Argued and Submitted, San Francisco, California April 8, 2014
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of California. D.C. No. 3:11-cv-01493SC. Samuel Conti, Senior District Judge, Presiding.
The panel affirmed the district court's judgment in favor of the federal government insofar as it upheld the Secretary of the Interior's denial of the application of Redding Rancheria (the Tribe) to operate multiple casinos on restored lands, and reversed in part and remanded to the agency for consideration of the Tribe's proposal to close its existing Tribal gaming operation upon construction of a new facility.
The Secretary denied the Tribe's request to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Indian Gaming Regulatory Act generally banned gaming on lands that tribes acquired after its enactment in 1988, but created an exception for tribes with restored lands. The agency denied the Tribe's application because, at the time it was submitted, the Tribe was operating a modest casino on land it acquired earlier. The district court granted summary judgment to the government because the Tribe was seeking to operate multiple casinos, which the applicable regulations sought to prevent. While the application was pending, the Tribe advised the agency that it was willing to close down its original casino once the new one was in operation.
The panel held that the regulation at issue was reasonable, and the Secretary reasonably implemented the restored lands exception. The panel further held that the Indian canon (which provides that where a statute is unclear, it must be liberally interpreted in favor of Indians) did not apply in the circumstances of this case. The panel also held that the Secretary's denial of the Tribe's application was not inconsistent with prior agency practice, and was not arbitrary and capricious.
The panel held that the agency should have considered the Tribe's alternative offer to move all gaming to the new casino, and vacated in part the district court's summary judgment with instructions to remand to the agency to address the issue.
Judge Callahan concurred in parts I, II, and III of the majority's opinion; and agreed that the regulation at issue was reasonable, the Indian canon did not apply, and there was no unexplained change in agency policy. Judge Callahan dissented from part IV of the opinion because the Tribe did not fairly prompt the Secretary to consider its alleged offer to move its casino and did not ask the district court to consider the alleged offer to remove the casino. Judge Callahan would not reverse in part and remand for further consideration.
Scott D. Crowell (argued) and Scott Wheat, Crowell Law Offices, Spokane, Washington, for Plaintiff-Appellant Redding Rancheria.
Ignacia S. Moreno, Assistant Attorney General, Matthew Marinelli and Lane N. McFadden (argued), Attorneys, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees Sally Jewell, Secretary of the Department of the Interior and Kevin K. Washburn, Assistant Secretary for Indian Affairs.
George Forman and Jay B. Shapiro, Forman & Associates, San Rafael, California, for Amicus Curiae Robinson Rancheria of Pomo Indians.
Before: Mary M. Schroeder, Kermit Victor Lipez[**], and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Schroeder; Partial Concurrence and Partial Dissent by Judge Callahan.
SCHROEDER, Senior Circuit Judge:
The Redding Rancheria (" the Tribe" ) is a very small Indian tribe trying to restore the Reservation that was taken away by the United States during the mid-Twentieth century era of assimilation. See City of Roseville v. Norton, 348 F.3d 1020, 1022, 358 U.S.App.D.C. 282 (D.C. Cir. 2003); see also William C. Canby, American Indian Law in a Nutshell 27-30 (5th ed. 2009) (describing the federal government's general policy of terminating tribal recognition in order to assimilate Indian populations); Felix S. Cohen, Federal Indian Law § 1.06 (2005) (noting that, starting in the 1950s, the federal government began an official " policy of rapid assimilation through termination" ). The Tribe also wishes to establish a successful gaming operation on its land. For that purpose, it has asked the Department of the Interior to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Secretary of the Interior (" Secretary" ) denied the request.
The Indian Gaming Regulatory Act (" IGRA" ) generally bans gaming on lands that tribes acquire after its enactment in 1988, but creates an exception for tribes with restored lands. 25 U.S.C. § 2719. This case concerns the regulations the Secretary of the Interior has promulgated to define and place reasonable limits on the restored lands exception. The agency found the Tribe's application did not qualify because, at the time it was submitted, the Tribe was operating a modest casino on land that it acquired earlier. The district court granted summary judgment for the government because the Tribe was seeking to operate multiple casinos, something the applicable regulations unquestionably and reasonably are intended to prevent. While the application was pending before the agency, however, the Tribe advised the agency that it was willing to close down its original casino once the new one was in operation. The agency did not meaningfully address the Tribe's alternative position. We remand to the agency so that it can do so.
The Redding Rancheria was first recognized by the United States in 1922, with a reservation of about 30 acres located in rural Northern California. In 1965, however, it was stripped of its federal recognition pursuant to the California Rancheria Act, Pub. L. No. 85-671, 72 Stat. 619 (1958). The act was part of a general effort to assimilate Indians into American society. See City of Roseville, 348 F.3d at 1022. The Tribe eventually joined other California tribes in bringing suit against the United States, see Hardwick v. United States, No. C-79-1710 (N.D. Cal. Dec. 22, 1983), and as part of a resulting settlement, tribal federal recognition was restored in 1984.
The Tribe then embarked on a series of acquisitions to restore lands to its reservation, and, per its request, each has been taken into trust by the United States, for a total of about 8.5 acres. Roughly 2.3 acres were taken into trust for individual tribe members as part of the settlement agreement in Hardwick. The United States accepted the Tribe's trust-to-trust transfer request for these parcels in 1992, and the Tribe began operating a small casino, known as the Win-River Casino, on the 2.3 acre parcel after entering into a gaming compact with the state of California in 1999. The Tribe has since submitted several additional land requests. The first, begun in 1996, was for a Head Start facility,
and the application was not completed and accepted until 2009. Another application, submitted in 2000 and also accepted in 2009, was for a burial ground of .5 acres. In 2010, an application for administrative buildings was accepted. According to the Tribe, its land restoration efforts have often been hampered by lack of funds and the unavailability of nearby land.
In 2003, the Tribe submitted a request to the Department of the Interior to take into trust an additional 152 acres (" the Strawberry Fields" ), so the Tribe could construct another casino. After the Tribe submitted a completed application on December 22, 2008, it amended the application in July of 2010 to include an additional 80 acres. Shortly before the Secretary denied the application, the Tribe wrote a letter to the agency, dated December 14, 2010, stating the Tribe was willing to close its current gaming facilities once its new facility was built. The Secretary denied the Tribe's application on December 22, 2010, finding that, under the applicable regulations, the Tribe could not conduct gaming on newly acquired lands because it was already gaming on other lands.
The key statute governing the Tribe's gaming activities is the portion of IGRA that covers " restored" tribes. Congress passed IGRA in 1988 " as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments." 25 U.S.C. § 2702. IGRA permits Indian tribes to conduct gaming on tribal lands subject to certain limitations. Section 2719(a) prohibits tribes from gaming on lands taken into trust after IGRA's 1988 passage date, but that section includes Exemptions and Exceptions. Of relevance is section 2719(b)(1)(B), which allows restored tribes to game on any land taken into trust as part of a " restoration of lands" (the " restored lands exception" ). There is no dispute that the Tribe is a " restored tribe" within the meaning of the statute. The issue is whether the land in question is " restored land."
To define and place reasonable limits on the exceptions, the Secretary of the Interior, in 2008, promulgated a series of rules implementing section 2719 of IGRA. 25 C.F.R. § 292.12. The purpose of these rules was to " explain to the public how the Department interprets" IGRA's various exceptions and exemptions, including the restored lands exception. 73 Fed. Reg. 29,354. Under the Secretary's interpretation, lands qualify as " restored" and can thus be used for gaming purposes only if the tribe establishes a sufficient relationship to the land in what the regulations term " modern," " historical," and " temporal" connections to the Tribe's original land. 25 C.F.R. § 292.12. At issue here is only the temporal connection. A tribe can demonstrate a " temporal" connection in one of two ways:
(1) The land is included in the tribe's first request for newly acquired lands since the tribe was restored to Federal recognition; or
(2) The tribe submitted an application to take the land into trust within 25 years after the tribe was restored to Federal recognition and the tribe is not gaming on other lands.
25 C.F.R. § 292.12(c) (emphasis added). The Strawberry Fields were not included in the Tribe's first request for newly acquired lands, so subsection (1) does not apply. The application was filed within 25 years of recognition, but because of the last proviso of subsection (2), the Win-River Casino became the stumbling block. The Tribe was operating a casino on other lands.
The application remained pending for more than seven years. Then the Tribe, on December 14, 2010, wrote to the Secretary to advise that it would close the Win-
River Casino when the new casino was completed. Eight days later, the Secretary denied the application, stating that " [b]ecause the Tribe cannot meet the standards articulated in Section 292, the Parcels are not eligible for the restored lands exception." The denial did not address the Tribe's December 14 letter proposing to close the Win-River Casino.
The Tribe then brought suit in the Northern District of California, challenging the Secretary's determination that the Strawberry Fields are not covered by the restored lands exception. The Tribe argued that the regulation's limitation on operating a second casino was unreasonable. The court granted summary judgment in favor of the Secretary, concluding that the Secretary had the power to promulgate regulations under IGRA, that the Secretary's interpretation of the restored lands exception was reasonable, and that the Secretary did not act arbitrarily and capriciously in denying the ...