Butte County, Cal. v. Hogen

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2009 Decided July 13, 2010

No. 09-5179

BUTTE COUNTY, CALIFORNIA,
APPELLANT

v.

PHILIP N. HOGEN, CHAIRMAN, NATIONAL INDIAN GAMING
COMMISSION, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00519)

Dennis J. Whittlesey argued the cause and filed the briefs
for appellant. Bruce S. Alpert entered an appearance.

Robert P. Stockman, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were John C. Cruden, Acting Assistant Attorney General, and
Aaron P. Avila, Attorney. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.

Nicholas C. Yost argued the cause for appellee Mechoopda
Indian Tribe of Chico Rancheria, California. With him on the
brief were Michael J. Anderson and Matthew J. Kelly.
 2

Before: ROGERS and GRIFFITH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

I.

RANDOLPH, Senior Circuit Judge: The issue in this appeal
from the judgment of the district court arises from efforts of the
Mechoopda Indian Tribe of Chico Rancheria in Butte County,
California, to obtain federal approval to conduct gaming
operations. The Indian Gaming Regulatory Act, 25 U.S.C.
§§ 2701–2721, permits federally-recognized Indian tribes to
conduct gaming on “Indian lands.” The Act defines “Indian
lands” to mean all lands within any Indian reservation and “any
lands title to which is . . . held in trust by the United States for
the benefit of any Indian tribe . . . .” Id. § 2703(4). Indian
gaming is not permitted on “newly acquired lands” – that is,
lands the Secretary of the Interior took into trust for a tribe after
October 17, 1988, when the Act went into effect. An exception
to this bar allows Indian gaming on lands the Secretary takes
into trust after the 1988 date “as part of . . . the restoration of
lands for an Indian tribe that is restored to Federal recognition.”
Id. § 2719(b)(1)(B)(iii).

The Mechoopda Tribe has been restored to federal
recognition. The issue at the administrative level was whether
land the Tribe purchased and offered to the Department of the
Interior to take into trust for its benefit qualified as restored
lands. The Act does not define “restoration of lands.” The
Interior Department and the agency largely responsible for
regulating Indian gaming – the National Indian Gaming
 3

Commission – believed that any lands “located within the areas
historically occupied by the tribes are properly considered to be
lands taken into trust as part of the restoration of lands.” Grand
Traverse Band of Ottawa and Chippewa Indians v. U.S.
Attorney for W. Dist. of Mich., 46 F. Supp.2d 689, 701 (W.D.
Mich.1999). Shortly after final agency action in this case, the
Interior Department codified its view in regulations requiring,
among other things, that a tribe “demonstrate a significant
historical connection to the land.” 25 C.F.R. § 292.12(b).1

The Mechoopda Tribe had approximately 400 enrolled
members when this case began. Most lived in or near what is
now Chico, California, the largest city in Butte County in the
north-central portion of the state. The Tribe traces its history to
a “rancheria” in Chico. In 1849, John Bidwell, a wealthy
California businessman and politician, purchased a 22,000-acre
ranch and hired Indians to live and work there. When Bidwell
died, he left the ranch to his wife. Between 1909 and 1918 Mrs.
Bidwell conveyed 26 acres of the ranch where the Indians were
living – the “rancheria” – to a private board in trust for the
Indians. The United States took over as trustee of the rancheria
in 1939. Acting pursuant to the California Rancheria Act, Pub.
L. No. 85-671 (1958), the government terminated the
Mechoopda Tribe’s recognition in 1967 and ended the trust
status of the land. See Notice of Termination, 32 Fed. Reg. 7981
(June 2, 1967).

1
If the tribe regained recognition through federal legislation
and the legislation authorized the Interior Secretary to take particular
parcels of land into trust for the tribe, the Secretary will consider those
lands “restored.” 25 C.F.R. § 292.11(a)(1). That situation, not present
here, describes City of Roseville v. Norton, 348 F.3d 1020 (D.C. Cir.
2003).
 4

The Tribe brought a lawsuit contesting its termination. The
suit ended when the government and the Tribe entered into a
settlement agreement. As the settlement agreement provided,
the government restored the Tribe to federal recognition in 1992.
See Notice of Reinstatement, 57 Fed. Reg. 19,133 (May 4,
1992). The settlement agreement also forbade the Tribe from
reestablishing the boundaries of the rancheria.

In 2001, the Tribe purchased a 645-acre parcel of land in
Butte County. The Tribe’s plan was to have the government
take the land in trust so that the Tribe could develop and operate
a casino there. The parcel is located approximately 10 miles
from the area of the former rancheria, which is in the center of
the city of Chico. In addition to requesting the Secretary to take
the parcel into trust for the Tribe’s benefit, the Tribe submitted
applications to the Gaming Commission for review of a gaming
management contract and for approval of a gaming ordinance.

The matter was initially referred to the Office of the
General Counsel for the Gaming Commission to prepare an
advisory legal opinion on whether gaming on the land would be
permissible – that is, whether the land, if taken into trust, would
qualify under the restored lands exception. Relying on material
the Tribe provided, Acting Deputy Counsel Coleman concluded
that the Tribe had a “historical and cultural nexus” to the
proposed gaming site that was “sufficient to show that the parcel
was not merely an acquisition but a restoration of previously
used lands.” Her conclusion rested, in part, on the fact that the
proposed gaming site was within the boundaries of the
Mechoopda villages before the Mechoopda relocated to the
Bidwell ranch. Her memorandum also indicated that the
proposed site was within land that was promised the Mechoopda
by an unratified treaty of 1851. There was other evidence
showing the historical and cultural significance of the land to the
Mechoopda. The memorandum stated that the Interior
 5

Department’s Office of the Solicitor concurred in her
conclusion.

Coleman’s memorandum was dated March 14, 2003. The
Secretary did not make a final decision to take the land into trust
until May 8, 2008. In the interim, on June 16, 2006, the attorney
for Butte County wrote to the Secretary to dispute Coleman’s
opinion. The County objected to Coleman’s conclusion that the
Tribe had a historic connection to the gaming site. As the
County saw it, the tribe that worked and lived on the Bidwell
Ranch, and from whom the modern Tribe is descended, was not
the same tribe as the historic tribe that had allegedly occupied
the gaming site. Rather, the people residing at the ranch were a
disparate group of Indians from many tribes. The County urged
that the only land to which the tribal members could show a
common connection was on the site of the former the Bidwell
Ranch.

To support its assertions, the County attached a report
prepared by its consultant, Dr. Stephen Dow Beckham, a
professor of history at Lewis & Clark College. The report
provided a history of the Bidwell Ranch and those who worked
and resided there. Beckham cited the findings of a Bureau of
Indian Affairs employee who visited the ranch in 1914. The
BIA employee concluded that the Indians did not “belong to any
particular band, but are remnants of various small bands,
originally living in Butte and nearby counties.” Beckham’s
report also included a detailed account of the families who
resided at the ranch between 1928 and 1933. A significant
number of these individuals belonged to a tribe interchangeably
referred to as Michopda, Mishopda, or Mi-Cho-Da. While this
is the historic tribe discussed in Coleman’s analysis, Beckham
found that many of the ranch Indians were from other tribes –
his report lists members of the Wailaki, Concow, Winton, Yuki,
Pit River, and Sioux tribes. Why the Indians of the Bidwell
 6

Ranch ultimately assumed the name “Mechoopda” – presumably
a variant of the “Michopda” tribe from which some of them
were descended – is unclear.

The Acting Deputy Assistant Secretary for Policy and
Economic Development responded to the County in a short
rejection letter. The letter, dated August 28, 2006, stated:
“[Y]ou ask that the Department reject the March 14, 2003,
determination of the National Indian Gaming Commission
(NIGC) that the parcel proposed to be taken into trust would
qualify as ‘restored land[.]’ . . . We are not inclined to revisit
this decision now because the Office of the Solicitor reviewed
this matter in 2003, and concurred in the NIGC’s determination
of March 14, 2003.” There is no indication that the Interior
Department ever revisited this determination and actually
considered the County’s evidence.

On February 8, 2007, the Gaming Commission approved
the Tribe’s gaming ordinance, indicating that the approval was
“only for gaming on Indian Lands.” On May 8, 2008, the
Secretary published in the Federal Register his final decision to
take the Tribe’s land into trust.2 The County filed an action
claiming that both agency actions were arbitrary and capricious
in violation of the Administrative Procedure Act, 5 U.S.C.
§ 706. The district court granted summary judgment in favor of
the agencies, ruling that the agencies had considered “the
necessary factors,” and the County appealed.

II.

The case boils down to several straightforward propositions
of administrative law. We have what is known as informal

2
The Secretary has stayed the land conveyance pending the
outcome of this litigation.
 7

agency adjudication. Governing procedural rules, derived
mainly from § 555 of the APA, 5 U.S.C. § 555, and the Due
Process Clause, are few. Even so, agency decisions in informal
adjudication are subject to judicial review under § 706 of the
APA. See, e.g., Reliance Elec. Co. v. Consumer Prod. Safety
Comm’n, 924 F.2d 274, 277 (D.C. Cir. 1991). If the agency
decision is arbitrary, capricious or an abuse of discretion it must
be set aside.

Two legal propositions are important to the disposition of
this case.

First, under § 555(e), the agency must provide an interested
party – here Butte County – with a “brief statement of the
grounds for denial” of the party’s request. As this court held in
Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir.
2001), the agency must explain why it decided to act as it did.
The agency’s statement must be one of “reasoning”; it must not
be just a “conclusion”; it must “articulate a satisfactory
explanation” for its action. 259 F.3d at 737 (quoting Henry J.
Friendly, Chenery Revisited: Reflections on Reversal and
Remand of Administrative Orders, 1969 Duke L.J. 199, 222, and
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)).

Second, an agency’s refusal to consider evidence bearing on
the issue before it constitutes arbitrary agency action within the
meaning of § 706. See, e.g., State Farm, 463 U.S. at 43;
Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009). This
proposition may be deduced from case law applying the
substantial evidence test, under which an agency cannot ignore
evidence contradicting its position. “The substantiality of
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v.
NLRB, 340 U.S. 474, 487–88 (1951). Although we are dealing
 8

with the question whether agency action is arbitrary or
capricious, “in their application to the requirement of factual
support the substantial evidence test and the arbitrary or
capricious test are one and the same.” Ass’n of Data Processing
Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys., 745
F.2d 677, 683 (D.C. Cir. 1984); accord Am. Radio Relay
League, Inc. v. FCC, 524 F.3d 227, 243 (D.C. Cir. 2008).

The Interior Department managed to violate the minimal
procedural requirements § 555(e) imposed. When Butte County
furnished the Interior Secretary’s office with a copy of the
Beckham Report and gave numerous reasons why the Tribe’s
land did not constitute “restored land,” that issue was still
pending before the Secretary. The Secretary’s final
determination did not come until two years later, on March 14,
2008.3 Yet the entirety of Interior’s response to Butte County
was this: “We are not inclined to revisit this decision [the
opinion of the Gaming Commission] now because the Office of
the Solicitor reviewed this matter in 2003, and concurred in the
NIGC’s determination of March 14, 2003.”

This response violates § 555(e) for the same reason the
response in Tourus Records violated that provision. The
response “provides no basis upon which we could conclude that

3
According to agency guidelines, whether lands qualify as
restored “is a decision made by the Secretary when he or she decides
to take land into trust for gaming”; Indian lands opinions are prepared
because the agencies are “in need, from time to time, for legal advice.”
See Memorandum of Agreement Between the National Indian Gaming
Commission and the Department of the Interior. Indian lands opinions
are “advisory in nature and thus do not legally bind the persons vested
with the authority to make final agency decisions.” See Gaming on
Trust Lands Acquired After October 17, 1988, 73 Fed. Reg. 29,354,
29,372 (May 20, 2008).
 9

it was the product of reasoned decisionmaking.” 259 F.3d at
737. It had all the explanatory power of the reply of Bartelby
the Scrivener to his employer: “I would prefer not to.”4 Which
is to say, it provided no explanation.

Interior’s response was also arbitrary. Reasoned
decisionmaking is not a procedural requirement. Cross-Sound
Ferry Servs., Inc. v. ICC, 738 F.2d 481, 487 (D.C. Cir. 1984).
It stems directly from § 706 of the APA. That much was made
clear in another informal adjudication case – Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).
Interior’s response speaks as if the Secretary had already
decided the issues – “We are not inclined to revisit” the matter
– when in fact the matter remained pending. The rest of the
response is senseless. So what if the Solicitor had reviewed the
Gaming Commission’s decision in 2003 and agreed with it?
The Secretary had yet to decide whether he agreed, which is
what counted.5 The very point of Butte County’s submission

4
The first of many such exchanges continued thus:

“Prefer not to,” echoed I, rising in high excitement, and
crossing the room with a stride. “What do you mean? Are you moon-
struck? I want you to help me compare this sheet here — take it,” and
I thrust it towards him.
“I would prefer not to,” said he.

Herman Melville, Bartleby, the Scrivener: A Story of Wall
Street 10 (Dover 1990) (1853).
5
It is not correct to say, as the dissent does, that by the time
the County submitted its letter, the issue had been decided and that the
County was asking the Secretary to “reopen” the matter. Dissenting
Op. at 10. The fact is that the Secretary did not make a decision until
two years after the County sent the letter. (The determination in this
case was actually made by the Assistant Secretary – Indian Affairs, to
 10

was that the information it submitted called into doubt the
judgment of the Gaming Commission. To refuse to evaluate
that information because the Solicitor – who never looked at it
– agreed with the Gaming Commission is totally irrational.

All that remains is Interior’s argument that several
statements in an environmental assessment6 supplied the missing
reasoning and showed that the Secretary in fact did take into
account the County’s evidentiary submission. The
environmental assessment came after Interior had advised the
County that it would not revisit the restored lands question.
There is nothing to indicate that it changed its mind; in fact the
environmental assessment relied on the response to the County
attorney. And it added that whether the Tribe’s newly-acquired
lands qualified as restored lands was irrelevant to the question
being addressed – namely, whether the Secretary’s taking the
lands into trust to allow the Tribe to operate a casino there
would have a significant environmental impact. The only other
point in the environmental assessment was that Interior could
not rescind the federally-recognized status of the Tribe. This
comment and the others were responsive to an August 2006
letter from a Butte County administrator dealing with
environmental issues. But the comment was not responsive to
the arguments raised in the County attorney’s letter regarding
restoration of the lands.

whom the Secretary had delegated authority. See 209 Departmental
Manual 8.1. The Solicitor may have made up his mind but the
Secretary did not delegate decisionmaking authority to him. See note
3, supra.)
6
Environmental assessments are done to determine whether
the agency needs to prepare an environmental impact statement for
major federal action pursuant to the National Environmental Policy
Act, 42 U.S.C. § 4232(C). See Humane Soc. of the United States, 840
F.2d 45, 61–62 (D.C. Cir. 1988).
 11

According to our dissenting colleague, the environmental
assessment “indicated that Interior understood the County and
the Beckham Report to be denying the Tribe’s existence at the
Chico Rancheria on the thesis that the ‘modern’ Tribe had no
connection with the ‘historical’ Mechoopda Tribe that occupied
vast areas of Butte County and hence had no historical
connection to [the historical tribe’s] land.” Dissenting Op. at 12.
But the County attorney’s letter submitted with the Beckham
Report clearly states that the County challenged Coleman’s
restored lands opinion and “[did] not contest the Mechoopda’s
federal recognition.” Rather, it argued that “the only land ever
occupied by the people who ultimately were recognized as a
tribe was the Bidwell Ranch property . . . . [T]he tribal members
cannot demonstrate any ties or connections to any other
property.” The thesis of the Beckham Report, as the dissent
appears to recognize at one point, goes entirely to the restored
lands issue by supporting the County’s argument that the Tribe
had no connection to any land other than its former rancheria.
The later letter from the Butte County administrator did, in fact,
challenge the Tribe’s status, which explains why the
environmental assessment advised the County that recognition
was irreversible. But that point does not speak at all to the
Tribe’s historic connection with the land in question.

Our dissenting colleague provides her own analysis of the
Beckham Report and concludes that it does not undermine the
evidence the Tribe submitted. We are not so sure, but that is not
the point. An “agency’s action must be upheld, if at all, on the
basis articulated by the agency itself.” State Farm, 463 U.S. at
50 (citing SEC v. Chenery, 332 U.S. 194, 196–97 (1947)). The
Secretary mentioned none of the dissent’s reasons for rejecting
the Beckham Report. The Secretary simply refused to give the
County an audience.
 12

For all of these reasons, we set aside the Secretary’s final
action to take the Tribe’s lands into trust.7 The case is remanded
for further proceedings consistent with this opinion.

So Ordered.

7
The County also asks us to set aside the Gaming
Commission’s approval of the Tribe’s gaming ordinance. The theory
apparently is that in approving the ordinance, the Commission
determined that the Tribe’s land qualified as restored land. But the
Commission’s letter of approval, which came well before the
Secretary’s final decision regarding the land, belies this theory. The
letter simply stated that the Commission approved the ordinance “only
for gaming on Indian Lands,” without stating whether the land the
Tribe had purchased would wind up in that category. In light of our
decision vacating the Secretary’s land restoration determination, the
Commission’s approval therefore has no effect and we see no reason
to vacate it. The dissent apparently agrees.
 ROGERS, Circuit Judge, dissenting: Congress determined in
enacting the Indian Gaming Regulatory Act (“IGRA”) that
Indian tribes restored to federal recognition may be eligible for
a restoration of lands on which gaming is permitted. 25 U.S.C.
§ 2719(b)(1)(B)(iii); see also id. § 465. At issue is whether the
decisions of the Secretary of the Interior and the National Indian
Gaming Commission (“NIGC”) granting the Mechoopda Tribe’s
application for a restoration of lands and for gaming on those
lands were arbitrary and capricious. A review of the
administrative record indicates these decisions are reasonable
and supported by substantial evidence of the Tribe’s ample
historical and cultural connections to land at issue (the “Chico
parcel”). The record demonstrates that the Secretary considered
Butte County’s views and its 2006 report and explained why he
was not inclined to revisit the 2003 determination by the NIGC
and Interior’s Solicitor that the Chico parcel would qualify as
restored lands. The Secretary’s rationale is self-explanatory: The
County’s report addressed only a narrow aspect of the Tribe’s
history and did not challenge the expert studies on which 2003
determination relied in addressing the Tribe’s full history. The
Secretary’s rationale was elaborated in contemporaneous agency
memoranda when the Assistant Secretary for Indian Affairs, who
made the decision on behalf of the Secretary to approve the
Tribe’s application to take the Chico parcel into trust as a
restoration of lands, concluded that the County sought to deprive
a federally recognized Tribe of rights protected by law.
Accordingly, because as Tourus Records, Inc. v. DEA, 259 F.3d
731 (D.C. Cir. 2001), instructs, the Secretary neither violated the
requirements of 5 U.S.C. § 555(e) nor ignored the County’s
views or its 2006 report, and because the challenged decisions
are supported by substantial evidence in the record, I would
affirm the grant of summary judgment to the Secretary, the
NIGC, and the Tribe, and I respectfully dissent.
 2

I.

The background to the Tribe’s application to the Secretary
to take the Chico parcel into trust pursuant to section 5 of the
Indian Reorganization Act (“IRA”), 25 U.S.C. § 465, sets the
context for the County’s request to the Secretary on June 16,
2006 and for the Secretary’s response. The applicable statutes
required the Secretary to determine whether the Chico parcel
qualified as a “restoration of lands” allowing gaming under
section 20 of the IGRA, 25 U.S.C. § 2719(b)(1)(B)(iii). In the
Tribe’s case, Interior’s Office of the Solicitor requested that
NIGC assume primary responsibility for providing a legal
opinion on this question. The Secretary also had to examine the
environmental effects of taking the Chico parcel into trust under
the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321–4370f. Only if the “restoration of lands” and
environmental determinations favored granting the Tribe’s
application could the Secretary act under the IRA to approve the
Tribe’s application to take the Chico parcel into trust for, in part,
casino gaming. See TOMAC, Taxpayers of Mich. Against
Casinos v. Norton, 433 F.3d 852, 856–57 (D.C. Cir. 2006). In
“mak[ing] any decision or determination . . . with respect to a
federally recognized Indian tribe,” the Secretary could not
subclassify a tribe by denying it privileges and immunities
 3

available to other federally recognized tribes. 25 U.S.C.
§ 476(f).1

The County has long been involved with Interior regarding
the Tribe’s efforts to locate a parcel of land qualifying as a
“restoration of lands” under section 20 of the IGRA. As early as
2002, when Interior was considering the “restoration of lands”
determination, a member of the Butte County Board of
Supervisors had written to the NIGC urging the Secretary to take
the Chico parcel into trust because the Tribe “has historical and
cultural ties to the land planned for the reservation,” stating that
“[i]t was part of a large area that was to be deeded to the
Mechoopda under treaties signed in the mid-1800s,” and that the
Tribe’s proposed casino on the Chico parcel “would allow them
to reestablish a connection to the soil of their ancestors.” Letter
from Curt Josiassen, Member of the Butte County Board of
Supervisors (July 26, 2002). The letter also referenced the fact
that the County and the Tribe had discussed the proposed gaming
site in a series of meetings. Articles in Butte County newspapers
emphasized the Tribe’s connection to the Chico parcel. See, e.g.,
Editorial, It’s a Gamble, but at Least It’s a Chance, THE
ENTERPRISE–RECORD, Chico, CA, Apr. 9, 2002 (“Chico and

1
Section 476(f) provides:

Departments or agencies . . . shall not promulgate any
regulation or make any decision or determination . . . with
respect to a federally recognized Indian tribe that classifies,
enhances, or diminishes the privileges and immunities
available to the Indian tribe relative to other federally
recognized tribes by virtue of their status as Indian tribes.

25 U.S.C. § 476(f). See also 25 U.S.C. § 476(g); 25 U.S.C. § 479a,
Pub. L. 103-454, 108 Stat. 4791 Note (1994); 70 Fed. Reg. 71,194,
71,195 (Nov. 25, 2005).
 4

much of Butte County is literally built on the bones of the
Mechoopda.”).

The Tribe was originally federally recognized in the Treaty
of 1851, in which the United States promised to the Tribe land
located near the ranch of General John Bidwell.2 However, the
Treaty was never ratified and the land was not turned over to the
Tribe. See Anne H. Currie, Bidwell Rancheria, 36 CAL. HIST.
SOC’Y Q. 313, 315–16 (Dec. 1957). As a result of a change in
federal Indian policy and law, the Tribe’s federal recognition was
withdrawn in 19673 and assets of its rancheria were distributed.
See 32 Fed. Reg. 7981, 7981–82 (June 2, 1967). The Tribe sued
and in 1992 was reinstated to its former federal status as part of
a stipulated judgment between the Tribe, the United States, and
the City of Chico in Butte County, California. See Notice of
Reinstatement to Former Status for the Mechoopda Indian Tribe
of the Chico Rancheria, 57 Fed. Reg. 19,133 (May 4, 1992);
Order for Entry of Judgment and Judgment, Scotts Valley Band
of Pomo Indians of the Sugar Bowl Rancheria, et al. v. United
States, No. C-86-3660-VRW (N.D. Cal. 1992). The Tribe’s
attempt to have the Secretary take a parcel of land into trust in
1996 failed under the Secretary’s then–interpretation of section
20 of the IGRA. However, after litigation required the Secretary
to adopt a broader interpretation, the Tribe requested the
Secretary to take the Chico parcel into trust in November 2001,
finished acquiring the Chico parcel in December 2001, and on
March 26, 2002, requested the NIGC to determine whether the

2
See Treaty Made and Concluded at Bidwell’s Ranch, on
Chico Creek, August 1, 1851, Between O.M. Wozencraft, United
States Indian Agent, and the Chiefs, Captains and Head Men of the
Mi-Chop-Da, Es-Kuin, etc., Tribes of Indians.
3
See California Rancheria Act, Pub. L. No. 85-671, 72 Stat.
619 (1958), amended by Pub. L. No. 88-419, 78 Stat. 390 (1964).
 5

Chico parcel would qualify as a gaming site under the restoration
of lands provisions of section 20 of the IGRA.

The Tribe’s historical status with respect to the Chico parcel
was confirmed in a comprehensive determination by the NIGC
in 2003 in which Interior’s Solicitor concurred. The 2003
determination concluded that the Tribe had proven its historical
and cultural connection to the Chico parcel and that the parcel
qualified as restored Indian lands under IGRA and NIGC
regulations and should be taken into trust. See NIGC 2003
Determination at 10–11, 12 (Mar. 14, 2003). The determination
considered the factual circumstances of the Tribe’s acquisition
of the Chico parcel, the location of the Chico parcel (about ten
miles from the Tribe’s former rancheria on the Bidwell ranch,
the “Chico Rancheria”), and the Tribe’s historical and cultural
nexus to it as well as the temporal relationship between the
Tribe’s restoration to federal recognition in 1992 and the Tribe’s
acquisition of the Chico parcel in 2001, concluding that all of
these factors supported finding that taking the Chico parcel into
trust would constitute a “restoration of lands” to the Tribe for
purposes of IGRA section 20. In reaching this conclusion the
determination relied on the key studies of the origins of the
Tribe. These included the field notes of ethnologist C. Hart
Merriam, who had interviewed Chico Rancheria residents in
1903, 1919, and 1923 regarding the locations of Mechoopda
villages; the 2001 declaration of Craig Bates, the curator of
ethnography for Yosemite National Park — who had researched
and published over one hundred articles and papers on Native
Americans, sixteen of which directly related to the history and
culture of the Maidu Indians of California, including the
Mechoopda Tribe of Chico Rancheria — that the Tribe is the
sole surviving group of the Northwestern Valley Maidu Indians
and has historical and cultural connections to the Chico parcel;
and reports prepared in 2002 by ethnographer and historian Brian
Bibby, an expert on California Indian communities, describing
 6

connections among the Tribe, the Chico parcel, and the historical
villages of the Mechoopda. The 2003 determination noted that
the Chico parcel was within the boundaries of historical
Mechoopda village locations and within the boundaries of the
land promised to the Mechoopda in the unratified Treaty of
1851.

Also part of the administrative record was the Currie report,
published in 1957 in the California Historical Society Quarterly,
tracing the history of the Mechoopda Tribe since 1849, when
General John Bidwell purchased 22,000 acres of land including
land the Mechoopda Tribe occupied. See also Editorial, THE
ENTERPRISE–RECORD, Apr. 9, 2002 (“The Mechoopda did most
of the mining work that made John Bidwell rich and did much of
the work on his ranch that allowed him to prosper.”). The 2003
determination explained that although General and Mrs. Bidwell
had established a Mechoopda Indian village for their Indian
employees, and Mrs. Bidwell had deeded a 26-acre rancheria in
trust for the Tribe, this land was lost after the Tribe’s federal
recognition was terminated in 1967, and that the city of Chico,
California now occupies the site of the Tribe’s former rancheria.
Further, the 2003 determination noted that the 1992 stipulated
judgment stated the Tribe could not attempt to reestablish the
boundaries of its former rancheria.

The Tribe formally applied to the Secretary on March 19,
2004 to take the Chico parcel into trust as restored lands under
IGRA section 20. On April 8, 2004, the Secretary issued notice
of and sought comment on the Tribe’s application to take the
Chico parcel into trust, requesting comments within thirty days
from numerous California state and county officials. See 25
C.F.R. § 151.10. On July 23, 2004 the County wrote the Tribe
that, in view of its discussions with the Tribe about mitigation
measures, the County “withdraws any formal concerns regarding
the proposed location of the casino and the placement of the 650
 7

acres of land [i.e., the Chico parcel] into trust status.” Letter
from Paul McIntosh, Chief Administrative Officer for Butte
County, to Steve C. Santos, Tribal Chairman, Mechoopda Indian
Tribe of Chico Rancheria (July 23, 2004).

A year later, by letter of August 24, 2005 to the Secretary,
the NIGC, and the Solicitor’s Office, the Tribe expressed
concern that the County not “stall the Project” by delaying
agreement on mitigation measures. In a second letter to the
Secretary, dated October 25, 2005, the Tribe reported that after
five years of discussion about the Chico parcel and the Tribe’s
expenditure of over seven million dollars, the County was now
calling for the consideration of other sites.

On March 1, 2006, the County informed the Secretary that
it opposed development of a casino on the Chico parcel, noting
environmental objections. See Letter from Dennis Whittlesey,
Butte County Special Counsel for Gaming, to Gale Norton,
Secretary of the Interior (Mar. 1, 2006). However, three months
later the County shifted gears, challenging the Tribe’s existence
for the first time, and making a new request of the Secretary. It
is this request that underlies the County’s challenges to the
approval of the Tribe’s application to take the Chico parcel into
trust.

II.

By letter of June 16, 2006 to the Secretary, the Board of
Supervisors of Butte County asked the Secretary to “reject” the
legal determination made in 2003 by the NIGC and the Solicitor
that the Mechoopda Tribe is a historical tribe whose Chico parcel
qualifies to be taken into trust as restored lands. Informing the
Secretary that the County opposed the Tribe’s application for
restored lands, the County advised its position now was that “the
tribal members[’]” only “‘homeland’” was “the former Chico
 8

Rancheria” at the Bidwell Ranch and they “cannot demonstrate
any ties or connections to any other property.” Letter from
Dennis Whittlesey, Butte County Special Counsel for Gaming,
to Dirk Kempthorne, Secretary of the Interior, at 5 (June 16,
2006) (“County Letter of June 2006”). The letter also stated:

Butte County does not contest the Mechoopda’s
federal recognition. Indeed, we acknowledge that the
Department of the Interior has the legal right under the
Indian Reorganization Act to extend federal recognition
to groups of disparate Indians residing in a common
place. However, the Mechoopda is not a historical tribe
as is documented by the Beckham Report. To the
contrary, it was a “Rancheria Tribe” and the only land
ever occupied by the people who ultimately were
recognized as a tribe was the Bidwell Ranch property
set aside for their residency by the Bidwells.

County Letter of June 2006 at 5.

The Beckham Report, dated January 2006, was submitted to
the Secretary on June 16, 2006, and forwarded by the County to
the NIGC on July 14, 2006. Prepared by Stephen Dow
Beckham, a history professor at Lewis & Clark College in
Portland, Oregon, the report addressed the Bidwells’ history,
including their efforts to protect Indians and provide lands for
them to live on, and the ancestry of the Indians working for them
who lived on the Chico Rancheria set aside for them by the
Bidwells. Beckham concluded those Indians were “never an
Indian tribe with a federal government-to-government
relationship,” County Letter of June 2006 at 5 (quoting the
Beckham Report at 50), and so were not a historical tribe with
ties to the historical Mechoopda. In contrast to the
comprehensive historical analysis of the Tribe by the NIGC and
the Solicitor in 2003, the Beckham Report focused on the Chico
 9

Rancheria and did not address whether the Secretary should take
the Chico parcel into trust under section 5 of the IRA. The
Report also did not address the Bates, Bibby, or Currie studies
relied on in the 2003 determination. Neither did it mention the
Tribe’s original federal recognition in 1851. That is, Beckham
opined primarily that the Mechoopda’s inclusion of people of
mixed ancestry and surviving Indians from other Maidu villages
and tribes terminated tribal existence at the Chico Rancheria.

The Secretary responded to the County’s June 16, 2006
request by letter of August 28, 2006, from Acting Deputy
Assistant Secretary George T. Skibine. The Secretary
acknowledged the County’s opposition to the Tribe’s application
to take the Chico parcel into trust and recognized that the County
now was requesting the Secretary to reject the 2003
determination that the parcel would qualify as a “restoration of
lands” under IGRA section 20. The Secretary declined to do so:
“We are not inclined to revisit this decision now because the
Office of the Solicitor reviewed this matter in 2003, and
concurred in the NIGC’s determination of March 14, 2003.”

In Tourus Records, 259 F.3d 731, this court held that an
agency fulfills its obligation under 5 U.S.C. § 555(e)4 to provide
“a brief statement” of the grounds for denying an interested
party’s request where internal agency memoranda clarify the

4
Section 555(e) provides:

Prompt notice shall be given of the denial in whole or in part
of a written application, petition, or other request of an
interested person made in connection with any agency
proceeding. Except in affirming a prior denial or when the
denial is self-explanatory, the notice shall be accompanied by
a brief statement of the grounds for denial.

5 U.S.C. § 555(e).
 10

agency’s conclusory denial, id. at 737 (quoting 5 U.S.C. §
555(e)), 739. The court explained that the requirement for an
agency to provide a “brief statement” serves two purposes: first,
to ensure that the agency has given careful consideration to the
request, and second, to give the party an opportunity to inform
the agency of any errors it may have made and to facilitate
judicial review. Id. at 737. The court emphasized, however, that
“nothing more than a ‘brief statement’ is necessary” as long as
the agency explains “why it chose to do what it did.” Id.
(internal quotation marks omitted). In that case the court held
the agency’s denial of an in forma pauperis request, challenged
as being arbitrary and capricious, would have been insufficient,
standing alone, because the conclusory declaration that the
requestor’s affidavit of indigency was “inadequately supported”
did not explain why the agency regarded the request as
unsupported and was not “‘self-explanatory,’ 5 U.S.C. § 555(e)”
from the statement’s context. Id. The agency’s statement of
denial “provide[d] no basis upon which [the court] could
conclude that it was the product of reasoned decisionmaking.”
Id. However, because internal memoranda “represent[ing] the
‘contemporaneous explanation of the agency decision’” clarified
the agency’s rationale, the court determined a remand was
unnecessary and affirmed the agency’s denial. Id. at 738
(quoting Camp v. Pitts, 411 U.S. 138, 143 (1973)). The same
analysis applies here.

Notwithstanding its brevity, the Secretary’s letter revealed,
on its face, familiarity with the substance of the Beckham Report
and recognition that the Beckham Report sought to reopen the
question of the Tribe’s historical status, a matter
comprehensively addressed in the 2003 determination. The
Secretary refuted the assertions by the County and the conclusion
of the Beckham Report — namely that the Tribe had no identity
as a tribe before its federal recognition in 1992, even on the
Chico Rancheria — by pointing to the 2003 determination,
 11

which addressed the Chico Rancheria Indians’ status and the
broader reach of the Tribe’s history, including its federal
recognition in 1851, supra note 2. The laconic denial letter also
reflected the fact that the Beckham Report did not mention the
land being considered for trust status, instead challenging the
Tribe’s existence and the ability of Interior to restore any land at
all to the Tribe.

The rationale behind the Secretary’s decision is “self-
explanatory,” 5 U.S.C. § 555(e), upon comparing the 2003
determination and the Beckham Report. The Beckham Report
addressed only a portion of the Tribe’s historical record and did
not challenge, much less identify any deficiencies in, the expert
studies relied upon in the 2003 determination. The report also
did not refer to the Tribe’s broader history. For example, it
omitted any mention of the Tribe’s initial recognition in 1851,
even thought it took place at the Bidwell Ranch, supra note 2,
and it did not otherwise address the legal significance of that
status. Given the comprehensive analysis in 2003 based on
undisputed expert studies of the Tribe’s history and connection
to the Chico parcel, the County’s 2006 submission gave the
Secretary no reason to revisit that matter, particularly as the
County’s request was based in Interior’s view, as reflected in the
administrative record discussed infra, on the outlawed concept
of subcategories of federally recognized tribes, subcategories that
were thus beyond the Secretary’s authority to recognize. See
supra note 1. Rather, in view of the County’s previous efforts to
delay approval of the Tribe’s application, the Secretary had little
reason to conclude other than that the County’s latest attempt to
derail approval presented no basis for revisiting the matter
addressed three years earlier in the comprehensive determination
by the NIGC and the Solicitor.

Furthermore, the Secretary’s letter “does not stand as the
sole ‘explanation’ of the agency’s decisionmaking rationale.”
 12

Tourus Records, 259 F.3d at 738. The rationale for the
Secretary’s decision not to revisit the matter, and instead to rely
on the comprehensive and effectively unchallenged 2003
determination by the NIGC and the Solicitor, was elaborated in
contemporaneous documents in the administrative record that
were relied upon by the Assistant Secretary for Indian Affairs
who, on behalf of the Secretary, made the decision to approve
the Tribe’s application. First, Interior’s response to comments
during the NEPA proceeding described the County’s position in
its August 11, 2006 letter, which restated the views expressed in
its June 16, 2006 letter, as “challeng[ing] the [revised
environmental assessment (“REA”)] project site’s historical and
cultural significance to the Mechoopda Tribe.” Response to
Comments at 10. This response indicated that Interior
understood the County and the Beckham Report to be denying
the Tribe’s existence at the Chico Rancheria on the thesis that the
“modern” Tribe had no connection with the “historical”
Mechoopda Tribe that occupied vast areas of Butte County and
hence had no historical connection to any land. The County’s
June 16, 2006 and February 15, 2008 letters to the Secretary, and
its August 11, 2006 letter to the Regional Director of Interior’s
Bureau of Indian Affairs, reaffirm the correctness of this
interpretation of the Beckham Report as seeking to parse the
Tribe’s existence in a manner that undermined its status as a
federally recognized tribe.

Second, the Response to Comments described the Beckham
Report, the 2003 determination, and the Secretary’s letter
declining to revisit that determination, concluding that the Tribe
is federally recognized and listed as such pursuant to federal
statute and that under a statute enacted in 1994 only Congress
can terminate that status. See Response to Comments at 10–11;
supra note 1. The response emphasized that the Beckham Report
was addressing “[i]ssues regarding tribal membership, historical
land ownership and aboriginal territory,” Response to Comments
 13

at 10, that the Tribe is now federally recognized, that it “was first
recognized as a sovereign tribal entity in 1851, when the United
States first executed a treaty, never ratified, with the Tribe,” and
that only Congress can terminate the federal recognition of a
Tribe, id. at 11. This is a direct response to the assertions of the
County and the conclusion of the Beckham Report in 2006. The
response was prepared by Interior’s Pacific Regional Office, and
it was that office’s 2007 memorandum recommending that the
Chico parcel be taken into trust on which the Secretary, acting
through the Assistant Secretary for Indian Affairs, relied when
he approved on March 14, 2008 the Tribe’s application to take
the Chico parcel into trust as restored lands.

Thus, the “brief statement” in the Secretary’s August 28,
2006 letter responding to the County’s request was adequate
under 5 U.S.C. § 555(e), because it explained “why [the
Secretary] chose to do what [the Secretary] did,” Tourus
Records, 259 F.3d at 737 (internal quotation marks omitted), and
the rationale for the Secretary’s decision to rely on the 2003
determination was self-explanatory. The Beckham Report did
not purport to address the Tribe’s history comprehensively as did
the 2003 determination and did not suggest the expert studies on
which the 2003 determination relied were flawed. Although the
court “may not supply a reasoned basis for the agency’s action
that the agency itself has not given, SEC v. Chenery, 332 U.S.
194, 196 (1947),” the court “will uphold a decision of less than
ideal clarity if the agency’s path may reasonably be discerned.”
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419
U.S. 281, 286 (1974); Motor Vehicle Mfrs. Ass’n of the U.S. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Contemporaneous agency memoranda elaborated the Secretary’s
rationale, making explicit that what the County and the Beckham
Report were suggesting was that the Indians who lived on the
Chico Rancheria had no tribal existence and so could show no
connection to the Chico parcel or any other land, and thus that
 14

the Secretary should reject the 2003 determination and treat the
federally recognized Tribe as entitled to diminished privileges
compared to other federally recognized tribes. The
administrative record further reveals that the Secretary
considered the County’s views and the Beckham Report in
issuing, through the Assistant Secretary for Indian Affairs, a
Finding of No Significant Impact (“FONSI”), stating that “[t]his
[FONSI] conclusion is based on the analysis contained in the
REA, public comments made on the REA, the response to those
comments, and the mitigation imposed.” Carl Artman, Assistant
Secretary for Indian Affairs, FONSI for the Proposed
Mechoopda Indian Tribe Chico Casino Fee-to-Trust Acquisition,
at 19 (Jan. 4, 2008) (emphasis added). Because the NEPA
process is a legal requirement with which the Secretary had to
comply, the statement that the Secretary based his conclusions on
the Response to Comments is not gratuitous.

The Secretary’s response to the County is consistent with
our precedent that an agency need not restart its analysis
whenever a new report is submitted. Cf. Appalachian Power Co.
v. EPA, 249 F.3d 1032, 1059 (D.C. Cir. 2001); Pers. Watercraft
Indus. Ass’n v. Dep’t of Commerce, 48 F.3d 540, 542–43 (D.C.
Cir. 1995). Otherwise, an agency could be “reasonably
concerned that an unyielding avalanche of information might
overwhelm an agency’s ability to reach a final decision,” Village
of Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006), or that
parties could “behave like Penelope,[5] unravelling each day’s
work to start the web again the next day,” Western Coal Traffic

5
So every day she wove on the great loom—
but every night by torchlight she unwove it;
and so for three years she deceived the Akhaians.

Homer, The Odyssey, Book II, lines 112-114 (Robert Fitzgerald trans.
1961).
 15

League v. ICC, 735 F.2d 1408, 1411 (D.C. Cir. 1984). The
effect of the County’s 2006 submission of the Beckham Report
was to ask the Secretary to start the fee-to-trust process for the
Chico parcel all over again, when the record shows the County
had opportunities, and took advantage of them, to make its views
known before and after the 2003 legal determination was
rendered. Given the limited analysis in the Beckham Report, the
Secretary could reasonably decide, for the reasons the
contemporaneous administrative record reveals, to rely on the
expert evidence assembled by the NIGC in preparing the
comprehensive 2003 determination showing the Tribe’s
historical connection to the Chico parcel. See City of Roseville
v. Norton, 348 F.3d 1020, 1027 (D.C. Cir. 2003). Although the
Secretary did not publish his final decision of March 14, 2008 to
take the Chico parcel into trust until May 8, 2008, that did not
mean the County’s 2006 submissions required the Secretary, like
Penelope, to begin anew an examination of the issue of the
Tribe’s status as a historical tribe with connections to the Chico
parcel, a matter previously considered in a comprehensive
determination by the NIGC and the Solicitor that remained
effectively unchallenged.

III.

Construing the County’s June 16, 2006 letter as a challenge
to the restored lands determination of 2003, rather than to the
Tribe’s existence, the County fails to show that Interior’s
determination that the Mechoopda Tribe has a significant
historical and cultural nexus to the Chico parcel was arbitrary
and capricious. In this “‘classic example of a factual dispute the
resolution of which implicates substantial agency expertise,’” the
court “only inquire[s] whether the agencies have based their
policy choices on reasonable expert evidence,” and “because the
agencies have relied upon sufficient expert evidence to establish
a rational connection between the facts and the choice made, it
 16

was not arbitrary and capricious for them” to weigh the
competing expert opinions as they did. Wis. Valley Improvement
Co. v. FERC, 236 F.3d 738, 747 (D.C. Cir. 2001) (quoting Marsh
v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989)) (internal
quotation marks and citation omitted). The Secretary and the
NIGC satisfied their obligations under the Administrative
Procedure Act, 5 U.S.C. § 706, by “enabl[ing] [the court] to see
what major issues of policy were ventilated . . . and why the
agency reacted to them as it did.” Milk Indus. Found. v.
Glickman, 132 F.3d 1467, 1476 (D.C. Cir. 1998) (quoting
Republican Nat’l Comm. v. Fed. Election Comm’n, 76 F.3d 400,
407 (D.C. Cir. 1996)) (ellipsis in original). The County failed to
show that the challenged decisions were not based on
consideration of the relevant factors, much less that its views or
the Beckham Report were ignored or unevaluated. See State
Farm, 463 U.S. at 43; cf., e.g., City of Waukesha v. EPA, 320
F.3d 228, 257–58 (D.C. Cir. 2003).

The County’s contentions reduce to an argument that the
Tribe, descending from Indians who worked for the Bidwells in
the mid-nineteenth century, lacks a connection to the historical
Mechoopda Tribe and thus lacks a connection to the Chico
parcel. The administrative record is replete with evidence that
establishes the Tribe is the historical Mechoopda tribe with the
requisite connections. The 2003 determination cited expert
reports and materials that the Beckham Report did not consider
or challenge, and the Beckham Report omitted mention of the
Tribe’s federal recognition in the unratified 1851 Treaty and its
significance. Neither Currie nor Bates nor Bibby, who reviewed
Merriam’s field work, concluded the Tribe had no relation to the
historical Mechoopda Tribe. These experts instead viewed the
Tribe as connected to the historical Mechoopda Tribe. The
County’s fundamental argument that the Tribe lost a connection
to the historical Mechoopda Tribe by incorporating people of
mixed race and Indians from Northwestern Valley Maidu
 17

villages and other tribes finds no support in the law. See, e.g.,
City of Roseville, 348 F.3d at 1022. Moreover, the records cited
in the Beckham Report did not show that the Tribe included
people with no Indian ancestry (except for some spouses), but
rather that many tribal members identified their ancestors as
Mechoopda Tribe members or survivors of other Maidu tribes
from the region.

Looking to the full historical reach of the Mechoopda and
Northwestern Valley Maidu, rather than narrowly to the time at
the Chico Rancheria, was not arbitrary or capricious. See id. at
1027. In submitting the Beckham Report the County did not
suggest that it represented more than another view of a limited
aspect of the historical record considered in the 2003
determination by the NIGC and the Solicitor. Even in
challenging the Bibby Report in its August 11, 2006 letter, the
County cited only the Beckham Report and ignored the other
expert reports relied upon in the 2003 determination. Both the
Secretary’s August 28, 2006 letter and contemporaneous agency
memoranda revealed familiarity with the County’s views and the
substance of the Beckham Report, and the Secretary, through the
Assistant Secretary for Indian Affairs, in approving the Tribe’s
application relied on the agency commentary addressing the
report’s (and thus the County’s) approach. The Secretary and the
NIGC reasonably looked to the full history of the Mechoopda
and Northwestern Valley Maidu rather than simply the story of
the Chico Rancheria, as the Beckham Report did. See id. at
1027.

Accordingly, because the court, contrary to our precedent in
Tourus Records, in finding a violation of 5 U.S.C. § 555(e) turns
a blind eye to the evidence in the administrative record that
explains the Secretary’s decision not to revisit the matter
addressed in the 2003 determination, and because the challenged
decisions by the Secretary and the NIGC are supported by
 18

substantial evidence in the record, I would affirm the grant of
summary judgment to the Secretary, the NIGC, and the Tribe,
and I respectfully dissent.