United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2005 Decided January 6, 2006
No. 05-5206
TOMAC, TAXPAYERS OF MICHIGAN AGAINST CASINOS,
A MICHIGAN NON-PROFIT CORPORATION,
APPELLANT
v.
GALE A. NORTON, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE UNITED STATES
DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00398)
Robert J. Jonker argued the cause for appellant. With him
on the brief were Daniel P. Ettinger, Joseph A. Kuiper, and
Rebecca A. Womeldorf.
Lisa E. Jones, Attorney, U.S. Department of Justice, argued
the cause for Federal Appellees. With her on the brief was
Elizabeth A. Peterson, Attorney.
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Kaighn Smith, Jr. argued the cause for Non-Federal
Appellees. With him on the brief were Matthew T. McGrath
and Cortney O. Morgan.
Before: GINSBURG, Chief Judge, RANDOLPH, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: The Pokagon Band of
Potawatomi Indians (“Pokagon Band” or “Tribe”) consists of
approximately 2,700 members. The Tribe has resided primarily
in its ancestral homeland in the St. Joseph River Valley in
southwestern Michigan and northern Indiana since at least 1634.
See 25 U.S.C. § 1300j (2000); S. REP. NO. 103-266, at 1 (1994).
After years of dealing with the United States in government-to-
government relations, the Tribe was administratively terminated
in 1935, when its application for recognition was denied under
the Indian Reorganization Act of 1934 (“IRA”), 48 Stat. 984
(codified as amended at 25 U.S.C. § 461 et seq. (2000)).
Thereafter, the Tribe made numerous attempts to reclaim its
recognition, and finally achieved that goal in 1994, with the
enactment of the Pokagon Restoration Act (“Restoration Act” or
“Act”), 25 U.S.C. § 1300j et seq. The Act restored federal
services to the Pokagon Band, but it provided no funding, so the
Tribe has been forced to seek ways to achieve economic self-
sufficiency.
The Tribe has determined that the most effective way to
generate revenue is to build and operate a gaming resort. To
that end, the Tribe signed a gaming compact with the State of
Michigan in 1997 and then purchased rights to the land
necessary for the project. Upon application to the Department
of Interior’s Bureau of Indian Affairs (“BIA” or “Bureau”), the
Secretary of the Interior (“Secretary”) agreed to take those lands
into trust under 25 U.S.C. § 1300j-5, which permits the
3
Secretary to take land into trust for the purpose of becoming part
of the Tribe’s reservation.
The Bureau’s decision to take this land into trust is now
challenged by the Taxpayers of Michigan Against Casinos
(“TOMAC”), a group that includes residents who live adjacent
to the proposed casino site. In three decisions, the District Court
issued judgments for the Department of the Interior (“Interior”)
on each of TOMAC’s claims. The District Court held, inter
alia, that: (1) BIA reasonably concluded that it only had to
prepare an environmental assessment (“EA”) and not an
environmental impact statement (“EIS”) under the National
Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§
4321-4347, TOMAC v. Norton, No. Civ.A.01-0398, 2005 WL
2375171, at *6 (D.D.C. Mar. 24, 2005) (“TOMAC III”); (2) the
Pokagon Band fell within the “restored lands exception” of the
Indian Gaming Regulatory Act (“IGRA”), because it was
“restored” to federal recognition under the Restoration Act,
TOMAC v. Norton, 193 F. Supp. 2d 182, 192-94 (D.D.C. 2002)
(“TOMAC I”); and (3) Congress’s delegation to the Secretary to
“acquire real property . . . . in trust for the benefit of the Band”
under the Restoration Act, 25 U.S.C. § 1300j-5, was not an
unlawful delegation of legislative power, TOMAC I, 193 F.
Supp. 2d at 191-92.
TOMAC now appeals from the District Court’s successive
grants of summary judgment to Interior, challenging each of the
aforementioned findings. We conclude that TOMAC’s claims
have no merit and affirm the District Court’s grants of summary
judgment.
I. BACKGROUND
A. The Pokagon Band of Potawatomi Indians
The Pokagon Band has a long history of dealings with the
United States government, including involvement in 11 treaties
with the federal government from 1795-1833. See 25 U.S.C. §
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1300j. One such treaty, the Treaty of Chicago, 7 Stat. 431
(1833), involved the ceding of 5,000,000 acres by several tribes
to the federal government in 1833 in exchange for a series of
payments and a tract of equal size west of the Mississippi River.
Hannahville Indian Cmty. v. United States, 4 Cl. Ct. 445, 447
(1983). While this agreement pushed many of the Potawatomi
bands west, the Pokagon Band held steadfast and negotiated a
supplement to the treaty, which gave them the right to remain in
their Michigan homeland. See id. at 447-48; S. REP. NO. 103-
266, at 2; H.R. REP. NO. 103-620, at 2 (1994).
In 1935, the Pokagon Band petitioned for reorganization
under the newly minted IRA, which terminated the federal
government’s allotment policy and restored to Indians the
management of their assets. While tribal governments located
in Michigan’s upper peninsula were granted federal services
under the IRA, those in its lower peninsula, such as the Pokagon
Band, were denied services and benefits due to an administrative
decision predicated on the “misguided assumption that residence
on trust lands held in common for the Band was required for
reorganization and the fact that appropriations to purchase such
lands had run out.” H.R. REP. NO. 103-620, at 5; see also S.
REP. NO. 103-266, at 3-4. According to the Senate committee
report leading to the passage of the Restoration Act authored
nearly 60 years later, the Pokagon Band “was unfairly
terminated as a result of both faulty and inconsistent
administrative decisions contrary to the intent of the Congress,
federal Indian law and the trust responsibility of the United
States.” S. REP. NO. 103-266, at 6.
To remedy this injustice, Congress enacted the Restoration
Act in 1994. The Act’s specific purpose is to “reaffirm and
clarify the federal relationship of the Pokagon Band of
Potawatomi Indians of Michigan as a distinct federally
recognized Indian tribe, to reaffirm the jurisdiction and other
rights of the tribe, provide for the establishment of a trust land
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base for the tribe,” and “authorize the organization of the tribe
and for other purposes.” Id. at 1. The Tribe’s status as a
federally recognized tribe was reestablished, 25 U.S.C. §
1300j-1, thus bringing the Tribe within the umbrella of federal
services and benefits extended to other federally recognized
tribes, 25 U.S.C. § 1300j-2. In recognition of its ancestral
homelands and the need for the Tribe to establish a reservation
land base, Congress directed the Secretary to acquire real
property for the Tribe, by taking land in trust to become part of
its reservation. 25 U.S.C. § 1300j-5. Congress also delineated
a 10-county area – encompassing the Tribe’s current and
ancestral homeland – where it is eligible to receive the federal
services that accompany recognition. See 25 U.S.C. § 1300j-6.
The Restoration Act, however, did not provide any funding,
so the Tribe had to consider economic development projects that
would enable it both to restore its land base and to fund tribal
governmental activities and services. The Tribe concluded that
the only economic development that would attract sufficient
capital would be a gaming and recreational facility.
Consequently, in 1997 the Tribe entered into a compact with the
State of Michigan in accordance with 25 U.S.C. § 2710(d)
(2000) to permit the Tribe to conduct Class III (casino-style)
gaming on “eligible Indian lands.” See Compact Between the
Pokagon Band of Potawatomi Indians and the State of Michigan
Providing for the Conduct of Tribal Class III Gaming by the
Pokagon Band of Potawatomi Indians at 2-3 (Jan. 29, 1997),
reprinted in Pokagon Band of Potawatomi Indians Township of
New Buffalo Trust Consolidation Site Trust Application (Mar.
2000), app. 3 (“Trust App.”), Joint Appendix (“J.A.”) 1324.
Interior approved this agreement on February 18, 1999. Indian
Gaming, 64 Fed. Reg. 8,111 (Feb. 18, 1999).
The Tribe also entered into a “Memorandum of
Understanding” (“Memorandum”) with the Secretary, which
spelled out the amount of land to be taken into trust under the
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Restoration Act, the area in which that land was to be located,
and the preference that, whenever possible, the land acquired
would be contiguous. Memorandum of Understanding (Jan. 11,
1999), reprinted in Trust App., supra, tab 2, J.A. 1321. In
addition, the Secretary confirmed that the Pokagon Band is a
“restored” tribe within the meaning of § 2719(b)(1)(B) of IGRA,
making it eligible for Class III gaming without having to
undertake the more burdensome route to approval under §
2719(b)(1)(A). See 25 U.S.C. § 2719(b)(1)(A), (B).
The Tribe subsequently purchased in fee 26 separate and
contiguous parcels of land across 675 acres within New Buffalo
Township in Berrien County, Michigan, and then submitted an
application to BIA requesting that the United States take the
land into trust for the Tribe. A portion of that land would house
the 110,000 square-foot gaming facility, five or six restaurants,
a variety of gift shops, a child care facility, a 200-room first
class hotel, and a surface parking lot and parking garage.
Before proceeding with the project, the Bureau was required
under NEPA to assess the potential environmental impacts of
the gaming resort. NEPA obligates an agency to prepare a
detailed, comprehensive EIS if its proposal constitutes a “major
Federal action[] significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C) (2000). To determine
what actions meet the § 4332(2)(C) threshold, the Bureau has
adopted as advisory guidelines the regulations of the Council of
Environmental Quality (“CEQ”), which was established by
NEPA to interpret the statute. See DOT v. Pub. Citizen, 541
U.S. 752, 757 (2004); NEPA Handbook, Bureau of Indian
Affairs Manual Supplement 1, §§ 1.1(B), 1.2, 1.3, J.A. 730-31.
Those regulations permit agencies to issue first an EA, which is
a “less detailed document which may be used to determine
whether or not an EIS is required.” Id. § 2.2, J.A. 736. If, based
on the EA, the agency finds that an EIS is not necessary, the
Bureau may issue a “Finding Of No Significant Impact”
7
(“FONSI”), which “fulfills the documentation requirements
established by the CEQ regulations.” Id.; see 40 C.F.R. §§
1501.4(e), 1508.9, 1508.13 (2005).
After working closely with the Tribe, an environmental
consultant, and other federal agencies including the United
States Fish and Wildlife Service and the Environmental
Protection Agency (“EPA”) for several months, BIA issued a
draft EA of the casino project on November 21, 2000 and made
it available for a 30-day comment period. In response to the
comments received, BIA prepared a revised and modified
assessment in January 2001. The EA analyzed a range of
potential impacts of the proposed trust acquisition on geology
and soils, prime and unique farmland, groundwater, floodplains,
wetlands, wildlife habitat, vegetation, threatened and
endangered species, air quality, noise, and cultural resources.
See EA (Jan. 2001) at 17-30, J.A. 329-42. It also addressed
potential impacts on socioeconomics and other issues related to
growth induced by the proposed facility. Id. at 30-45, J.A. 342-
57.
On January 19, 2001, BIA issued a FONSI for the trust
acquisition. The Bureau explained that implementation of the
proposed actions with corresponding mitigation measures, “will
have no significant impact on the quality of the human
environment” within the meaning of NEPA. Proposed Pokagon
Band of Potawatomi Indians of Michigan Gaming Facility,
FONSI, BIA (Jan. 19, 2001), J.A. 308. Thus, an EIS was not
warranted. BIA subsequently issued a “Notice of Intent to Take
Land into Trust” on January 22, 2001.
B. Procedural History
On February 21, 2001, TOMAC filed a complaint in the
United States District Court for the District of Columbia seeking
injunctive and declaratory relief against Interior on three
grounds that are relevant to this appeal. TOMAC first alleged
8
that the Secretary’s trust acquisition decision violated NEPA,
because the gaming and recreation complex will significantly
impact the area surrounding the site. Second, TOMAC asserted
that the Secretary violated IGRA, because the Restoration Act
did not “restore” the Tribe within the meaning of IGRA such
that the Tribe qualified for the “restored land exception” to
IGRA’s gaming ban on lands acquired after October 17, 1988.
Finally, TOMAC contended that Congress unconstitutionally
delegated to the Secretary unlimited authority to acquire land for
the Tribe under the Restoration Act.
In response to TOMAC’s claims, BIA challenged
TOMAC’s Article III and prudential standing to bring its NEPA
and IGRA claims, and also moved to dismiss TOMAC’s IGRA
and constitutional claims for failure to a state claim. In the
alternative, BIA moved for summary judgment. The City and
Township of New Buffalo and the Tribe moved and were
permitted to intervene in the proceedings on behalf of the
Government. Thereafter, the United States and TOMAC entered
into a stipulation whereby the United States agreed not to take
the land into trust during the pendency of the District Court
litigation (which has been renewed for the purposes of this
appeal).
On March 29, 2002, the District Court rejected BIA’s
standing contentions, TOMAC I, 193 F. Supp. 2d at 188, 190-91,
but granted summary judgment against TOMAC on its IGRA
and nondelegation claims, id. at 191-94. In a separate decision,
the District Court considered TOMAC’s NEPA challenges
concerning wetlands, threatened species, endangered species,
and impacts from growth and development. TOMAC v. Norton,
240 F. Supp. 2d 45, 48-52 (D.D.C. 2003) (“TOMAC II”).
Regarding the first three issues, the District Court concluded that
BIA sought out and properly considered the available data,
thereby fulfilling its responsibility under NEPA. Id. at 48-50.
The District Court did not find that BIA engaged in the same
9
level of analysis, however, with respect to the indirect effects
related to growth induced by the gaming and recreation
complex. The trial court noted that while this case was “a much
closer call than cases in which agencies simply failed to address
growth inducing effects at all,” BIA failed both to “address
related effects on air and water and other natural systems,
including ecosystems,” and to explain clearly its “conclusion
that an increase of 5,600 new jobs, 800 new employees and their
families, and related changes in physical development and
natural resource use will not have a significant effect on a
community of 4,600.” Id. at 51-52 (quotation marks and citation
omitted). Based on these flaws, the District Court temporarily
enjoined BIA from taking the land into trust, and remanded the
EA to the agency “for such further evaluation and elaboration of
its reasoning as BIA desires to submit concerning secondary
growth issues.” Id. at 52.
C. Supplement to the EA
On remand, BIA prepared a supplement to its EA (“EA
Supplement”) to update and expand its earlier analysis and to
focus on the District Court’s secondary impact concerns. See
EA Supplement (Aug. 2003), J.A. 776. In addition to
identifying the specific geographic areas potentially impacted by
the gaming resort, Interior predicted the pattern and extent of
casino-induced residential and commercial growth by analyzing,
among other things, zoning laws, permitting requirements,
economic forecasts, demographics, available utilities,
environmental regulations, and land use practices. These
development predictions were used to analyze potential impacts
on natural and cultural resources including the water supply,
sewer system, air quality, transportation and traffic, and public
safety. The Bureau also evaluated potential “cumulative
impacts” of the gaming resort in combination with other past,
present, and potential future operations in the area, and provided
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detailed mitigation measures to address any potential significant
impacts.
The Bureau concluded that the only potentially significant
impact from induced growth was an increased demand for water
and sewage services which might tax the existing capacities of
those systems. In both cases, the Bureau found that the Tribe’s
agreement to cover significant portions of the costs to build a
new water plant and distribution system, as well as to install
oversized sewer lines, sufficiently mitigated any potential harm.
Particularly germane to this appeal is BIA’s analysis of the
gaming resort’s direct and indirect impacts on local air quality.
In TOMAC II, the District Court found the EA’s analysis of the
project’s impact on air quality to be lacking, primarily because
BIA’s traffic study was insufficient. TOMAC II, 240 F. Supp.
2d at 51 (noting that the EA failed to estimate the impact of the
non-casino traffic growth generated by the 17% growth in
residency expected as a result of the project). In preparing its
EA Supplement, the Bureau commissioned Soil and Materials
Engineers, Inc. (“SME”) to prepare a revised air quality study.
In the revised assessment, BIA directed SME to broaden its
focus to capture the impact on air quality of the indirect
development activity as a result of the gaming resort. SME thus
examined four potential air quality impacts: (1) “vehicle
emissions resulting from increased traffic associated with
indirect development throughout the region,” (2) “stationary
source emissions from establishments that are anticipated to be
built in the region,” (3) “construction related emissions,” and (4)
“ambient air quality contaminants from facilities and activities
in the vicinity of the project site.” Report of Air Quality Impact
Assessment, Soil & Materials Engineers, Inc. at i (July 11,
2003), reprinted in EA Supplement, supra, at app. BB, J.A.
1105 (“SME Supplementary Report”).
SME employed the same methodology in the revised
analysis as it did in its original examination, using carbon
11
monoxide as a predictive tool for meeting the then-existing
National Ambient Air Quality Standards (“NAAQS”) under the
Clean Air Act (“CAA”). Since carbon monoxide is more likely
than the other relevant contaminants (e.g., particulate matter,
nitrogen oxide, and hydrocarbons) to impact air quality, a
finding of de minimis carbon monoxide impact would indicate
that the other criteria air pollutants would likely be in
compliance. Based on SME’s updated study, BIA confirmed
that “[c]arbon monoxide and other NAAQS criteria air
pollutants expected to be produce[d] by the indirect effects from
the Project indicates that those air pollutants will be in
compliance with [then-existing] NAAQS standards.” EA
Supplement, supra, at 48, J.A. 825. In addition, SME concluded
that since ozone, hydrocarbons, and nitrogen oxide are “regional
in nature[,] . . . . meaningful evaluation” of their effects “on a
project-by-project basis is not practical.” SME Supplementary
Report, supra, at 8, J.A. 1113.
In both its EA and EA Supplement, the Bureau continued to
evaluate air quality impact based in part on EPA’s then-existing
more lenient 1-hour ozone standard. Under that standard,
Berrien County was considered an area of “attainment” – i.e., in
compliance with the CAA. While EPA had promulgated a more
rigorous 8-hour standard in 1997 that put Berrien County’s
attainment status in jeopardy, see National Ambient Air Quality
Standards for Ozone, 62 Fed. Reg. 38,856 (July 18, 1997)
(codified at 40 C.F.R. § 50.10 (2005)), on-going litigation left its
implementation in doubt at the time the EA was produced. See
Am. Trucking Ass’ns v. EPA, 283 F.3d 355 (D.C. Cir. 2002)
(“Am. Trucking I”); Am. Trucking Ass’ns v. EPA, 175 F.3d 1027,
reh’g granted in part and denied in part, 195 F.3d 4 (D.C. Cir.
1999), rev’d in part sub nom. Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) (“Am. Trucking II”). In addition, while
EPA’s 8-hour standard was upheld in 2002, Am. Trucking I, 283
F.3d at 379, Berrien County was not designated “nonattainment”
until June 15, 2004. See Air Quality Designations and
12
Classifications for the 8-Hour Ozone National Ambient Air
Quality Standards, 69 Fed. Reg. 23,858, 23,910 (Apr. 30, 2004)
(to be codified at 40 C.F.R. pt. 81) (“8-Hour Standards”), which
was almost a year after SME’s second study was completed.
The Bureau suggested, however, that in the event that
Berrien County became designated an area of nonattainment
prior to project construction, “a General Conformity Analysis
would be required.” EA, supra, at 25, J.A. 337. A conformity
analysis, which is required by the CAA for federal actions
within nonattainment and maintenance areas, must demonstrate
how the actions conform to the existing State Implementation
Plan to remedy the air pollution problem. See 42 U.S.C. §
7506(c) (2000).
On November 20, 2003, based upon the analysis in the EA
and the EA Supplement, BIA issued a Revised FONSI, in which
it renewed its position that implementation of the proposed
action would have no significant impact on the human
environment and that an EIS was not required. Following this
issuance, Interior filed a renewed motion for summary judgment
and relief from the temporary injunction imposed by the District
Court. On March 24, 2005, the District Court issued an order
finding that Interior had “fully complied” with NEPA, and
granted its summary judgment motion and lifted the temporary
injunction. TOMAC III, 2005 WL 2375171, at *1. In granting
summary judgment for Interior, the District Court rejected
TOMAC’s claims that BIA had failed to provide an adequate
opportunity for public comment, id. at *2, and held that BIA
adequately addressed the impact of the project on air quality and
local water and sewer systems, as well as the “cumulative
impacts” of the gaming resort. Id. at *2-5.
TOMAC now appeals the District Court’s successive grants
of summary judgment to Interior. In turn, Interior and
intervenors renew their claims that TOMAC lacks standing.
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II. ANALYSIS
We note at the outset that we agree with the District Court’s
finding that TOMAC has Article III and prudential standing to
challenge BIA’s actions under both NEPA and IGRA. See Nat’l
Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S.
479, 492 (1998) (prudential standing); Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 672 (D.C. Cir. 1996) (en banc) (NEPA);
Humane Soc’y of the U.S. v. Hodel, 840 F.2d 45, 53-59 (D.C.
Cir. 1988) (germaneness). There is no serious question about
TOMAC’s standing that warrants further discussion by this
court.
Our review of the District Court’s grants of summary
judgment is de novo. George v. Leavitt, 407 F.3d 405, 410
(D.C. Cir. 2005).
A. Environmental Assessments
The court’s role in reviewing an agency’s decision not to
issue an EIS is a “limited” one, designed primarily to ensure
“that no arguably significant consequences have been ignored.”
Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d
256, 267 (D.C. Cir. 1988). The evaluation of the “‘impact’ of
those consequences on the ‘quality of the human environment,’
. . . is ‘left to the judgment of the agency.’” Id. (quoting Sierra
Club v. DOT, 753 F.2d 120, 128 (D.C. Cir. 1985)). This court
will overturn an agency’s decision to issue a FONSI – and
therefore not to prepare an EIS – only “if the decision was
arbitrary, capricious, or an abuse of discretion.” Sierra Club v.
Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983). When
examining a FONSI, our job is to determine whether the agency:
(1) has “‘accurately identified the relevant environmental
concern,’” (2) has taken a “‘hard look’” at the problem in
preparing its EA, (3) is able to make a convincing case for its
finding of no significant impact, and (4) has shown that even if
there is an impact of true significance, an EIS is unnecessary
14
because “‘changes or safeguards in the project sufficiently
reduce the impact to a minimum.’” Town of Cave Creek v. FAA,
325 F.3d 320, 327 (D.C. Cir. 2003) (quoting Sierra Club v.
DOT, 753 F.2d at 127).
1. Public Comment
Before attacking the substance of the EA, TOMAC argues
that BIA’s decision not to afford an additional round of public
comment following the District Court’s remand precludes this
court from finding the Bureau’s ultimate action reasonable.
TOMAC asserts that CEQ regulations encourage public
involvement when preparing an EA, and points to BIA’s own
NEPA handbook which states that the public should have
“meaningful opportunities” for participation in BIA actions that
significantly affect them.
As an initial matter, we note that the binding effect of CEQ
regulations is far from clear. See City of Alexandria v. Slater,
198 F.3d 862, 866 n.3 (D.C. Cir. 1999) (stating that CEQ “has
no express regulatory authority under [NEPA],” as it was only
empowered to issue “binding” regulations by presidential
executive order). But see Andrus v. Sierra Club, 442 U.S. 347,
358 (1979) (noting that the CEQ’s NEPA interpretations are
entitled to “substantial deference”). Even so, nothing in the
CEQ regulations suggests that another comment round is
necessary following an agency’s issuance of a supplemental EA.
And two of our sister Circuits have found that public input
during the EA process is not required. See Alliance to Protect
Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 398 F.3d 105,
115 (1st Cir. 2005); Greater Yellowstone Coal. v. Flowers, 359
F.3d 1257, 1279 (10th Cir. 2004). In rejecting a party’s call for
an EIS, the Tenth Circuit noted that “NEPA’s public
involvement requirements are not as well defined when an
agency prepares only an EA and not an EIS.” Greater
Yellowstone Coal., 359 F.3d at 1279. The Tenth Circuit found
significant the comparison between 40 C.F.R. §§ 1503.1 and
15
1503.4, which require agencies preparing an EIS to make an
initial draft available for public comment, and § 1501.4(b),
which only obligates agencies to “involve . . . the public, to the
extent practicable, in preparing [EAs],” and § 1501.4(e)(2),
which requires agencies to make a FONSI available for public
review prior to their final decision only in specific
circumstances that are not applicable here. Id. At a minimum,
this suggests that the agency has significant discretion in
determining when public comment is required with respect to
EAs.
The record here indicates that BIA sought comment on the
original draft EA and provided detailed responses to comments
it received. The EA Supplement merely amplified the issues
that had been addressed in BIA’s original 2001 EA, so the
agency reasonably concluded that further public comment was
unnecessary. On this record, we find no merit in TOMAC’s
claim that another round of public comment was required. BIA
acted appropriately given the prior public involvement, and no
statute or regulation requires anything more.
2. Size of the Project and Report
In contending that an EIS is in order, TOMAC first argues
that the sheer magnitude of the proposed gaming resort, as well
as the length and complexity of the resulting EA, indicates that
an EIS is necessary. In terms of the project’s size, TOMAC
avers that the anticipated arrival of 4.5 million visitors a year to
a rural community of less than 5,000 residents suggests that BIA
should produce an EIS. Similarly, TOMAC claims that because
BIA spent four-and-a-half years and generated almost 900 pages
of data and analysis examining the potential environmental
impacts of the proposed gaming resort, it is clear that an EIS is
needed. These claims miss their mark.
TOMAC offers no support for the proposition that an EIS
is required when a project reaches a certain size. The relevant
16
benchmark is whether the federal action “significantly affect[s]
the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
Large federal projects may, on the average, be more likely to
meet this threshold. But there is no categorical rule that sizable
federal undertakings always have a significant effect on the
quality of the human environment.
Similarly, the significant time and effort BIA has spent
preparing its EA does not alone prove that an EIS is obligatory.
TOMAC relies on the CEQ guidelines, which advise that an EA
should be no more than 10-15 pages in length. Br. of Plaintiff-
Appellant at 26 (citing Forty Most Asked Questions Concerning
CEQ’s National Environmental Policy Act Regulations, 46 Fed.
Reg. 18,026 (Mar. 23, 1981)). This guideline is not a binding
regulation, however. See Davis v. Mineta, 302 F.3d 1104, 1125
n.17 (10th Cir. 2002). The simple point here is that the length
of an EA has no bearing on the necessity of an EIS. See Sierra
Club v. Marsh, 769 F.2d 868, 875 (1st Cir. 1985) (“EA length,
complexity, and controversy . . . . do not by themselves show
that the EAs’ conclusion – ‘no significant impact’ – is correct,
nor do they show it is incorrect.”). “What ultimately determines
whether an EIS rather than an EA is required is the scope of the
project itself, not the length of the agency’s report.” Heartwood,
Inc. v. U.S. Forest Serv., 380 F.3d 428, 434 (8th Cir. 2004). The
opposite regime would create perverse incentives for agencies,
as it would only serve to “encourage agencies to produce
bare-bones EA’s.” Id.
3. Impact on Air Quality
As for the substance of BIA’s NEPA analysis, TOMAC
focuses its complaint on BIA’s decision not to address in detail
the gaming resort’s potential impact on air quality under the
impending 8-hour ozone NAAQS. TOMAC contends, and BIA
concedes, that the agency was aware at the time of the
preparation of its EA and EA Supplement that Berrien County
was likely to move from attainment to nonattainment under the
17
CAA. See EA, supra, at 25, J.A. 337. TOMAC argues that the
agency’s failure to act on this knowledge contradicts the District
Court’s finding that BIA took the requisite “hard look” at the
environmental impact, undermines BIA’s FONSI, and should
result in a court-ordered EIS.
This claim fails, however, because Berrien County’s
nonattainment designation was made long after the EA and EA
Supplement were completed. The EA was released in January
2001 and the EA Supplement was completed in August 2003.
Berrien County was not designated nonattainment, however,
until June 15, 2004. See 8-Hour Standards, 69 Fed. Reg. at
23,910. TOMAC points to nothing in NEPA itself or its
implementing regulations that suggests that a supplement to an
EA or FONSI is required when new information potentially
affecting the federal action in question is released.
Supplementation is only required under NEPA implementing
regulations in the context of an EIS. See 40 C.F.R. §
1502.9(c)(1)(ii) (2005) (stating that agencies “[s]hall prepare
supplements to either draft or final environmental impact
statements if . . . . [t]here are significant new circumstances or
information relevant to environmental concerns and bearing on
the proposed action or its impacts”). Furthermore, TOMAC
does not assert that the construction of the facility itself would
push the area into nonattainment. See 40 C.F.R. §
1508.27(b)(10). Therefore, even if we were to import §
1502.9(c)(1)(ii)’s requirement into the EA context, it is not clear
that a pre-project nonattainment designation qualifies as a
“significant new circumstance” for the purposes of determining
the project’s effect on the area’s air quality.
As the District Court noted, “reassessments must end at
some point, or NEPA simply becomes a tool to stall new
projects indefinitely, ‘render[ing] agency decisionmaking
intractable, always awaiting updated information only to find the
new information outdated by the time a decision is made.’”
18
TOMAC III, 2005 WL 2375171, at *4 (quoting Marsh v. Or.
Natural Res. Council, 490 U.S. 360, 373 (1989)) (alteration in
TOMAC III). BIA undertook an extensive analysis of the air
quality impacts likely to occur based on the regime with which
it was faced, which is all that can reasonably be expected.
It is also noteworthy that BIA’s failure to address potential
nonattainment in the EA and EA Supplement does not mean that
the post-analysis nonattainment designation will go unexamined.
The CAA, and not NEPA, is the primary force guiding states
and localities into NAAQS compliance. As intervenors note,
under the CAA, the State of Michigan is required to comply
with EPA regulations governing attainment status. A
nonattainment designation will likely require the State’s own
assessment – a “conformity analysis” – of how Berrien County
will gain compliance. See 42 U.S.C. § 7506(c).
The other pieces of BIA’s air quality analysis are thorough
and reasonably conducted. The Bureau’s choice to model
primarily for carbon monoxide was reasonable, given that
carbon monoxide is the most likely priority pollutant to have a
significant impact on air quality. EPA also concurred with
BIA’s use of carbon monoxide as a screening tool. See Public
Comment Period & Responses to Comments at 15, EA, supra,
at app. U, J.A. 627.
Finally, there is nothing to indicate that BIA’s approach to
non-carbon monoxide impacts was other than sensible. The
Bureau concluded that “[d]ue to the regional nature of ozone,
hydrocarbon, and nitrogen oxide air quality concerns,
meaningful evaluation of these pollutants on a project-by-project
basis is not practical.” EA Supplement, supra, at 48, J.A. 825.
Ozone close to ground level, for example, “can be transported
long distances . . . impacting air quality downwind of the area of
formation.” SME Supplementary Report, supra, at 8, J.A. 1113.
In this case, given that most of the ozone in western Michigan
is attributable to transportation impacts from upwind cities such
19
as Gary, Chicago, and Milwaukee, BIA reasonably determined
that the traffic augmentation in Berrien County would not
significantly contribute to ozone levels in the area.
The Bureau’s 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. The agency’s handling of
the gaming resort’s potential impact on air quality was neither
arbitrary and capricious, nor an abuse of its discretion.
4. Cumulative Impacts
TOMAC next asserts that BIA’s EA Supplement ignores the
“cumulative impacts” of the gaming resort. NEPA’s
implementing regulations require an agency to evaluate
“cumulative impacts” along with the direct and indirect impacts
of a proposed action. See Grand Canyon Trust v. FAA, 290 F.3d
339, 341, 345 (D.C. Cir. 2002). A “cumulative impact” is “the
impact on the environment which results from the incremental
impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency
. . . undertakes such other actions.” 40 C.F.R. § 1508.7. We
have held that a “meaningful cumulative impact analysis must
identify” five things: “(1) the area in which the effects of the
proposed project will be felt; (2) the impacts that are expected
in that area from the proposed project; (3) other actions – past,
present, and proposed, and reasonably foreseeable – that have
had or are expected to have impacts in the same area; (4) the
impacts or expected impacts from these other actions; and (5)
the overall impact that can be expected if the individual impacts
are allowed to accumulate.” Grand Canyon Trust, 290 F.3d at
345 (quotation and citation omitted). In other words, the agency
“cannot treat the identified environmental concern in a vacuum.”
Id. at 346.
20
Appellant appears to misunderstand the function of a
cumulative impacts analysis. TOMAC construes the
requirement to mean that BIA was required to consider the
“cumulative impact of all the casino’s expected impacts when
added together.” Br. of Plaintiff-Appellant at 43. This is not
correct. The “cumulative” impacts to which the regulation
refers are those outside of the project in question; it is a
measurement of the effect of the current project along with any
other past, present, or likely future actions in the same
geographic area. See 40 C.F.R. § 1508.7.
The Bureau discusses one identifiable “future action” in its
EA Supplement – the potential for new business development on
a particular parcel of land as a result of the casino. See EA
Supplement, supra, at 51, J.A. 828. It found that the zoning
ordinances of the local governments, as well as taps to the sewer
and water system, were sufficient to account for the “cumulative
impact.” Id. BIA concluded its cumulative impacts statement
by declaring that “no past, present, or reasonably foreseeable
future actions are known or anticipated which might produce a
significant cumulative impact when considered with the added
incremental impact of the Project.” Id. at 53, J.A. 830.
Other than the potential for development on the one parcel
of land, the Bureau notes that no projects are “known or
anticipated” to combine to produce a significant negative impact
on the environment. And TOMAC points to nothing to suggest
that BIA overlooked anything. Therefore, we find that BIA’s
cumulative impacts analysis is sufficient for purposes of NEPA.
B. “Restored” to Federal Recognition
TOMAC’s principal claim is that BIA and the District Court
improperly concluded that the Pokagon Band was a “restored”
tribe under § 20 of IGRA. The Tribe’s designation as “restored”
facilitated BIA’s ability to more easily take the Pokagon Band’s
land into trust. We agree with BIA and the District Court that
21
the language of the statute and the legislative history of the
Restoration Act clearly demonstrate that the Pokagon Band is a
“restored” tribe within the meaning of IGRA.
In 1988, Congress enacted IGRA, in large part to “provide
a statutory basis for the operation of gaming by Indian tribes as
a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments.” 25 U.S.C. §
2702(1); see Diamond Game Enters., Inc. v. Reno, 230 F.3d 365,
366-67 (D.C. Cir. 2000). Section 20 of IGRA generally
provides that regulated Indian gaming is prohibited on off-
reservation lands acquired in trust by the United States after
October 17, 1988. See 25 U.S.C. § 2719(a). A tribe may be
exempted from this prohibition if the Secretary, after local
consultation, determines that a gaming establishment “would be
in the best interest of the Indian tribe . . . and would not be
detrimental to the surrounding community,” and the state
Governor approves the plan. 25 U.S.C. § 2719(b)(1)(A).
Alternatively, the “restored lands exception” eliminates the
aforementioned procedural hurdles where the land in question
is taken into trust as part of “the restoration of lands for an
Indian tribe that is restored to Federal recognition.” 25 U.S.C.
§ 2719(b)(1)(B)(iii). In the case of the Pokagon Band, the
Bureau determined, and the District Court agreed, that the Band
was “restored to Federal recognition” within the meaning of 25
U.S.C. § 2719(b)(1)(B)(iii).
Section 2 of the Restoration Act states: “Federal
recognition of the Pokagon Band of Potawatomi Indians is
hereby affirmed.” 25 U.S.C. § 1300j-1. TOMAC contends that
Congress purposefully used “affirmed” instead of “restored” to
ensure that IGRA’s restored lands exception did not apply to the
Pokagon Band. In addition to offering no support in the record
for this claim, TOMAC’s contention overlooks the language of
the statute as a whole, disregards similar language in related
22
statutes, and fails to account for the recognized history of the
Pokagon Band.
As noted above, the Pokagon Band “was unfairly
terminated as a result of both faulty and inconsistent
administrative decisions contrary to the intent of the Congress,
federal Indian law and the trust responsibility of the United
States.” S. REP. NO. 103-266, at 6. To remedy this injustice,
Congress enacted the Restoration Act in 1994. The Act’s
specific purpose was to reestablish the Tribe’s status as a
federally recognized tribe, 25 U.S.C. § 1300j-1, thus bringing
the Tribe within the umbrella of federal services and benefits
extended to other federally recognized tribes, 25 U.S.C. §
1300j-2.
While IGRA offers no definition of “restore,” the common
use of the term is “to put back into a former or proper position.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1936 (3d
ed. 1993). Congress’s enactment of the Restoration Act did both
with respect to the Pokagon Band. The House and Senate
committee reports, as well as the statute itself, make clear that
the Band’s “proper” place is one of federal recognition. The
Restoration Act also put the Band back into its “former” place
as a recognized tribe. The Senate committee report explicitly
states that while Congress was not responsible for the Tribe’s
termination, it was nevertheless “terminated” for all intents and
purposes due to “faulty and inconsistent administrative
decisions.” S. REP. NO. 103-266, at 6; see also Grand Traverse
Band of Ottawa & Chippewa Indians v. Office of U.S. Atty. for
W. Dist. of Mich., 369 F.3d 960, 970 (6th Cir. 2004). The
Restoration Act clearly remedied that improper termination and
“restored” the Band to its rightful place.
Even more plainly, the Restoration Act explicitly states that
it is “An Act to restore Federal services to the Pokagon Band of
Potawatomi Indians,” Pub. L. No. 103-323, 108 Stat. 2152
(codified at 25 U.S.C. § 1300j) (emphasis added). And the
23
Senate committee report describing the purposes of the act
states: “The [Pokagon] Band’s claim of rights and status as a
treaty-based tribe, and the need to restore and clarify that status,
has been clearly demonstrated.” S. REP. NO. 103-266 at 6
(emphasis added).
Finally, other decisions in related cases clearly support the
District Court’s judgment in this case. For example, 25 U.S.C.
§ 1300k-2 (2000) states: “Federal recognition of the Little
Traverse Bay Bands of Odawa Indians and the Little River Band
of Ottawa Indians is hereby reaffirmed” (emphasis added). The
Sixth Circuit noted that the statute apparently restored federal
recognition to these Bands. See Sault Ste. Marie Tribe of
Chippewa Indians v. United States, 288 F.3d 910, 912 & n.2
(6th Cir. 2002). Likewise, 25 U.S.C. § 1300l(a) (2000), a statute
restoring the Auburn Indians to federal recognition, states:
“Federal recognition is hereby extended to the Tribe” (emphasis
added). We read this statutory language to signify that
“Congress restored the Auburn Band’s rights as a federally
recognized tribe in 1994.” City of Roseville v. Norton, 348 F.3d
1020, 1022 (D.C. Cir. 2003) (emphasis added).
There can be no real doubt here that the Restoration Act
restored the Tribe to federal recognition for the purposes of § 20
of IGRA. We therefore affirm the District Court’s grant of
summary judgment to BIA on this issue.
C. The Lawfulness of Congress’s Delegation Under the
Restoration Act
In a final attempt to derail the Pokagon Band’s pursuit of its
gaming resort, TOMAC argues that § 6 of the Restoration Act,
25 U.S.C. § 1300j-5, constitutes an unlawful delegation of
power from Congress to the Secretary. That section provides:
The Band’s tribal land shall consist of all real property,
including the land upon which the Tribal Hall is situated,
now or on and after September 21, 1994, held by, or in trust
24
for, the Band. The Secretary shall acquire real property for
the Band. Any such real property shall be taken by the
Secretary in the name of the United States in trust for the
benefit of the Band and shall become part of the Band’s
reservation.
25 U.S.C. § 1300j-5. TOMAC contends that the Secretary’s
authority is boundless, because the statute allows her to acquire
land for the tribe without constraint. This is a specious
argument. When § 1300j-5 is read in light of its clear purpose,
the history of the Tribe, and the Restoration Act as a whole, it is
clear that Congress set forth appropriate boundaries to guide the
Secretary in her acquisition of land in trust for the Tribe.
In a nondelegation challenge, the test is whether Congress
has set forth “‘an intelligible principle to which the person or
body authorized to [act] is directed to conform.’” Am. Trucking
II, 531 U.S. at 472 (quoting J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928)) (alteration in Am. Trucking II).
The Supreme Court has explained that the general policy and
boundaries of a delegation “need not be tested in isolation.” Am.
Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946). Instead,
the statutory language may derive content from the “purpose of
the Act, its factual background and the statutory context in
which they appear.” Id.
The trust acquisition direction in § 1300j-5 must be read as
an integral part of the Restoration Act, in light of the history of
the relationship between the United States and the Tribe, and the
Restoration Act’s express purposes as a whole. The Restoration
Act reestablishes the Pokagon Band as a federally recognized
Indian tribe and its primary purpose is to allow the Tribe to
restore its land base – a reservation – and to exercise jurisdiction
on that reservation. See 25 U.S.C. §§ 1300j-5, j-7. The Tribe
has existed in the St. Joseph River Valley in southwestern
Michigan and northern Indiana since at least the early 1600s.
The statute restores federal services to the Tribe within a
25
10-county service area that corresponds to the Tribe’s ancestral
home. 25 U.S.C. § 1300j-6. We categorically reject the
suggestion that the Secretary has been given no direction as to
where she is to take land into trust for the Tribe. It is obvious
here that the Secretary’s delegated authority under § 1300j-5 is
cabined by “intelligible principles” delineating both the area in
and the purpose for which the land should be purchased. We
therefore find that Congress’s delegation to the agency was
lawful.
III. CONCLUSION
For the reasons discussed above, the judgments of the
District Court are hereby affirmed.
So ordered.