government settled and "agree[d] to ‘restore[ ] and confirm[ ]’ Indian status for some who had lost it" pursuant to the Rancheria Act, including seventeen tribes that had lost their tribal status under the Act. Stand Up for California! v. U.S. Dep't of Interior , 879 F.3d 1177, 1184 (D.C. Cir. 2018) (quoting Stipulation for Entry of Judgment, Hardwick , No. C-79-1710-SW, ¶¶ 2–4 (Aug. 3, 1983)). But Wilton was excluded from the settlement agreement because the district court mistakenly concluded that "[n]o class member from [Wilton] currently owns property within the original rancheria boundaries." Wilton Miwok Rancheria v. Salazar , 2010 WL 693420, at *2 (N.D. Cal. Feb. 23, 2010) (quoting Certificate of Counsel re Hearing on Approval of Settlement of Class Actions, Hardwick , No. C-79-1710-SW (Nov. 16, 1983)).

Almost forty years later, members of the Tribe sued the Department, seeking federal recognition of the Wilton Rancheria and the acquisition of certain land into trust by the government on the Tribe's behalf. Id. at *3. Two years later, the Tribe and the government entered into a settlement agreement. The Department acknowledged that "the United States failed to comply with the Rancheria Act in terminating the Wilton Rancheria and distributing its assets." Id. The Department thus recognized that the Tribe was not lawfully terminated. The Department also agreed to restore federal recognition of the Tribe and to "accept in trust certain lands formerly belonging to" Wilton. Id. at *3. In June 2009, the district court in California entered the settlement agreement as a stipulated judgment. After the case settled, the Department published notice of the restoration of Wilton's status as a federally recognized tribe. Since then, the Wilton Rancheria has been listed on the Department's annual list of federally recognized tribes.

In 2013, Wilton petitioned the Department to acquire land in trust on the Tribe's behalf so that it could build a casino. The Tribe proposed a 282-acre plot near Galt, California. Pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 – 4347, the Department began the process to assess the environmental effect a casino would have. After soliciting public comment, the Department published a scoping report for its environmental impact statement ("EIS"). The scoping report identified seven alternatives for the land acquisition, including a 30-acre parcel in Elk Grove and the Galt site, which the report described as Wilton's "proposed action," see 40 C.F.R. § 1502.14 ; 43 C.F.R. § 46.30, but it did not identify a preferred alternative. See 43 C.F.R. § 46.420(d) (defining the "preferred alternative" as the alternative that the agency "believes would best accomplish the purpose and need of the proposed action while fulfilling its statutory mission and responsibilities, giving consideration to economic, environmental, technical, and other factors"). Two years later, the Department published the draft EIS, where it considered the alternatives in detail. It then held a public hearing on the draft EIS. At the hearing, multiple parties—including one of the plaintiffs in this litigation—spoke in favor of the Elk Grove location. Following the hearing, Wilton changed its preference and submitted a request that the Department acquire the Elk Grove location rather than the Galt location.

In November 2016, the Department requested comment from interested parties about a potential casino in the Elk Grove location. The list of notified parties included the State of California, the City of Elk Grove, and Stand Up. Stand Up responded that transferring title to the Elk Grove location would moot multiple pending state-court challenges seeking to prevent the acquisition and urged the Department to delay title transfer. The Department denied Stand Up's request. The Department then published its final EIS, which identified the Elk Grove location as the preferred alternative.

On January 19, 2017, the Department issued a Record of Decision ("ROD") that constituted the final agency action to acquire the Elk Grove location in trust on Wilton's behalf. Lawrence Roberts—the Principal Deputy Assistant Secretary–Indian Affairs—signed the ROD pursuant to delegated authority. Roberts had served as Acting Assistant Secretary–Indian Affairs ("AS–IA"), but after his acting status lapsed pursuant to the Federal Vacancies Reform Act ("FVRA"), Roberts continued to exercise the non-exclusive functions and duties of the AS–IA. The same day Roberts issued the ROD, then-Deputy Secretary Michael Connor had issued a memorandum ("Connor Memorandum") that sought to clarify that Roberts was exercising non-exclusive functions and duties of the AS–IA. On February 10, the Department acquired title to the Elk Grove location. Michael Black, who had assumed the role of Acting AS–IA in the new presidential administration, signed off on this acquisition after denying Stand Up's administrative appeal for a stay pending judicial review.

Appellants brought this lawsuit prior to the issuance of the Department's ROD and sought a temporary restraining order, which the District Court denied. Appellants’ lawsuit alleged, inter alia , that (1) the FVRA and Department regulations precluded the Principal Deputy from exercising the authority to sign off on the ROD acquiring the Elk Grove land in trust; (2) Principal Deputy Roberts was acting without authority when he acquired the title in trust for the Tribe; (3) the Department could not acquire land in trust on behalf of Wilton's members pursuant to the Rancheria Act; and (4) the Department violated NEPA and the APA by failing...