JEFFREY H. WOOD Acting Assistant Attorney General DEDRA S. … · 2019-02-14 · DEDRA S. CURTEMAN,...

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JEFFREY H. WOOD Acting Assistant Attorney General REBECCA M. ROSS, Trial Attorney (AZ #028041) [email protected] DEDRA S. CURTEMAN, Trial Attorney (IL #6279766) [email protected] Environment and Natural Resources Division United States Department of Justice P.O. Box 7611, Washington, D.C. 20044 Tel: (202) 616-3148; Fax: (202) 305-0275 Attorneys for the United States

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

ANNE CRAWFORD-HALL et al., Plaintiffs, v. UNITED STATES OF AMERICA et al., Defendants.

CASE NO. 2:17-cv-1616-SVW UNITED STATES’ MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT Honorable Stephen V. Wilson United States District Judge

Pursuant to Fed. R. Civ. P. 56 and the Administrative Procedure Act, 5 U.S.C. §§ 701-06, Federal Defendants the United States of America et al. (“United States”) respectfully submit this Memorandum in support of their Motion for Summary Judgment.

Case 2:17-cv-01616-SVW-AFM Document 51-1 Filed 07/06/18 of 32 Page ID #:803

i United States’ Memorandum in Support of Summary Judgment 2:17-cv-01616-SVW

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... ii INTRODUCTION .................................................................................................... 1 STATEMENT OF UNCONTROVERTED FACTS ................................................. 2 STANDARD OF REVIEW ....................................................................................... 6 ARGUMENT ............................................................................................................ 7

I. Interior Complied With All Regulatory Requirements .................................... 7 A. Legal Background. ..................................................................................... 7

i. Indian Reorganization Act................................................................. 7 ii. Interior Regulations ........................................................................... 7

B. BIA Adequately Analyzed All Regulatory Factors.................................... 8

II. BIA Complied with NEPA ........................................................................... 13 A. BIA’s Determination of No Significant Environmental Effects

Was Reasonable. ....................................................................................... 13 B. BIA Properly Reviewed Alternatives, Addressed Opposing

Viewpoints, and Circulated a Draft EA.................................................... 18 C. BIA Appropriately Considered Mitigation .............................................. 19 D. Supplementation Is Not Required ............................................................ 21

III. The 2017 Decision was Final for Interior When Issued .............................. 21 A. The Federal Vacancies Reform Act Permits Delegation of the

Non-Exclusive Functions and Duties of the Assistant Secretary. ............ 22 B. PDAS Roberts Possessed the Delegated Authority to Exercise

the Non-Exclusive Functions and Duties of the Assistant Secretary Beyond 210 Days ..................................................................................... 23

C. PDAS Roberts Issued the 2017 Decision As An Exercise of the Non-Exclusive Functions and Duties of the Assistant Secretary ..................... 24

CONCLUSION ........................................................................................................ 25


ii United States’ Memorandum in Support of Summary Judgment 2:17-cv-01616-SVW

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TABLE OF AUTHORITIES

Federal Cases All. For the Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir. 2017) ..........................14 All. to Protect Nantucket Sound, Inc. v. U.S. Dep’t. of Army,

398 F.3d 105 (1st Cir. 2005) ............................................................................19 Arizona v. Thomas, 824 F.2d 745 (9th Cir. 1987) ..................................................... 6

Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938 (9th Cir. 2008) ............................................................................19

Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584 (9th Cir. 2018) .............................................................................. 9

Camp v. Pitts, 411 U.S. 138 (1973) ........................................................................... 6 Capay Valley Coal. v. Jewell, No. 2:15-CV-02574, 2017 WL 4124182 (E.D. Cal. Sept. 15, 2017) .............10 Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) ................................. 6 City of Arlington v. F.C.C., 569 U.S. 290 (2013) ....................................................24

City of Lincoln City v. U.S. Dep’t of Interior, 229 F. Supp. 2d 1109 (D. Or. 2002) ...........................................................9, 10

City of Yreka v. Salazar, No. 2:10-CV-1734, 2011 WL 2433660 (E.D. Cal. June 14, 2011) ..............8, 9

Cty. of Amador v. U.S. Dep’t of Interior, 872 F.3d 1012 (9th Cir. 2017) ...............24

Cty. of Charles Mix v. U.S. Dep’t of Interior, 799 F. Supp. 2d 1027 (D.S.D. 2011) ..............................................................10

Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992) .......................................................................................... 7

Davis v. EPA, 348 F.3d 772 (9th Cir. 2003) .............................................................. 6

Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) ........................................................... 13, 20, 21

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ........................................... 6 Fund for Animals, Inc. v. Rice, 85 F.3d 535 (11th Cir. 1996) .................................19


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Half Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505 (9th Cir. 1988) .........................................................................16

Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550 (9th Cir. 2016) ...........24 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) ................. 6 Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002) ......................14 Loma Linda Univ. v. Schweiker, 705 F.2d 1123 (9th Cir. 1983) .............................23 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) .............................................14 Mich. Gambling Opposition v. Kempthorne,

525 F.3d 23 (D.C. Cir. 2008) .........................................................................21 Morton v. Mancari, 417 U.S. 535 (1974) .................................................................. 7 Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir. 2012)............ 14, 16 Occidental Eng’g Co. v. INS, 753 F.2d 766 (9th Cir. 1985) ..................................... 6

Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084 (9th Cir. 2012) .......................................................................19

N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) .......................................................................17

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108 (9th Cir. 2007) ......................................................... 6

River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) .................. 6 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)......................20

Rohnert Park Citizens to Enforce CEQA v. U.S. Dep't of Transp., 385 F. App’x 759 (9th Cir. 2010) ........................................................... 16, 17

San Joaquin River Grp. Auth. v. Nat’l Marine Fisheries Serv., 819 F. Supp. 2d 1077 (E.D. Cal. 2011) ........................................................... 2

Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025 (9th Cir. 2012) ............... 6

Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389 (D. Conn. 2008) .................................................... 23, 25

Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132 (2d Cir. 2009) ................................................................... 23, 24 South Dakota v. U.S. Dep’t of Interior, 314 F. Supp. 2d 935 (D.S.D. 2004) ..........10


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South Dakota v. U.S. Dep’t of Interior, 401 F. Supp. 2d 1000 (D.S.D. 2005) ........10 South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790 (8th Cir. 2005) ................9, 10

Stand Up for Cal.! v. U.S. Dep’t of Interior, 298 F. Supp. 3d 136 (D.D.C. 2018) .................................................. 22, 23, 24

Tillamook Cty. v. U.S. Army Corps of Eng’rs, 288 F.3d 1140 (9th Cir. 2002) .......................................................................20

TOMAC, Taxpayers of Mich. Against Casinos v. Norton 433 F.3d 852 (D.C. Cir. 2006) ................................................................ 17, 21

U.S. Telecom Ass’n v. FCC, 359 F.3d 554 (D.C. Cir. 2004) ...................................23

Constitutional Provisions U.S. Const., art. II, § 2, cl. 2 ....................................................................................22

Federal Statutes

5 U.S.C. § 301 ................................................................................................... 24, 25 5 U.S.C. § 706(2)(A) .................................................................................................. 6 5 U.S.C. § 3345 ........................................................................................................22 5 U.S.C. § 3346 ........................................................................................................22 5 U.S.C. § 3348 ........................................................................................................23 5 U.S.C. §§ 701-06..................................................................................................... 1 25 U.S.C. § 2 ..................................................................................................... 24, 25 25 U.S.C. § 9 ..................................................................................................... 24, 25 25 U.S.C. § 2103(d) .................................................................................................24 25 U.S.C. § 5108 ........................................................................................................ 7 25 U.S.C. § 5110 ........................................................................................................ 7 25 U.S.C. § 5123 ........................................................................................................ 7 25 U.S.C. § 5124 ........................................................................................................ 7 42 U.S.C. § 4321 ......................................................................................................13 42 U.S.C. § 4332(2)(C) ............................................................................... 13, 14, 16


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42 U.S.C. §§ 4321-4347 ......................................................................................3, 13 43 U.S.C. § 1453 ......................................................................................................22 43 U.S.C. § 1453(a) .................................................................................................22 43 U.S.C. § 1454 ......................................................................................................22 43 U.S.C. § 1457 ............................................................................................... 24, 25 Reorg. Plan No. 3 of 1950, 64 Stat. 1262 (eff. May 24, 1950) ...............................22

Federal Regulations

25 C.F.R. Part 2 ........................................................................................................25 25 C.F.R. Part 151 ...................................................................................................... 7 25 C.F.R. § 2.20 ......................................................................................................... 5 25 C.F.R. § 2.20(c)(2) ..............................................................................................25 25 C.F.R. § 2.3 ........................................................................................................... 5 25 C.F.R. § 2.4 .........................................................................................................25 25 C.F.R. § 151.3 ....................................................................................................... 8 25 C.F.R. § 151.3(a)(3) .............................................................................................. 8 25 C.F.R. § 151.10 ..................................................................................................... 8 25 C.F.R. § 151.10(a) ................................................................................................. 7 25 C.F.R. § 151.10(b) ................................................................................................ 9 25 C.F.R. § 151.10(c) ................................................................................................. 9 25 C.F.R. § 151.10(e) ...............................................................................................10 25 C.F.R. § 151.10(f) ...............................................................................................10 25 C.F.R. § 151.10(g) ..............................................................................................12 25 C.F.R. § 151.10(b)-(d) .......................................................................................... 8 25 C.F.R. § 151.10(f)-(h) ........................................................................................... 8 25 C.F.R. § 151.10-11 ................................................................................................ 5 25 C.F.R. § 151.11 ...................................................................................................12


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25 C.F.R. § 151.11(b) ..............................................................................................12 25 C.F.R. § 151.11(c) ...............................................................................................12 25 C.F.R. § 151.11(b)-(c) ........................................................................................... 8 40 C.F.R. § 1501.4(b) ..............................................................................................13 40 C.F.R. § 1501.4(e)(2) ..........................................................................................19 40 C.F.R. § 1502.9(c) ...............................................................................................21 40 C.F.R. § 1502.9(c)(1) ..........................................................................................21 40 C.F.R. § 1508.9 ...................................................................................................13 40 C.F.R. § 1508.9(a)(1) ..........................................................................................13 43 C.F.R. § 4.312 .....................................................................................................25 43 C.F.R. § 4.330 ....................................................................................................... 5 43 C.F.R. § 4.5(a)(1) ................................................................................................25 43 C.F.R. § 46.305(b), (c) ........................................................................................19

Federal Publications

42 Fed. Reg. 53,682-02 (Oct. 3, 1977) ....................................................................22


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INTRODUCTION Limited by a geographically-constrained Reservation that can only provide

housing for approximately 17% of its members, in 2010 the Santa Ynez Band of Chumash Mission Indians (“Tribe”) acquired approximately 1,400 acres of unincorporated land in Santa Barbara County, California (“Property”) to pursue a housing development that would better accommodate its tribal community. The Property is located less than two miles from the Tribe’s existing Reservation. The Tribe requested, in 2013, that the United States Bureau of Indian Affairs (“BIA”) acquire the Property in trust pursuant to a statute enacted over eighty years ago that expressly sought to promote tribal self-government through communal land ownership. After an exhaustive public administrative process, BIA approved the Tribe’s request. Several parties, including Plaintiffs Anne Crawford-Hall et al., filed administrative appeals of BIA’s decision. Thereafter, former Principal Deputy Assistant Secretary – Indian Affairs Lawrence Roberts (“PDAS Roberts”), acting pursuant to properly delegated authority, affirmed BIA’s decision, making it final for the United States Department of the Interior (“Interior”).

Plaintiffs contend that Interior violated the Administrative Procedure Act (“APA”), the Federal Vacancies Reform Act, the National Environmental Policy Act (“NEPA”), and Interior regulations in the course of its decision-making. Plaintiffs further assert that the Property is “regulation-free” now that it is subject to tribal and federal jurisdiction. Plaintiffs are wrong on all counts. Interior fully complied with all statutory and regulatory requirements in connection with the Tribe’s request to acquire the Property in trust. BIA undertook a methodic and detailed NEPA analysis over a three-year period and ultimately produced a draft Environmental Assessment (“EA”), a Final Environmental Assessment (“Final EA”) and a Finding of No Significant Impact (“FONSI”). BIA analyzed the reasonably foreseeable impacts stemming from the trust acquisition with the necessary scrutiny under NEPA by considering the purpose and need for the



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proposed development, evaluating a reasonable range of alternatives, the potential environmental effects of those alternatives, and mitigation as required either by the project design itself; federal, tribal, or local law; or pursuant to agreements reached between the Tribe and the County. Ultimately—after considering and addressing public comments and assessing the potential impact—BIA properly concluded that proposed development of the Property would result in no significant impacts. And, not only did BIA properly decide to acquire the Property in trust for the Tribe, PDAS Roberts, consistent with federal law, properly issued a final decision affirming BIA’s findings over Plaintiffs’ objections. The Court should thus grant the United States’ Motion for Summary Judgment on Plaintiffs’ First, Third, and Fourth Claims for Relief—the only claims that remain in Plaintiffs’ Complaint1—and deny Plaintiffs’ Motion for Summary Judgment.

STATEMENT OF UNCONTROVERTED FACTS2 Defendants hereby submit the following statement of uncontroverted facts,

with corresponding citations to the Administrative Record (“AR”).3 1 On May 31, 2018, this Court dismissed with prejudice Plaintiffs’ Second and Fifth Claims for Relief. See Dkt. No. 49. 2 Because review is limited to the record, courts have held that the submission of factual statements in APA cases is “generally redundant because all relevant facts are contained in the agency’s administrative record.” San Joaquin River Grp. Auth. v. Nat’l Marine Fisheries Serv., 819 F. Supp. 2d 1077, 1084 (E.D. Cal. 2011). 3 The AR lodged in this suit is comprised of two DVDs. The first DVD contains the record for the 2014 NOD, consisting of PDFs numbered AR0001.pdf through AR0257.pdf in which each page is Bates numbered. A PDF index is included. The second DVD contains the record for the 2017 Decision. Documents in such record can be accessed via the Microsoft Excel Index included on the DVD, which includes hyper-linked Bates numbers on the left-hand column linking to each document reference. These documents have Bates prefix “AR0258” and individual page numbers are stamped as AR0258.00001, AR0258.00002, etc. The 2014 NOD appears in the AR several times; this brief refers to the copy at AR0258.00775-810. Pin cites herein omit the preceding zeros in the Bates stamp (e.g., “AR0258.00775” is cited herein as “AR0258.775”).



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On June 27, 2013, the Tribe submitted an initial application to BIA to acquire the Property in trust, which it supplemented in July 2013, see AR0030; AR0032, and revised in November 2013, see AR0080.4 The Tribe sought to have the Property placed in trust to facilitate the construction of much needed housing, further the Tribe’s goal of revitalizing the tribal community, and support the Tribe’s self-determination and self-government goals. AR0258.794-95.

As part of its consideration of the trust acquisition, BIA conducted an extensive environmental review pursuant to NEPA, 42 U.S.C. §§ 4321-4347. BIA prepared a draft EA in August 2013, and made the EA available for public comment for a thirty-day period. AR0194.8. After several extensions, BIA made the EA available for public comment for a total of 90 days. AR0194.8, 12.

BIA issued its Final EA, a nearly 2,000-page document that analyzed the potential effects of the trust acquisition, in May 2014. AR0194.1. In its analysis, BIA considered the purpose and need “to provid[e] necessary housing within the Tribe’s ancestral and historic territory for its current members and future generations” and “protect the Tribe’s heritage and culture by ensuring existing and future generations are afforded the ability to live under tribal governance as a community within the Tribe’s ancestral and historic land holdings.” AR0194.14.

BIA considered three alternatives—Alternative A, B, and C—and analyzed the reasonable foreseeable potential environmental consequences and potential cumulative impacts for the various alternatives (AR0194.17-35; AR0194.120-193; AR0237.5-6). Alternative A included 143 five-acre lots for residential housing on approximately 793 acres, and included 206 acres of vineyards, 300 acres of open

4 In June 2013, BIA had approved the Tribe’s “Land Consolidation and Acquisition Plan,” sometimes referred to as the “Tribal Consolidation Area” or “TCA Plan,” and the Tribe’s original application referenced such plan. After the Tribe withdrew its TCA Plan, the Tribe submitted a revised application reflecting that the TCA Plan had been withdrawn and thus would not be factored into BIA’s consideration of the Tribe’s application going forward. AR0080.



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space/recreational area, 98 acres of riparian corridor and 33 acres of oak woodland conservation, and three acres of Special Purpose Zone-Utilities. AR0194.120-153; AR0237.5. Alternative B included 143 one-acre lots for residential housing on approximately 194 acres, and included 869 acres of open space/recreational area, 30 acres of tribal facilities, and the same acreages of vineyard, riparian corridor and oak woodland conservation, and utilities land uses as proposed in Alternative A. AR0194.153-172; AR0237.5. Alternative C, the “no action alternative,” considered impacts if the Property was not acquired in trust. AR0194.173-175; AR0237.6. BIA then compared the alternatives, and noted that while Alternatives A and B met the Tribe’s objectives of obtaining lands under tribal jurisdiction with the Tribe’s ancestral territory, Alternative B would result in additional beneficial socioeconomic impacts through the development of additional tribal facilities. AR0194.35. With respect to the “no action alternative,” BIA determined that while the alternative would not pose the potential environmental effects discussed in connection with Alternatives A and B, the alternative would increase groundwater use and would not meet the Tribe’s goal of providing housing for its tribal community. Id.

BIA then considered mitigation measures for the proposed trust acquisition, including the use of temporary erosion control measures for disturbed areas during the wet season (AR0194.194); the disallowance of turf grass irrigation to reduce residential lawn water demand (id. 196); the assurance that vehicles do not sit idle for more than five minutes to reduce potential adverse impacts to air quality (id. 196-97); the imposition of habitat sensitivity training for project contractors and personnel (id. 198); the use of buffer zones around cultural resources (id. 200); and Tribal monetary contributions for traffic improvements (id. 201). See generally AR0194.194-204.

On October 17, 2014, BIA issued its FONSI, concluding that the proposed federal action to approve the Tribe’s request to acquire the Property in trust for the



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purpose of developing up to 143 one-acre lots of tribal housing and associated facilities did not constitute a major federal action that would significantly affect the quality of the human environment, and thus, the preparation of an EIS was not required. AR0237.22.

On December 24, 2014, BIA Regional Director Dutschke, acting pursuant to authority delegated to her from the Secretary, and relying on the Final EA and FONSI, issued a Notice of Decision announcing the intent to acquire the Property in trust for the Tribe (“2014 NOD”). AR0258.72-100. The 2014 NOD was issued after the Regional Director evaluated the Tribe’s application under the applicable regulatory factors, see 25 C.F.R. § 151.10-11, and after consideration of comments received on the application from state and local government entities, as well as from the general public. AR0258.777-99.

Plaintiffs and other parties filed an administrative appeal of the 2014 NOD to the Interior Board of Indian Appeals (“IBIA”), an administrative appellate entity authorized to review decisions of BIA officials. See 25 C.F.R. § 2.3; 43 C.F.R. § 4.330. Pursuant to 25 C.F.R. § 2.20, former Assistant Secretary–Indian Affairs (“Assistant Secretary”) Kevin Washburn assumed jurisdiction over the administrative appeals of the 2014 NOD, pursuant to which the Assistant Secretary would decide the appeal. AR0258.816-823; AR0258.1432-1439. On December 31, 2015, while the administrative appeals of the 2014 NOD were pending, Mr. Washburn resigned from his position. As “first assistant” to the Assistant Secretary, former Principal Deputy Assistant Secretary–Indian Affairs (“PDAS”) Lawrence Roberts automatically assumed the position of Acting Assistant Secretary. After Mr. Roberts served as Acting Assistant Secretary for the maximum allowable period (i.e., 210 days), he reverted to his position as PDAS on July 29, 2016. Acting pursuant to delegated authority to issue final decisions in administrative appeals, on January 19, 2017, PDAS Roberts affirmed the 2014 NOD (“2017 Decision”). AR0258.3425-3466. The 2017 Decision was final for



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Interior when issued and not subject to further administrative review. AR0258.3466. BIA Regional Director Dutschke thereafter accepted title to the Property to place it in trust. This suit followed.

STANDARD OF REVIEW Summary judgment is appropriate in cases involving judicial review of

agency decision-making pursuant to the APA based upon an administrative record. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012). The Court’s role in this context is not to find facts, but instead “to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng’g Co. v. U.S. INS, 753 F.2d 766, 769 (9th Cir. 1985). See also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138, 142 (1973); Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007). The APA standard of review thus governs disposition of the parties’ respective cross-motions for summary judgment in this suit, and not the summary judgment standard typically applicable to non-APA civil cases. Under the APA, a court may set aside agency action only where it finds the action “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A); see also Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1035 (9th Cir. 2012). The “standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971); see also Davis v. EPA, 348 F.3d 772, 781 (9th Cir. 2003) (citing Arizona v. Thomas, 824 F.2d 745, 748 (9th Cir. 1987)). Thus, the APA “does not allow the court to overturn an agency decision because it disagrees with the decision or with the agency’s conclusions about environmental impacts.” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (per curiam) (citation omitted).



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ARGUMENT

I. Interior Complied With All Regulatory Requirements Plaintiffs advance a series of unsupported arguments contending that Interior failed to “adequately” consider the regulatory factors applicable to the Tribe’s application to acquire the Property in trust. Dkt. No. 1, ¶¶ 58, 61, 62, 68, 122-126. The 2014 NOD, the 2017 Decision, and the AR all demonstrate that BIA and PDAS Roberts thoroughly analyzed each regulatory requirement,5 and thus, the 2014 NOD and the 2017 Decision should be upheld.

A. Legal Background i. Indian Reorganization Act

Congress enacted the IRA in 1934 as part of the federal government’s return to supporting “principles of tribal self-determination and self-governance[.]” Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 255 (1992). This “sweeping” legislation was aimed to “establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.” Morton v. Mancari, 417 U.S. 535, 542 (1974). To that end, the IRA fosters tribal self-governance through the promotion of tribal communal land ownership. See, e.g., 25 U.S.C. § 5108 (authorizing Secretary to acquire land in trust for Indian tribes and individual Indians); id. § 5110 (authorizing Secretary to proclaim new Indian reservations); id. § 5123 (procedures allowing Indian tribes to adopt their own constitution or bylaws); id. § 5124 (procedures allowing Indian tribes to incorporate).

ii. Interior Regulations Interior has promulgated regulations governing the implementation of the Secretary’s authority to acquire land in trust for Indian tribes. See 25 C.F.R. Part

5 The Court dismissed Plaintiffs’ Second Claim for Relief, Dkt. No. 49, which challenged Interior’s determination, under 25 C.F.R. § 151.10(a), that it had the requisite authority to acquire the Property in trust for the Tribe.



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151. Interior may exercise its authority to acquire land in trust when the “acquisition of the land is necessary to facilitate . . . Indian housing.” 25 C.F.R. § 151.3(a)(3). After a trust acquisition application is received, the Secretary must notify state and local governments and invite them to submit written comments on the potential impacts on jurisdiction, taxes and assessments. Id. § 151.10. The Secretary then considers several factors when deciding whether to acquire the land in trust, including the tribe’s need for the land; the purposes for which it will be used; tax-related impacts to state and local governments; jurisdictional problems and potential conflicts of land use; whether BIA is equipped to discharge any additional responsibilities resulting from the trust status; and whether the tribe has submitted adequate environmental-related information. See id. § 151.10(b)-(d), (f)-(h); see also id. § 151.11(b)-(c) (off-reservation acquisition factors).

B. BIA Adequately Analyzed All Regulatory Factors Despite Plaintiffs’ allegations, Dkt. No. 1, ¶¶ 121-130, BIA fully complied with all regulatory requirements governing its review of the Tribe’s application to acquire the Property in trust. PDAS Roberts’ 2017 Decision upholding the 2014 NOD was thus eminently reasonable. As set forth below, BIA fully analyzed all regulatory factors and thus the 2014 NOD and the 2017 Decision should be upheld. Exercise of discretion. BIA may approve an application to acquire land in trust when, among other things, “the acquisition of the land is necessary to facilitate . . . Indian housing.” 25 C.F.R. § 151.3. The BIA need not conclude that the acquisition be “essential” to such goal, but it must be more than “merely helpful or appropriate” to meeting it. City of Yreka v. Salazar, No. 2:10-CV-1734, 2011 WL 2433660, at *7 (E.D. Cal. June 14, 2011). Here, BIA concluded the acquisition for housing was “an integral part of the Tribe’s efforts to bring tribal members and lineal descendants back” so that they could have a “meaningful opportunity” to help “rebuild[] tribal culture, customs and traditions.” AR0258.735. PDAS Roberts thus reasonably held in the 2017 Decision that the



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acquisition “falls squarely within the land acquisition policy of the IRA and the regulatory language of its implementing regulations.” AR0258.3440.6 Tribe’s need for the Property. BIA must consider the Tribe’s need for the Property under 25 C.F.R. § 151.10(b). BIA meets this requirement when it “‘express[es] the Tribe’s needs and conclude[s] generally that IRA purposes were served.’” Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 597 (9th Cir. 2018) (quoting South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 801 (8th Cir. 2005)). Here, BIA specifically detailed the geographical and other limitations of the Tribe’s Reservation, which precluded further development; discussed how providing adequate housing for its member and lineal descendants was “integral” to the Tribe’s community revitalization efforts; and further discussed how the acquisition would allow the Tribe to exercise “one of the most essential powers of any tribal government”—“the inherent right to govern its own lands.” AR0258.794-95. BIA not only explained why the Tribe needed the Property to accommodate its proposed housing development, it also explained how the acquisition would foster the goals of the IRA. See also AR0258.3439-41 (affirming on this factor). BIA complied with this requirement. Purposes for which the Property will be used. Under 25 C.F.R. § 151.10(c), BIA is entitled to rely on representations from the applicant Indian tribe concerning the proposed use of the land, and need not engage in speculation about potential future uses of the property. City of Yreka, 2011 WL 2433660, at *7; City of Lincoln City v. U.S. Dep’t of Interior, 229 F. Supp. 2d 1109, 1123-24 (D. Or. 2002). Plaintiffs’ assertion that BIA failed to “scrutinize” the Tribe’s stated purpose for the acquisition is belied by the 2014 NOD, AR0258.795-76 (discussing 6 Plaintiffs allege that BIA relied on aspects of the Tribe’s history in making this determination. Dkt. No. 1, ¶¶ 58-60. First, Plaintiffs’ allegations pertain to their Second Claim for Relief, which the Court dismissed. Second, BIA actually relied on the fact that the Tribe’s existing Reservation provided housing for only 17% of the Tribe’s membership and it could not be further developed. AR0258.735.



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tribal housing and other planned uses of the Property); the extensive Final EA analysis, AR0194 (discussing proposed development of the Property); and the 2017 Decision, AR0258.3441-42 (discussing proposed uses of the Property as supported by the AR and rejecting parties’ unsupported speculation about potential future uses of the Property). BIA complied with this requirement. Tax impacts. Under 25 C.F.R. § 151.10(e), BIA must consider tax impacts stemming from the removal of the Property from the tax rolls following its acquisition, but it is not required to resolve any conflicts found or to engage in speculative tax calculations to satisfy this requirement. City of Lincoln City, 229 F. Supp. 2d at 1125; South Dakota v. U.S. Dep’t of Interior, 314 F. Supp. 2d 935, 945 (D.S.D. 2004), aff’d, 423 F.3d 790 (8th Cir. 2005). BIA compared the amount of property taxes most recently assessed against the Property at the time against the amount of property taxes assessed by the County in the same year overall to conclude that the impact would be de minimis. AR0258.796; AR0258.3443-45. BIA did all that is required. See South Dakota v. U.S. Dep’t of Interior, 401 F. Supp. 2d 1000, 1008 (D.S.D. 2005).7 Jurisdictional and land use impacts. BIA more than adequately considered “jurisdictional problems and conflicts of land use” as required by 25 C.F.R. § 151.10(f). BIA need not resolve any conflicts identified; instead, BIA satisfies this requirement “as long as it ‘undertake[s] an evaluation of potential problems.” Cty. of Charles Mix v. U.S. Dep’t of Interior, 799 F. Supp. 2d 1027, 1046 (D.S.D. 2011); City of Lincoln City, 229 F. Supp. 2d at 1124. See also Capay Valley Coal. v. Jewell, No. 2:15-CV-02574, 2017 WL 4124182, at *4-5 (E.D. Cal. Sept. 15,

7 Plaintiffs contend that BIA failed to consider the tax “ramifications” stemming from the proposed development of the Property. Dkt. No. 1, ¶ 123. But BIA was not required to speculate about tax impacts in the event the Property was developed in fee, South Dakota, 314 F. Supp. 2d at 945, and BIA fully evaluated public resource impacts in the Final EA and as part of its consideration of other regulatory factors. BIA complied with 25 C.F.R. § 151.10(e).



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2017). The AR demonstrates that BIA fully evaluated and discussed, both in the 2014 NOD and the Final EA, the then-existing uses of the Property; the state and local land use restrictions applicable to the Property during that period; how the proposed development would or would not be compliant with state or local land use laws; how certain land use laws would be preempted by the acquisition of the Property in trust; how the State of California would continue to exercise criminal jurisdiction over the Property following its acquisition in trust; how the Tribe had entered into agreements with local government entities to offset impacts; and how the Tribe was committed to working with the County going forward. See 2014 NOD at AR0258.796-97; Final EA at AR0194.1700-02. BIA did all that is required.8 See also AR0258.3445-48 (affirming BIA). BIA also reasonably concluded, after consideration that the Property is surrounded “to the north, east, and immediate west” by neighborhoods “that have been historically developed with smaller sized lots than those” in rural areas, AR0194.96, that the proposed development was not so incompatible with surrounding uses that it would preclude coordination between the Tribe and the County to address impacts. AR0258.797-98; AR0194.1700-02. And, the Tribe and the County did in fact enter into an enforceable Memorandum of Agreement concerning the development of the Property, which resulted in the County withdrawing its own legal challenge to the 2014 NOD and the 2017 Decision.9

8 Standing concerns aside, Plaintiffs contend that “the fee-to-trust requested land which [the Tribe] did not own.” Dkt. No. 1, ¶ 126. Such allegation is refuted by the AR, which demonstrates that the Tribe acquired the Property “subject to all encumbrances and other matters of record” and includes a legal description that matches that included in the 2014 NOD. See AR0080.78-83; AR0258.775-76. 9 Pursuant to such Memorandum of Agreement (“MOA”), available at https://www.countyofsb.org/asset.c/3273, the Property will be developed consistent with the Alternative B in the Final EA and the Tribe will implement the mitigation measures adopted as part of the Final EA and FONSI.



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BIA satisfied this regulatory requirement, and Plaintiffs’ bare allegation that BIA’s analysis here was “improper,” Dkt. No. 1, at ¶ 62, must be rejected. BIA’s administrative capacity. BIA must consider, under 25 C.F.R. § 151.10(g), whether it is “equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status.” Plaintiffs’ claim that BIA entirely failed to consider this requirement, Dkt. No. 1, ¶¶ 62, 125, is directly refuted by BIA’s express consideration of it in the 2014 NOD, see AR0258.797; and PDAS Roberts’ consideration of it in the 2017 Decision, see AR0258.3448-49. The Court should reject Plaintiffs’ unsupported allegations of non-compliance. Scrutiny of anticipated benefits and business plan requirements. The Property is located approximately 1.6 miles from the Tribe’s existing Reservation, and thus is considered “off-reservation” under Interior regulations. See 25 C.F.R. § 151.11. Plaintiffs allege that BIA failed to adequately scrutinize the Tribe’s anticipated benefits from the acquisition of the Property under § 151.11(b), and that BIA should have required the Tribe to submit a business plan under § 151.11(c). Dkt. No. 1, ¶¶ 11, 124. Plaintiffs are incorrect. First, BIA detailed the geographical limitations of the Tribe’s existing Reservation, noted its close proximity to the Property, and discussed how the acquisition was “integral” to the Tribe’s self-government and tribal community revitalization goals. AR0258-794-95, 98. BIA applied sufficient scrutiny to the Tribe’s recitation of the anticipated benefits to it from the acquisition, and PDAS Roberts properly affirmed the 2014 NOD on this basis. AR0258.3449-50. Second, as the express language of the regulations state, a business plan is only required from a tribal applicant when the “land is being acquired for business purposes.” 25 C.F.R. § 151.11(c). The AR is replete with discussion of the purpose of the acquisition of the Property: to pursue a housing development. That the Property contains a working vineyard and horse stables, AR0258.798-99, does not transform the acquisition into one made for “business purposes,” as such uses



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could continue without the trust acquisition. Thus, BIA appropriately concluded that, because the primary purpose of the acquisition was for housing, and that the ongoing vineyard and horse stable operations were not expected to generate economic benefits, no business plan was required. AR0258.798-99. PDAS Roberts properly affirmed the 2014 NOD on this basis. AR0258.3450. BIA fully complied with all regulatory requirements applicable to the Tribe’s application to acquire the Property in trust. Plaintiffs’ unsupported, conclusory allegations to the contrary fail to demonstrate otherwise.

II. BIA Complied with NEPA NEPA is a procedural statute that requires federal agencies to consider the

potential impacts of, and alternatives to, major federal actions. 42 U.S.C. §§ 4321, 4331. NEPA requires the preparation of an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An agency may prepare an EA to determine if an EIS is required. 40 C.F.R. §§ 1501.4(b), 1508.9. An EA is a concise public document that briefly describes the proposal, examines alternatives, considers environmental impacts, and lists individuals and agencies consulted. § 1508.9. If an agency concludes the proposed action has no significant effect, “it may issue a FONSI in lieu of preparing an EIS.” Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006) (citing 40 C.F.R. § 1508.9(a)(1)).

A. BIA’s Determination of No Significant Environmental Effects Was Reasonable

BIA carefully analyzed a host of potential impacts stemming from the trust acquisition and properly determined that the Tribe’s proposed development of the Property would not significantly affect the environment. See AR0194.36-119 (Affected Environment); 194.120-193 (Environmental Consequences); AR0237.1, 22. Based upon this reasoned deliberation in its Final EA, BIA properly concluded



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that the proposed development would not significantly affect the quality of the human environment, and thus prepared a FONSI. AR0194.35; AR0237.1, 22. See 42 U.S.C. § 4332(2)(C); see also All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1215 (9th Cir. 2017) (“If the EA reveals no significant effect, the agency may issue a [FONSI].” (second alteration in original) (internal citation omitted)). As more fully recounted in the following subsections, BIA’s consideration of the trust acquisition and proposed development amply satisfied the requirements of NEPA.

Moreover, “an agency’s decision not to prepare an EIS once that agency has prepared an EA is reviewed for abuse of discretion and will be set aside only if it is ‘arbitrary and capricious.’” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1070 (9th Cir. 2002) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376–77 (1989)). Though Plaintiffs disagree with BIA’s decision, they cannot establish that the agency’s environmental review was arbitrary or capricious. BIA carefully considered potential environmental effects. The AR is clear that BIA “support[ed] its conclusions with studies that [it] deemed reliable.” Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citation omitted). BIA weighed a host of potential environmental effects of Alternatives A, B, and C, and evaluated public comments regarding potential effects, including:

• impacts to water resources, including impacts to neighboring wells, groundwater, wastewater treatment, and the Tribe’s assertion of federal water rights (AR0194.32-34, 43-53, 101, 122-26, 154-57, 173, 723-785, 1696-99, 1733-34, 1812, 1878);

• impacts to biological resources, including impacts to protected species and other wildlife, wildlife habitat, oak trees, and oak savannah (AR0194.33, 63-78, 130-33, 159-61, 173, 1693-94, 1710-12, 1734);

• impacts on air quality (AR0194.33, 53-63, 126-30, 157-59, 173, 577-722, 1692-93, 1740);

• impacts to public safety (AR0194.34, 102-105, 145-46, 169); • impacts to land use, including impacts stemming from conflicts between

existing land use restrictions; the change in jurisdictional control that will



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occur following the trust acquisition of the Property; the compatibility of the proposed development under Alternatives A and B with existing land use restrictions; and the significance of any impacts stemming from any development conflicts10 (AR0194.34, 94-101, 140-43, 165-68, 174-75, 1700-04, 1705-06, 1708-10, 1720-22, 1833);

• impacts to noise levels (AR0194.35, 106-114, 147-51, 170-72, 175, 1799-801, 1829, 1841, 1857);

• impacts to public services (AR0194.34, 101-06, 143-47, 168-70, 175, 1704-05, 1720-22, 1728-33);

• impacts to traffic stemming from the proposed development of the Property (AR0194.34, 90-94, 137-40, 163-65, 174, 786-1047, 1692-93, 1723-24, 1735-36, 1801); and

• the cumulative effects of the trust acquisition and proposed development of the Property (AR0194.176-191, 1738-40).

Thus, the AR demonstrates that BIA carefully considered potential impacts and determined that the proposed acquisition would not significantly affect the environment.

Plaintiffs primarily lodge two broad attacks on BIA’s decision to prepare an EA and FONSI, arguing that (1) BIA relied on “faulty facts and analyses” (Dkt. No. 1, ⁋ 111(d)) or improperly assessed various alleged harms (Dkt. No. 1, ⁋ 56 (a), (b), (d), (f), (g) (h), (i), (k), ⁋ 111(c), (e), (g)); and (2) that development of the Property will convert agricultural uses to residential and other uses, which will bring additional residents, employees, and visitors to an area that is currently rural

10 Plaintiffs argue that BIA did not address the “incompatibility” of the acquisition with various community plans, zoning, and land use regulations. Dkt. No. 1, ⁋ 56(i). The AR demonstrates otherwise. AR0194.94-101, 1720-22. BIA noted that the “Tribe is planning to continue [the] operation of approximately 200 acres of the existing vineyard under Alternatives A and B . . . .” AR0194.1720. BIA also stated that although the parcels of the site were subject to Williamson Act contracts, the Tribe has submitted a notice of non-renewal for those contracts. Id. See also infra n.11.



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(Id. ⁋⁋ 53, 56(e), (g)). Thus, Plaintiffs contend, BIA was required to prepare an EIS.

Plaintiffs, however, have not alleged specifically how BIA’s analysis is faulty. And, even if Plaintiffs disagree with BIA’s determination, a court “generally must be at its most deferential when reviewing scientific judgments and technical analyses within the agency’s expertise under NEPA”; courts “may not impose themselves as a panel of scientists . . . instruct[ing] the agency [to choose] among scientific studies [] and order[ing] the agency to explain every possible scientific uncertainty.” Weldon, 697 F.3d at 1051 (internal alterations, quotation marks and citations omitted).

In any event, Plaintiffs are incorrect in asserting that BIA’s analysis was faulty. Indeed, BIA carefully considered the potential environmental consequences of its actions. This careful consideration included the evaluation of public comments concerning the potential for the acquisition to bring additional residents, employees, and visitors to the area. After determining that Alternatives A and B met the purpose and need for the acquisition, BIA determined none of the “identified impacts would be significant or unavoidable, following implementation of protective measures and mitigation recommended in this document.” AR0194.35. See 42 U.S.C. § 4332(2)(C). By carefully considering a plethora of potential impacts and public comments, BIA satisfied its NEPA obligations. BIA used appropriate baselines. It is undisputed that NEPA analysis requires analyzing the baseline conditions of the project site. Half Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988) (“Without establishing the baseline conditions . . . [there is] no way to comply with NEPA.”). Plaintiffs incorrectly argue, however, that BIA improperly applied a present day baseline. Dkt. No. 1, ⁋ 56(a). Agencies frequently must use the best data available to them when considering NEPA even when it may be less than perfect. See Rohnert Park Citizens to Enforce CEQA v. U.S. Dep’t of Transp., 385 F. App’x 759, 761 (9th



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Cir. 2010) (“A NEPA document’s failure to analyze unknown environmental effects of reasonably foreseeable future actions does not render its cumulative impacts analysis arbitrary or capricious”).

BIA made the reasonable choice to use the “measurable and readily quantifiable data” available to it rather than engage in unfounded speculation by using a future baseline. AR0237.00428-29; AR0194.36-119 (description of affected environment). As the Ninth Circuit has noted, “[i]t is not appropriate to defer consideration of cumulative impacts to a future date when meaningful consideration can be given now, nor do we require the government to do the impractical, if not enough information is available to permit meaningful consideration.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1078 (9th Cir. 2011) (alteration in original) (citation omitted). BIA also considered that the Tribe submitted a notice of non-renewal for the Williamson Act11 contracts and that until the point of expiration in 2023, the Tribe intended to comply with existing Williamson Act contract obligations. AR0194.143, 1720. Here, BIA used data from the U.S. Census, and properly concluded that though there will be an increase in residents associated with both Alternatives, the “population and demographics of the region would not change in a substantial way” and that growth would be minor, or an approximate 2.6% increase over the 2010 combined census population of the region. AR0194.1723. BIA reasonably considered the best information available to it at the time it conducted its NEPA review. See Rohnert Park, 385 F. App’x at 761; TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 863-64 (D.C. Cir. 2006) (“the Bureau’s 11 The Williamson Act allows “private landowners [to] contract with counties and cities to voluntarily restrict their land to agricultural and compatible open-space uses . . . . [in the form of] a rolling term 10-year contract (i.e., unless either party files a “notice of nonrenewal,” the contract is automatically renewed).” AR0194.99. In exchange, the restricted parcels are assessed at a tax rate consistent with their actual use. Id.



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thorough analysis of the conditions existing at the time of its examinations demonstrates clearly that it took a hard look at the project’s potential direct and indirect impacts on local air quality. BIA was under no obligation to hypothesize about future regulations.”). See also AR0258.3456 (“BIA used the information available to it to conduct the EA . . . its use to understand impacts of development on Camp 4 was reasonable.”). BIA provided a clear and reasonable explanation for its decision to use the information available to it at the time. See AR0194.1688-89; AR0237.428-29. NEPA requires no more.

B. BIA Properly Reviewed Alternatives, Addressed Opposing Viewpoints, and Circulated a Draft EA

BIA considered three alternatives: Alternative A, the development of 143 five-acre residential lots, Alternative B, the development of 143 one-acre residential lots with attendant tribal facilities, and Alternative C, where no federal action would be taken; each alternative was examined in great detail to determine if the alternative met the purpose and need and whether the alternatives resulted in significant impacts. See AR0194.17-35. The purpose of this project is to “provide necessary housing within the Tribe’s ancestral and historic territory for its current members and future generations . . . [and to] allow full tribal governance over its existing agricultural operations on the property . . .” AR0194.14. After having examined the various alternatives and the potential impacts of each alternatives (AR0194.18-35; 120-193), BIA reasonably concluded that both Alternatives A and B would meet the Tribe’s objectives, but that Alternative B would result in additional beneficial socioeconomic impacts to the Tribe through the development of additional tribal facilities. AR0194.35. Thus, Plaintiffs mischaracterize BIA’s action when it alleges that BIA failed to consider project alternatives. See Dkt. No. 1, ⁋ 56(l). While an agency may consider “enough alternatives to permit a reasoned choice,” an agency is not required to “consider every available



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alternative.” Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1099-1100 (9th Cir.2012) (internal citations omitted).

Plaintiffs are also incorrect as a matter of law in contending that BIA was required to circulate the FONSI. Dkt. No. 1, ⁋ 56(m). As the Ninth Circuit has noted and BIA regulations recognize, the agency was not required to circulate its draft Final EA and FONSI. See Div. of Envtl. & Cultural Res. Mgmt., 59 IAM 3-H, Indian Affairs National Environmental Policy Act Guidebook, § 6.2 (2012), https://www.bia.gov/node/4355/handbook/attachment/newest/ (last visited Jul. 5, 2018); 43 C.F.R. § 46.305(b), (c) (publication of a draft EA is not required); 40 C.F.R. § 1501.4(e)(2) (listing conditions where FONSI must be made available for public review). See also Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 952 (9th Cir. 2008) (“We hold today that the circulation of a draft EA is not required in every case . . . . The regulations do not compel such formality.” (citing All. to Protect Nantucket Sound, Inc. v. U.S. Dep’t. of Army, 398 F.3d 105, 114–15 (1st Cir. 2005) (“concluding that [n]othing in the CEQ regulations requires circulation of a draft EA for public comment, except under certain ‘limited circumstances . . . .’” (alteration in original, internal quotation marks omitted)); Fund for Animals, Inc. v. Rice, 85 F.3d 535, 549 (11th Cir. 1996) (“[T]here is no legal requirement that an Environmental Assessment be circulated publicly and, in fact, they rarely are.” (alteration in original)).

Nonetheless, BIA provided ample opportunity for the public to review and comment on the proposed development and draft EA. BIA event went so far as extending the usual thirty-day comment period to ninety days to ensure the public could submit their comments. BIA received and considered over one thousand comment letters. See AR0194.1054-83, 1686-899; AR0237.3-4, 22, 425-94.

C. BIA Appropriately Considered Mitigation BIA also properly evaluated mitigation measures proposed in the Final EA

and FONSI. BIA “incorporate[ed] mitigation measures throughout the plan of


https://www.bia.gov/node/4355/handbook/attachment/newest/


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action so that the effects are analyzed with those measures in place.” Envtl. Prot. Info. Ctr., 451 F.3d at 1015 (finding that mitigation measures make an EIS unnecessary where the EA “contains very specific and detailed information” on how to conduct the project so as to minimize environmental impacts); see also AR0194.120-204; AR0237.7-21. BIA applied this careful mitigation analysis to every aspect of the proposed development of the Property: land resources, water resources, air quality, biological resources, cultural resources, socioeconomic conditions and environmental justice, transportation and circulation, land use, public services, noise, hazardous materials, and visual resources were evaluated for best management practices to reduce the impact of the proposed development upon them to the point of insignificance. AR0194.194-204; AR0237.7-21.

Plaintiffs’ argument that BIA improperly evaluated mitigation measures and that BIA’s proposed mitigation is not feasible or enforceable should also be rejected. Dkt. No. 1, ⁋ 56(c). Notwithstanding that mitigation need not be legally enforceable, funded, or in final form, see Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989) and Tillamook Cty. v. U.S. Army Corps of Eng’rs, 288 F.3d 1140, 1144 (9th Cir. 2002), the Final EA and FONSI note that the mitigation is binding on the Tribe and will be monitored. AR0194.194 (“all mitigation . . . will be binding on the Tribe because it is intrinsic to the project, required by federal law, required by agreements between the Tribe and local agencies, and/or subject to a tribal resolution.”); AR0237.499 (“[M]itigation measures will be monitored and enforced pursuant to federal law, tribal ordinances, and agreements between the Tribe and appropriate governmental authorities, as well as the FONSI.”). And, the mitigation encompasses various Tribal payments to the County to offset any potential impacts to public services and transportation. AR0237.7 (noting the establishment of a Tribal Police Department and a dedicated Tribal fund and annual grant set aside program for the local school districts), 19-20 (noting the requirement of Tribal payment for traffic improvements). Thus, “given



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the specificity of the protection measures, the analysis of the environmental impacts with these measures in place, and the provision for ongoing monitoring to ensure compliance” BIA has more than adequately performed its duty to take a “hard look” at the potential consequences of the proposed development. Envtl. Prot. Info. Ctr., 451 F.3d at 1015-16.12

D. Supplementation is Not Required The Council on Environmental Quality regulations, 40 C.F.R. § 1502.9(c),

require supplementation in circumstances that are irrelevant here. The regulations require supplementation of EISs when there are “substantial changes in the proposed action,” or “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action . . . .” Id. § 1502.9(c)(1). The court should reject Plaintiffs’ allegation that BIA is required to supplement its decision, see Dkt. No. 1, ⁋ 65, because the CEQ regulations for supplementation apply in the context of an EIS, and not to an EA and FONSI, which the agency properly performed here.

III. The 2017 Decision Was Final for Interior When Issued Plaintiffs argue that the authority to issue final decisions in administrative

appeals is exclusive to the Assistant Secretary, and that because PDAS Roberts was no longer serving as Acting Assistant Secretary at the time of the 2017 Decision, the 2017 Decision was not final when issued and the Property should therefore not have been acquired in trust. Dkt. No. 1, ¶ 93-96. A sister court has 12 Other courts have upheld BIA’s determination to use an EA and FONSI in trust acquisition contexts. See Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 28-30 (D.C. Cir. 2008) (per curiam) (upholding EA and FONSI prepared in connection with a proposed casino, rejecting arguments that an EIS was required and holding traffic impact analysis sufficient); TOMAC, 433 F.3d at 860-64 (upholding EA and FONSI prepared in connection with a proposed casino, finding EIS not required despite size of the project; public comment process was adequate; and air quality and cumulative impacts analysis was adequate).



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rejected a virtually identical argument, see Stand Up for Cal! v. U.S. Dep’t of Interior, 298 F. Supp. 3d 136, 139-150 (D.D.C. 2018), because, as set forth below, the authority to issue final decisions on administrative appeals is not exclusive to the Assistant Secretary and was properly delegated down to PDAS Roberts. The 2017 Decision was thus final when issued, consistent with the Appointments Clause and the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. (“FVRA”), and BIA Regional Director Dutschke appropriately accepted title to the Property following the issuance of the 2017 Decision.

A. The Federal Vacancies Reform Act Permits Delegation of the Non-Exclusive Functions and Duties of the Assistant Secretary

Plaintiffs’ Complaint conjures a statutory and constitutional impediment that should be readily be rejected. The Appointments Clause of the United States Constitution provides, among other things, that the President should obtain “the Advice and Consent of the Senate” prior to appointing certain “Officers of the United States.” U.S. Const., art. II, § 2, cl. 2. Because a position that requires Presidential appointment and Senate confirmation (“PAS position”) could go unperformed during a vacancy, Congress enacted the FVRA to conform to the Appointments Clause while also providing significant flexibility for the appointment of acting officials. Mr. Roberts exercised authority properly delegated to him in accordance with the FVRA.

The Assistant Secretary is a PAS position. 43 U.S.C. §§ 1453; 1453a; 1454; Reorg. Plan No. 3 of 1950 § 2, 64 Stat. 1262; 42 Fed. Reg. 53,682 (Oct. 3, 1977). The FVRA states that when a PAS official “dies, resigns, or is otherwise unable to perform the functions and duties of the office . . . the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity” unless the President has designated a person in one of the other two eligible categories to do so. 5 U.S.C. § 3345. The “first assistant” automatically is vested with such acting capacity for 210 days. Id. § 3346.



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During the 210-day period set forth in the FVRA, the “first assistant” is authorized to perform all functions and duties of the PAS position. Thereafter, the FVRA requires that if the PAS position remains vacant, then only the head of the agency shall perform the “functions and duties” assigned to that PAS position. Id. § 3348. But recognizing that “the business of the government could be seriously impaired” by such requirement, Congress limited the “functions or duties” that must be performed by an agency head to only those that a statute or regulation expressly requires be exclusively performed by that official and that official alone. Stand Up for Cal.!, 298 F. Supp. 3d at 141; Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 420 (D. Conn. 2008), aff’d, 587 F.3d 132 (2d Cir. 2009) (per curiam) (citing 5 U.S.C. § 3348(a)(2)).

When, as here, the PAS position remains vacant after the 210-day period expires, the FVRA “has been deemed to ‘permit non-exclusive responsibilities to be delegated to other appropriate officers and employees in the agency.’” Stand Up for Cal.!, 298 F. Supp. 3d at 141 (quotation omitted). The authority Congress delegates to agencies is presumed to be delegable to subordinate officers, id. at 137 (citing U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004)), and “[e]xpress statutory authority for delegation is not required,” Loma Linda Univ. v. Schweiker, 705 F.2d 1123, 1128 (9th Cir. 1983).

B. PDAS Roberts Possessed the Delegated Authority to Carry Out the Non-Exclusive Functions and Duties of the Assistant Secretary Beyond 210 Days

As set forth above, the Secretary has broad power to delegate authority to subordinate officials, and Interior uses its Departmental Manual (“DM”) to communicate and document those delegations throughout the agency.13 As “first

13 See 200 DM 1.3 (DM is the “appropriate medium for issuing delegations”); DM Parts 200-296 (documenting delegations by the Secretary and Assistant



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assistant” to the Assistant Secretary,14 PDAS Roberts was automatically delegated the full authority of the Assistant Secretary during the 210-day period allowed under the FVRA to serve in an “Acting Assistant Secretary” capacity. Cty. of Amador v. U.S. Dep’t of Interior, 872 F.3d 1012, 1019 n.5 (9th Cir. 2017) (citing Schaghticoke Tribal Nation, 587 F.3d at 135; Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 557 (9th Cir. 2016)). When Mr. Roberts resumed his position as PDAS on July 29, 2016, the Assistant Secretary position remained vacant. Therefore, pursuant to Interior delegations, PDAS Roberts continued to exercise all of the Assistant Secretary’s nonexclusive authority throughout that vacancy.15 The Assistant Secretary position remained vacant until Mr. Roberts resigned his position effective January 20, 2017.

C. PDAS Roberts Issued the 2017 Decision As An Exercise of the Non-Exclusive Functions and Duties of the Assistant Secretary

The authority to issue final decisions on administrative appeals is not a function or duty assigned by statute or regulation exclusively to the Assistant Secretary. Such decision-making authority derives from statutes that do not address who may issue final decisions on administrative appeals. See 25 U.S.C. § 2, 9; 5 U.S.C. § 301; 43 U.S.C. § 1457.16 Nor do such statutes assign the function “only,” “exclusively,” or “solely” to the Assistant Secretary. See Stand Up for Cal.!, 298 F. Supp. 3d at 142 (authority presumed delegable “absent affirmative

Secretaries). The DM is entitled to deference. See City of Arlington v. FCC, 569 U.S. 290, 297 (2013). The DM is available at https://www.doi.gov/elips/browse. 14 See 110 DM 8.2 (PDAS “serves as the first assistant and principal advisor to the Assistant Secretary”). 15 See 209 DM 8.1 (Assistant Secretary “is authorized to exercise all of the authority of the Secretary”); 209 DM 8.4B (“[i]n the absence of, and under conditions specified by the [Assistant Secretary], the [PDAS] may exercise the authority delegated in 209 DM 8.1”). 16 Compare 25 U.S.C. § 2103(d) (authority to disapprove certain mineral agreements may “only be delegated” to the Assistant Secretary).



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evidence of a contrary congressional intent”); Schaghticoke Tribal Nation, 587 F. Supp. 2d at 420 (concluding that 25 U.S.C. § 2, 9; 5 U.S.C. § 301; and 43 U.S.C. § 1457 “do not even mention” the authority at issue in the case, “let alone assign the [authority] ‘only’ or ‘exclusively’ to the [Assistant Secretary]”).

To the contrary, Interior regulations authorize officials other than the Assistant Secretary to decide appeals. See, e.g., 25 C.F.R. § 2.4 (officials who “may” decide appeals); 43 C.F.R. § 4.312 (IBIA authorized to decide appeals and those decisions must be given final effect); id. § 4.5(a)(1) (reserving to the Secretary the authority to take jurisdiction at any stage of any case pending before any Interior office and to render a final decision on it). The Assistant Secretary’s functions and duties under 25 C.F.R. Part 2 are thus nonexclusive and, consistent with the FVRA, may be redelegated to subordinate officials.

Accordingly, when PDAS Roberts signed the 2017 Decision, he did so not as a “deputy” under 25 C.F.R. § 2.20(c)(2), but pursuant to the properly delegated nonexclusive authority of the Assistant Secretary. Thus, consistent with FVRA, PDAS Roberts correctly stated that the 2017 Decision was final, AR0258.3466, and BIA Regional Director Dutschke properly accepted title to the Property.

CONCLUSION The United States respectfully requests that the Court grant the United States’ Motion for Summary Judgment and deny Plaintiffs’ Motion. Dated: July 6, 2018.

Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General /s/ Rebecca M. Ross REBECCA M. ROSS, Trial Attorney DEDRA S. CURTEMAN, Trial Attorney United States Department of Justice Attorneys for the United States


JEFFREY H. WOOD Acting Assistant Attorney General DEDRA S. … · 2019-02-14 · DEDRA S. CURTEMAN,...

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