Redding Rancheria v. Kenneth Salazar

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REDDING RANCHERIA, No. 12-15817
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-01493-
SC
SALLY JEWELL, in her official
capacity as Secretary of the United
States Department of the interior; OPINION
KEVIN K. WASHBURN, in his official
capacity as the Assistant Secretary
for Indian Affairs for the United
States Department of the Interior,*
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Samuel Conti, Senior District Judge, Presiding

Argued and Submitted
April 8, 2014—San Francisco, California

Filed January 20, 2015

Before: Mary M. Schroeder, Kermit Victor Lipez**,
and Consuelo M. Callahan, Circuit Judges.

*
Sally Jewell and Kevin K. Washburn are substituted for their
predecessors pursuant to Fed. R. App. P. 43(c)(2).
**
The Honorable Kermit Victor Lipez, Senior United States Circuit
Judge for the First Circuit, sitting by designation.
2 REDDING RANCHERIA V. JEWELL

Opinion by Judge Schroeder;
Partial Concurrence and Partial Dissent by Judge Callahan

SUMMARY***

Tribal Matters

The panel affirmed the district court’s judgment in favor
of the federal government insofar as it upheld the Secretary
of the Interior’s denial of the application of Redding
Rancheria (the Tribe) to operate multiple casinos on restored
lands, and reversed in part and remanded to the agency for
consideration of the Tribe’s proposal to close its existing
Tribal gaming operation upon construction of a new facility.

The Secretary denied the Tribe’s request to take into trust
a substantial parcel the Tribe recently acquired for the
construction and operation of a new gambling casino. The
Indian Gaming Regulatory Act generally banned gaming on
lands that tribes acquired after its enactment in 1988, but
created an exception for tribes with restored lands. The
agency denied the Tribe’s application because, at the time it
was submitted, the Tribe was operating a modest casino on
land it acquired earlier. The district court granted summary
judgment to the government because the Tribe was seeking
to operate multiple casinos, which the applicable regulations
sought to prevent. While the application was pending, the
Tribe advised the agency that it was willing to close down its
original casino once the new one was in operation.

***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 REDDING RANCHERIA V. JEWELL 3

The panel held that the regulation at issue was reasonable,
and the Secretary reasonably implemented the restored lands
exception. The panel further held that the Indian canon
(which provides that where a statute is unclear, it must be
liberally interpreted in favor of Indians) did not apply in the
circumstances of this case. The panel also held that the
Secretary’s denial of the Tribe’s application was not
inconsistent with prior agency practice, and was not arbitrary
and capricious.

The panel held that the agency should have considered the
Tribe’s alternative offer to move all gaming to the new
casino, and vacated in part the district court’s summary
judgment with instructions to remand to the agency to address
the issue.

Judge Callahan concurred in parts I, II, and III of the
majority’s opinion; and agreed that the regulation at issue was
reasonable, the Indian canon did not apply, and there was no
unexplained change in agency policy. Judge Callahan
dissented from part IV of the opinion because the Tribe did
not fairly prompt the Secretary to consider its alleged offer to
move its casino and did not ask the district court to consider
the alleged offer to remove the casino. Judge Callahan would
not reverse in part and remand for further consideration.
4 REDDING RANCHERIA V. JEWELL

COUNSEL

Scott D. Crowell (argued) and Scott Wheat, Crowell Law
Offices, Spokane, Washington, for Plaintiff-Appellant
Redding Rancheria.

Ignacia S. Moreno, Assistant Attorney General, Matthew
Marinelli and Lane N. McFadden (argued), Attorneys, United
States Department of Justice, Environment & Natural
Resources Division, Washington, D.C., for Defendants-
Appellees Sally Jewell, Secretary of the Department of the
Interior and Kevin K. Washburn, Assistant Secretary for
Indian Affairs.

George Forman and Jay B. Shapiro, Forman & Associates,
San Rafael, California, for Amicus Curiae Robinson
Rancheria of Pomo Indians.

OPINION

SCHROEDER, Senior Circuit Judge:

The Redding Rancheria (“the Tribe”) is a very small
Indian tribe trying to restore the Reservation that was taken
away by the United States during the mid-Twentieth century
era of assimilation. See City of Roseville v. Norton, 348 F.3d
1020, 1022 (D.C. Cir. 2003); see also William C. Canby,
American Indian Law in a Nutshell 27–30 (5th ed. 2009)
(describing the federal government’s general policy of
terminating tribal recognition in order to assimilate Indian
populations); Felix S. Cohen, Federal Indian Law §1.06
(2005) (noting that, starting in the 1950s, the federal
government began an official “policy of rapid assimilation
 REDDING RANCHERIA V. JEWELL 5

through termination”). The Tribe also wishes to establish a
successful gaming operation on its land. For that purpose, it
has asked the Department of the Interior to take into trust a
substantial parcel the Tribe recently acquired for the
construction and operation of a new gambling casino. The
Secretary of the Interior (“Secretary”) denied the request.

The Indian Gaming Regulatory Act (“IGRA”) generally
bans gaming on lands that tribes acquire after its enactment
in 1988, but creates an exception for tribes with restored
lands. 25 U.S.C. § 2719. This case concerns the regulations
the Secretary of the Interior has promulgated to define and
place reasonable limits on the restored lands exception. The
agency found the Tribe’s application did not qualify because,
at the time it was submitted, the Tribe was operating a modest
casino on land that it acquired earlier. The district court
granted summary judgment for the government because the
Tribe was seeking to operate multiple casinos, something the
applicable regulations unquestionably and reasonably are
intended to prevent. While the application was pending
before the agency, however, the Tribe advised the agency that
it was willing to close down its original casino once the new
one was in operation. The agency did not meaningfully
address the Tribe’s alternative position. We remand to the
agency so that it can do so.

FACTS

The Redding Rancheria was first recognized by the
United States in 1922, with a reservation of about 30 acres
located in rural Northern California. In 1965, however, it was
stripped of its federal recognition pursuant to the California
Rancheria Act, Pub. L. No. 85-671, 72 Stat. 619 (1958). The
act was part of a general effort to assimilate Indians into
6 REDDING RANCHERIA V. JEWELL

American society. See City of Roseville, 348 F.3d at 1022.
The Tribe eventually joined other California tribes in bringing
suit against the United States, see Hardwick v. United States,
No. C-79-1710 (N.D. Cal. Dec. 22, 1983), and as part of a
resulting settlement, tribal federal recognition was restored in
1984.

The Tribe then embarked on a series of acquisitions to
restore lands to its reservation, and, per its request, each has
been taken into trust by the United States, for a total of about
8.5 acres. Roughly 2.3 acres were taken into trust for
individual tribe members as part of the settlement agreement
in Hardwick. The United States accepted the Tribe’s trust-to-
trust transfer request for these parcels in 1992, and the Tribe
began operating a small casino, known as the Win-River
Casino, on the 2.3 acre parcel after entering into a gaming
compact with the state of California in 1999. The Tribe has
since submitted several additional land requests. The first,
begun in 1996, was for a Head Start facility, and the
application was not completed and accepted until 2009.
Another application, submitted in 2000 and also accepted in
2009, was for a burial ground of .5 acres. In 2010, an
application for administrative buildings was accepted.
According to the Tribe, its land restoration efforts have often
been hampered by lack of funds and the unavailability of
nearby land.

In 2003, the Tribe submitted a request to the Department
of the Interior to take into trust an additional 152 acres (“the
Strawberry Fields”), so the Tribe could construct another
casino. After the Tribe submitted a completed application on
December 22, 2008, it amended the application in July of
2010 to include an additional 80 acres. Shortly before the
Secretary denied the application, the Tribe wrote a letter to
 REDDING RANCHERIA V. JEWELL 7

the agency, dated December 14, 2010, stating the Tribe was
willing to close its current gaming facilities once its new
facility was built. The Secretary denied the Tribe’s
application on December 22, 2010, finding that, under the
applicable regulations, the Tribe could not conduct gaming on
newly acquired lands because it was already gaming on other
lands.

The key statute governing the Tribe’s gaming activities is
the portion of IGRA that covers “restored” tribes. Congress
passed IGRA in 1988 “as a means of promoting tribal
economic development, self-sufficiency, and strong tribal
governments.” 25 U.S.C. § 2702. IGRA permits Indian
tribes to conduct gaming on tribal lands subject to certain
limitations. Section 2719(a) prohibits tribes from gaming on
lands taken into trust after IGRA’s 1988 passage date, but
that section includes Exemptions and Exceptions. Of
relevance is section 2719(b)(1)(B), which allows restored
tribes to game on any land taken into trust as part of a
“restoration of lands” (the “restored lands exception”). There
is no dispute that the Tribe is a “restored tribe” within the
meaning of the statute. The issue is whether the land in
question is “restored land.”

To define and place reasonable limits on the exceptions,
the Secretary of the Interior, in 2008, promulgated a series of
rules implementing section 2719 of IGRA. 25 C.F.R.
§ 292.1. The purpose of these rules was to “explain to the
public how the Department interprets” IGRA’s various
exceptions and exemptions, including the restored lands
exception. 73 Fed. Reg. 29,354. Under the Secretary’s
interpretation, lands qualify as “restored” and can thus be
used for gaming purposes only if the tribe establishes a
sufficient relationship to the land in what the regulations term
8 REDDING RANCHERIA V. JEWELL

“modern,” “historical,” and “temporal” connections to the
Tribe’s original land. 25 C.F.R. § 292.12. At issue here is
only the temporal connection. A tribe can demonstrate a
“temporal” connection in one of two ways:

(1) The land is included in the tribe’s first
request for newly acquired lands since the
tribe was restored to Federal recognition; or

(2) The tribe submitted an application to take
the land into trust within 25 years after the
tribe was restored to Federal recognition and
the tribe is not gaming on other lands.

25 C.F.R. § 292.12(c) (emphasis added). The Strawberry
Fields were not included in the Tribe’s first request for newly
acquired lands, so subsection (1) does not apply. The
application was filed within 25 years of recognition, but
because of the last proviso of subsection (2), the Win-River
Casino became the stumbling block. The Tribe was operating
a casino on other lands.

The application remained pending for more than seven
years. Then the Tribe, on December 14, 2010, wrote to the
Secretary to advise that it would close the Win-River Casino
when the new casino was completed. Eight days later, the
Secretary denied the application, stating that “[b]ecause the
Tribe cannot meet the standards articulated in Section 292,
the Parcels are not eligible for the restored lands exception.”
The denial did not address the Tribe’s December 14 letter
proposing to close the Win-River Casino.
 REDDING RANCHERIA V. JEWELL 9

The Tribe then brought suit in the Northern District of
California, challenging the Secretary’s determination that the
Strawberry Fields are not covered by the restored lands
exception. The Tribe argued that the regulation’s limitation
on operating a second casino was unreasonable. The court
granted summary judgment in favor of the Secretary,
concluding that the Secretary had the power to promulgate
regulations under IGRA, that the Secretary’s interpretation of
the restored lands exception was reasonable, and that the
Secretary did not act arbitrarily and capriciously in denying
the Tribe’s request to operate two casinos, but did not address
the Tribe’s alternative proposal to close the first casino once
the new one was operational.

The Tribe now appeals. It contends that the regulations
are arbitrary and capricious in limiting tribes to one casino on
restored lands. It further contends that, even if the limitation
is reasonable, the Secretary was arbitrary and capricious in
denying its application even though it had offered to close the
first casino so that the application would not result in more
than one casino. We uphold the reasonableness of the
regulation itself, but direct the agency to consider whether the
regulation bars the Tribe’s moving its casino operation from
the old casino to a new one.

DISCUSSION

I. The Regulation is Reasonable

In promulgating the regulation at issue here, the Secretary
was implementing the restored lands exception to the general
statutory ban on tribes using land acquired after IGRA for
gaming. The restored lands exception therefore must be read
in the context of IGRA’s general prohibition against gaming
10 REDDING RANCHERIA V. JEWELL

on lands acquired after 1988. The exception was not intended
to give restored tribes an open-ended license to game on
newly acquired lands. Rather, its purpose was to promote
parity between established tribes, which had substantial land
holdings at the time of IGRA’s passage, and restored tribes,
which did not. See City of Roseville, 348 F.3d at 1030. In
administering the restored lands exception, the Secretary
needs to ensure that tribes do not take advantage of the
exception to expand gaming operations unduly and to the
detriment of other tribes’ gaming operations.

To that end, the Secretary promulgated a series of
requirements a tribe must satisfy in order to demonstrate that
newly acquired lands are part of the effort to restore a
reservation and are therefore eligible for gaming. To benefit
from the restored lands exception, a tribe must establish a
“modern,” “historical,” and “temporal” connection to tribal
land. 25 C.F.R. § 292.12. Because these factors are general,
the regulation further defines each.

The “modern” connection means that the land is within
the state or states in which the tribe is currently located and
is, by at least one of several measures prescribed by the
regulation, in close proximity to the tribe’s other lands.
25 C.F.R. § 292.12(a). The Secretary concluded that the
Tribe satisfied this requirement. The Secretary also
concluded that the Tribe satisfied the “historical” connection
under 25 C.F.R. § 292.12(b) because the land in question is
next to historic lands.

In order to establish a “temporal connection,” the tribe
must demonstrate either (1) that the land was part of the
tribe’s first request for newly acquired lands after being
restored to federal recognition, or (2) that it submitted an
 REDDING RANCHERIA V. JEWELL 11

application to take the land into trust within 25 years after
being restored, and that it is not currently gaming on other
lands. Id. § 292.12(c). As the Secretary stated in the
preamble to 25 C.F.R. § 212(c), “the temporal limitation
effectuates IGRA’s balancing of the gaming interests of
newly acknowledged and/or restored tribes with the interests
of nearby tribes and the surrounding community.” 73 Fed.
Reg. 29,367.

In this way, the regulation strikes a balance between
allowing restored tribes to game on newly acquired lands,
while at the same time protecting the interests of established
tribes. Section 292.12(c) allows a tribe to game on any lands
that were acquired as part of its first request for lands after
regaining federal recognition, but it limits gaming on lands
acquired as part of subsequent requests. After a tribe’s first
request for land is granted, it can only game on newly
acquired lands if it requests that these lands be taken into trust
within 25 years of restoration, and it is not already gaming
elsewhere. 25 C.F.R. § 292.12(c)(2). As a result, once a
restored tribe builds a casino, it cannot build additional
casinos on newly acquired lands. Without this limitation,
restored tribes would be able to expand their gaming
operations indefinitely. This would give them an unfair
advantage over established tribes who generally cannot game
on any lands acquired after IGRA was passed. 25 U.S.C.
§ 2719(a).

The Tribe contends that the limitation is nonetheless
unreasonable because it is not contained in the statute. The
statute, of course, merely creates an exception for restored
lands, without attempting to define the term or dictate how it
should be administered. Congress authorized the Secretary
to promulgate regulations to achieve those purposes, as is
12 REDDING RANCHERIA V. JEWELL

standard practice in today’s understanding of administrative
law. Thus an agency charged with administering a statute has
the power to make rules “to fill any gap left, implicitly or
explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231
(1974).

The Administrative Procedure Act accordingly sets forth
procedures by which agencies promulgate rules “to
implement, interpret, or prescribe law or policy.” 5 U.S.C.
§ 551(4). When an agency uses this rule making authority to
define a general or ambiguous provision of a statute, its
interpretation is owed deference so long as it is reasonable.
United States v. Mead Corp., 533 U.S. 218, 229 (2001)
(citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 845 (1984)).

We conclude that the Secretary reasonably implemented
the restored lands exception, to limit the extent to which a
restored tribe may operate gaming facilities on restored land,
in order to ensure parity between restored and established
tribes. There is nothing unreasonable about the regulation’s
intent to prevent restored tribes from acquiring additional
land to operate multiple gaming operations.

II. The Indian Canon Does Not Apply

In Indian law there is a canon that, where a statute is not
clear, it must be interpreted liberally in favor of Indians. This
canon was most recently articulated by the Supreme Court in
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766
(1985). The Tribe therefore asserts that even if the regulation
could be viewed as reasonable, the Blackfeet presumption
precludes the Secretary from prohibiting additional gaming
on restored lands.
 REDDING RANCHERIA V. JEWELL 13

The Tribe points out that no such “numerical limitation”
is clearly expressed within the language of the statute. See
25 U.S.C. § 2719(b)(1)(B)(iii). The Tribe’s position is that,
because the limitation is contrary to the interests of the Tribe,
we must apply the canon to hold that the numerical limitation
violates Congressional purpose. The government, on the
other hand, points to a competing presumption of deference
to agency interpretation of a statute. See Chevron, 467 U.S.
at 845.

The Tribe’s argument seems foreclosed by precedent in
this Circuit. This court has repeatedly “declined to apply [the
Indian law canon of construction] in light of competing
deference given to an agency charged with the statute’s
administration.” Haynes v. United States, 891 F.2d 235, 239
(9th Cir. 1989); see also Seldovia Native Ass’n, Inc. v. Lujan,
904 F.2d 1335, 1342 (9th Cir. 1990). We have said this is
because the Blackfeet presumption is merely a “guideline,”
whereas “Chevron is a substantive rule of law.” Williams v.
Babbitt, 115 F.3d 657, 663 n.5 (9th Cir. 1997). In this circuit,
an agency’s legal authority to interpret a statute appears to
trump any practice of construing ambiguous statutory
provisions in favor of Indians.

Even if the Blackfeet presumption might be applied in
some circumstances in our circuit, however, it would not
apply in this case. This is because all tribal interests are not
aligned. An interpretation of the restored lands exception that
would benefit this particular tribe, by allowing unlimited use
of restored land for gaming purposes, would not necessarily
benefit other tribes also engaged in gaming. It might well
work to their disadvantage.
14 REDDING RANCHERIA V. JEWELL

The canon should not apply in such circumstances. The
canon has been applied only when there is a choice between
interpretations that would favor Indians on the one hand and
state or private actors on the other. For example, in Blackfeet
itself, the Supreme Court applied the canon in a dispute
between state and tribal interests, interpreting the 1938
Mineral Leasing Act. The Court concluded that the statute
should not be read to permit the state of Montana to tax
Indian royalty income from mineral leases, because the Act
did not expressly authorize state taxation of Indian royalty
interests. 471 U.S. at 767. In the absence of such an express
authorization, the statute had to be interpreted in favor of the
Indians. This court has explained that the Blackfeet
presumption does not apply when tribal interests are adverse
because “[t]he government owes the same trust duty to all
tribes.” Confederated Tribes of Chehalis Indian Reservation
v. Washington., 96 F.3d 334, 340 (9th Cir. 1996). It cannot
favor one tribe over another. The district court therefore
correctly refused to apply the Indian canon in the
circumstances of this case.

III. There Has Been No Unexplained Change in
Agency Policy

The Tribe argues that the Secretary’s denial of its
application was inconsistent with prior agency practice and
therefore arbitrary and capricious. The Tribe points to a
single past agency decision that permitted the Elk Valley
Rancheria to game on restored lands even though it was
already gaming on other lands. The Elk Valley decision was
before the promulgation of 25 C.F.R. § 292.12 in 2008 and
before the Tribe’s application was completed in 2010.
 REDDING RANCHERIA V. JEWELL 15

It is not entirely clear that the Elk Valley decision would
have been any different under the current regulation. Under
the current regulation, a tribe may game on lands provided
that they are “included in the tribe’s first request for newly
acquired lands since the tribe was restored to federal
recognition” regardless of whether the tribe is already gaming
elsewhere. 25 C.F.R. § 292.12. The administrative decision
is a part of our record and states that the lands on which the
Elk Valley Rancheria sought to conduct gaming were part of
“the first parcels requested by the Tribe to be acquired into
trust.”

What is more, an agency is permitted to change its policy
so long as it provides some minimal explanation for the
change. See Morales-Izquierdo v. Gonzales, 486 F.3d 484,
493 (9th Cir. 2007). Even assuming the Elk Valley decision
was inconsistent with the current regulation and the agency’s
treatment of the Tribe’s application in this case, the agency
provided a sufficient explanation for its change of policy. In
promulgating 25 C.F.R. §292.12, the agency stated that it
wanted to “explain to the public how the Department
interprets th[is] exception[ ].” 73 Fed. Reg. 29,354. It further
explained, that the temporal requirement was designed to
“effectuate[ ] the IGRA’s balancing of the gaming interests
of . . . restored tribes with the interests of surrounding tribes
and the nearby community.” Id. at 29,367. More extensive
explanation was not required. See Robles-Urrea v. Holder,
678 F.3d 702, 710 n.6 (9th Cir. 2012) (noting that even a
“sparse” explanation suffices).
16 REDDING RANCHERIA V. JEWELL

IV. The Agency Should Have Considered the Tribe’s
Alternative Offer to Move All Gaming to the New
Casino

Once a restored tribe has acquired restored lands, and
built a casino, the regulation bars use of subsequent
acquisitions to operate additional casinos. It is undisputed
that the Tribe was operating the Win-River Casino when it
submitted its application for the new Strawberry Fields
casino. The Tribe’s 2008 application thus contemplated the
construction of a second casino. There were apparently
discussions between the parties, because in December 2010
the Tribe wrote to the Secretary offering to “memorialize” its
intent to move its gaming operations from its current location
to the Strawberry Fields. The Tribe argues that the Secretary,
in denying the Tribe’s application, arbitrarily failed to
consider the Tribe’s 2010 representation that it would not
operate multiple gaming facilities. The Secretary denied the
Tribe’s application without any mention of the Tribe’s offer,
although the denial emphasized the specific wording of the
regulation that conditions the requisite temporal connection
on a finding that the tribe “is not gaming on other land.”
25 C.F.R. § 292.12(c)(2). The district court did not consider
the Tribe’s alternative offer and construed its application as
if it necessarily contemplated the operation of multiple
casinos.

An agency’s decision is arbitrary and capricious if it
ignores important considerations or relevant evidence on the
record. See Port of Seattle, Wash. v. F.E.R.C., 499 F.3d
1016, 1035 (9th Cir. 2007) (citing Motor Vehicle Mfrs. Ass’n
of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). The Secretary did not address the Tribe’s
willingness to close its current casino in order to move its
 REDDING RANCHERIA V. JEWELL 17

gaming operations to one on newly restored lands. The
agency now argues, however, that the Secretary’s
determination was required by the plain meaning of the
regulation.

Under 25 C.F.R. § 292.12(c)(2), land is eligible for
gaming if the application is submitted within 25 years after
the tribe was restored to federal recognition and “the tribe is
not gaming on other lands.” The regulation thus has both a
25 year deadline and a prohibition against gaming on other
lands. The agency must look to the date on which a tribe
submits its application to determine whether it has satisfied
the 25 year deadline. The regulation is not clear, however,
that the agency must also look to the date of the application
to determine whether the tribe has satisfied the prohibition
against gaming on other lands. While the regulation could be
so interpreted, the agency has so far provided no reason why
it should. Allowing a restored tribe to move a casino does not
appear to conflict with the statutory purpose of ensuring
parity among restored and established tribes. Restored tribes,
if allowed to operate an indefinite number of casinos on
newly restored lands, would of course have an advantage over
established tribes, but it is not clear that allowing restored
tribes to move a casino to a different location would
necessarily have the same effect.

The agency can point out that we generally defer to an
agency’s interpretation of its own regulation. See Auer v.
Robbins, 519 U.S. 452, 461 (1997). The administrative
proceedings in this case, however, did not address this issue
of interpretation, much less provide any reasons for the
agency’s current position. The agency presented its position
for the first time in its brief, and it offered sparse explanation
for it. We need not defer to an agency position when taken
18 REDDING RANCHERIA V. JEWELL

for purposes of litigation. See Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2166–67 (2012) (noting that
“an interpretation is not owed deference when it is nothing
more than a convenient litigating position or a post hoc
rationalizatio[n] advanced by an agency seeking to defend
past agency action against attack.”) (internal citations and
quotation marks omitted) (alterations in original). The
agency’s interpretation on the administrative record before us
lacks explanation or justification.

In remanding to the agency we expedite the agency’s
consideration of the Tribe’s alternative proposal. We do not
tell the agency what to say. While the dissent may speculate
on how and why the agency interprets the regulation, the
agency has never addressed these issues. We cannot defer to
what the agency has not done.

We accordingly vacate in part the district court’s grant of
summary judgment with instructions to remand to the agency
to address whether the Tribe should be permitted to construct
a new casino to replace the existing one.

CONCLUSION

The judgment of the district court in favor of the
government is affirmed insofar as it upholds the Secretary’s
denial of the Tribe’s application to operate multiple casinos
on restored lands. The judgment is reversed in part, and the
case remanded to the district court with instructions to
remand to the agency for consideration of the Tribe’s
 REDDING RANCHERIA V. JEWELL 19

proposal to close its existing gaming operation upon
construction of a new facility.

AFFIRMED in part, REVERSED and REMANDED in
part. Each side to bear its own costs.

CALLAHAN, Circuit Judge, concurring and dissenting:

I concur in parts I, II and III of the majority’s opinion. I
agree that the regulation here at issue is reasonable, the Indian
canon does not apply, and there has been no unexplained
change in agency policy. In other words, I agree that the
Secretary reasonably rejected the Tribe’s challenges to the
underlying regulation. However, I dissent from part IV of the
opinion because the Tribe did not fairly prompt the Secretary
of the United States Department of Interior (“the Secretary”
or “the Department”) to consider its alleged offer to move its
casino and did not ask the district court to consider the
alleged offer to move the casino. Moreover, on this record,
there is no basis for suggesting that the such an offer would
merit relief under the regulation. Our sympathy for a small,
struggling tribe does not justify formalizing a claim that was
never clearly presented to the Secretary, was not fairly
presented to the district court, and is of questionable merit.
Our opinion should conclude this litigation.

I

As the opinion notes, the Tribe made its application in
2003. The application was supplemented on several
occasions, including on December 22, 2008, and on October
29, 2010. There is nothing in either of these detailed
20 REDDING RANCHERIA V. JEWELL

supplements that suggests that the Tribe contemplated closing
its Win-River Casino if its application for Strawberry Fields
was approved.

Negotiations continued through a meeting in November
15, 2010. It appears that the possibility that the Tribe might
close its Win-River Casino if it were allowed to build a
casino on Strawberry Fields was first raised in a letter dated
December 14, 2010, from Barbara Murphy, Vice
Chairperson, Redding Rancheria, to Del Laverdue, Deputy
Assistant Secretary - Indian Affairs, Department of Interior.
The letter stated:

Since our meeting in Albuquerque, the Tribal
Council has met and discussed our options
with regard to this application, and we are
determined to do whatever is necessary to
alleviate any concerns you may have about
our current landholdings and gaming
operation.

Accordingly, while we contend that our
existing gaming facility does not preclude us
from obtaining a restored lands opinion for
Strawberry Fields, I want to personally assure
you of our intent to close our existing facility
and relocate our gaming operation to the
Strawberry Fields property. Additionally, we
are willing to memorialize this intent in an
agreement with the Department and look
forward to talking to you about [t]his further.

Several features of this letter are relevant. First, the Tribe
continues to press its contention that its “existing gaming
 REDDING RANCHERIA V. JEWELL 21

facility does not preclude [it] from obtaining a restored lands
opinion for Strawberry Field.” Second, the letter offers only
the Vice Chairperson’s personal assurance of the Tribe’s
intent to relocate its casino to Strawberry Fields. Third, the
letter asserts that the Tribe is “willing to memorialize this
intent.” Fourth, the Vice Chairperson indicates that she looks
forward to talking to the Deputy Assistant Secretary about
this matter.

Thus, it is doubtful that the December 14 letter can, or
should, be read as conveying a formal offer by the Tribe to
close the Win-River Casino once the Strawberry Fields
Casino opened. Rather, the Vice-Chairperson offered her
personal assurance as to the Tribe’s intent and that the Tribe
was “willing to memorialize this intent in an agreement.”
Moreover, the letter does not contain any argument or
explanation as to why the Tribe’s offer to move its casino
might be relevant to the Secretary’s consideration of the
Tribe’s application. Particularly in light of the questionable
relevance of this offer to the Secretary’s analysis (see part III,
infra), the letter is best understood as an attempt to continue
negotiations: an effort to negotiate a last minute deal.

Eight days later, on December 22, 2010, the Secretary of
the Interior issued an eight-page, single-spaced decision
denying the Tribe’s application. A review of the December
22 decision shows that it was carefully crafted and that the
preliminary determinations must have been made well before
December 14, 2010. In its penultimate section the letter
states:

Whether we consider the Tribe’s first request
for newly acquired lands to be the trust-to-
trust transfers or the subsequent fee-to-trust
22 REDDING RANCHERIA V. JEWELL

requests, it is evident that the subject Parcels
were not included in either of these requests.
Therefore, the Parcels were not “included in
the [T]ribe’s first request for newly acquired
lands since the [T]ribe was restored to Federal
recognition” and they cannot meet the
standard in 25 C. F. R. § 292.12(c)(I).

To meet the alternate standard under 25 C. F.
R. § 292.12(c)(2), a tribe must demonstrate
that it submitted the land into trust application
within 25 years after the tribe was restored to
Federal recognition and the tribe is not
gaming on other lands.

In this case, the Tribe’s existing gaming
facility precludes a finding under this section.

Even if the Tribe’s letter could be viewed as a plea for the
creation of an exception to the requirement that “the tribe is
not gaming on other land,” which is contrary to its natural
meaning, see infra, the December 14 letter contained no
explanation or justification for such a request. Accordingly,
as the Tribe’s alleged offer to move its casino did not appear
to be relevant to the Secretary’s decision, the Secretary did
not, and should not be required or expected to, address the
offer in any detail. Rather, the Secretary succinctly explained
that he denied the Tribe’s application because of its “existing
gaming facility.” The offer to move the casino did not
change the fact that the Tribe had an existing casino when it
submitted its application.

The conclusion that the December 14 letter did not clearly
present to the Secretary an alternate proposal of moving the
 REDDING RANCHERIA V. JEWELL 23

existing casino is supported by the lack of anything in the
record suggesting that the Tribe thought otherwise. There is
no indication that the Tribe asked the Secretary to reconsider
his decision in light of the December 14 letter. Indeed, the
Tribe’s complaint filed in the district court does not even
mention the December 14, 2010 letter. Paragraph 23 states
that the Tribe amended its request on October 29, 2010.
Paragraph 24 then states that Department denied the Tribe’s
request in the December 22, 2010 letter. There is no mention
of the November 15, 2010 meeting or Ms. Murphy’s
December 14, 2010 letter.

The existing record does not support the majority’s
statement that the Tribe presented the Secretary with an
“alternative proposal to close the first casino once the new
one was operational.” Maj. at 9. Rather, the possibility of
moving the casino appears to have been tentatively raised in
a last minute letter with no explanation of why the proposal
would be permissible under the applicable regulation. The
“alternate proposal” was not addressed in the Secretary’s
decision, and the Tribe never asked the Secretary to
reconsider his decision in light of its alleged “alternate
proposal.” We hold that the Secretary’s denial of the
application was otherwise reasonable. This decision should
not be undermined by subsequent attempts to re-characterize
what happened. Because no “alternate proposal” was fairly
presented to the Secretary, his failure to address it cannot be
described as arbitrary or capricious. Furthermore, if the
“alternate proposal” has any merit, the Tribe presumably can
raise it anew with the Department. Such a course is surely
preferable to remanding this case to the district court, to
remand it to the Secretary, to consider a claim that was not
fairly raised before the Department.
24 REDDING RANCHERIA V. JEWELL

II.

Contrary to the majority’s opinion and the Tribe’s
representations in its appellate brief, the district court’s 32-
page opinion is not based on a misperception that the Tribe
sought to operate multiple casinos. As noted, the December
14 letter was not even mentioned in the Tribe’s complaint.

Furthermore, a review of the briefs filed in the district
court reveals that the alleged “alternate proposal” was never
argued in writing to the district court. The December 14
letter is first mentioned in the Tribe’s September 30, 2011
Motion for Summary Judgment as “summarizing many of the
Tribe’s arguments supporting its position that the Property
fell within the Restored Lands Exception.”1 However, the
thrust of the motion was that “the validity of the Decision . . .
depends on the validity of the Regulations.”2

1
Paragraph 19 in the Motion for Summary Judgement reads:

On December 14, 2010, the Tribe sent a letter to Mr.
Laverdure reiterating the discussions that occurred
during the November 15, 2010 meeting, and
summarizing many of the Tribe’s arguments support its
position that the Property fell with the Restored Lands
Exception.
2
The motion stated:

The Assistant Secretary’s Decision that the Tribe’s
request must be denied was based on the conclusion
that the Property did not meet the requirements of the
Regulations, in particular 25 C. F. R. §§ 292.2 and
292.7–292.12. The validity of the Decision, therefore
depends on the validity of the Regulations.
 REDDING RANCHERIA V. JEWELL 25

The motion does contain a section alleging that “the
Assistant Secretary’s Decision violates the APA because he
refused to consider important information and arguments
submitted by the tribe.” This section does mention the
December 14, 2010 letter, but only as supporting the Tribe’s
argument that “because the lands upon which the Tribe was
conducting gaming were within the original boundaries of the
Tribe’s Reservation, that gaming had no effect on the Tribe’s
request that the Property be taken into trust pursuant to the
Restored Lands Exception.” The December 14, 2010 letter
does not make an appearance in the Tribe’s reply brief.

The only language in the district court’s opinion that
arguably implies that the district court thought that the Tribe
sought to operate multiple casinos is the third sentence in the
opinion that reads: “The Tribe seeks to expand its gaming
operations by building a second casino on 230 acres of
undeveloped riverfront lands.” However, this is an accurate
statement, even if the Tribe intended to close the Win-River
Casino. The Tribe did seek to build a “second” casino.
Moreover, the Tribe did intend to expand its operations as the
proposed Strawberry Fields Casino would be much larger
than the Win-River Casino.

The district court did address the Tribe’s claim that the
Secretary “refused to consider important information, and
found that the Decision was not arbitrary or capricious.” The
district court concluded that the Secretary had “explained that
the Tribe could not satisfy the alternate criterion for
establishing a temporal connection to newly acquired lands,
which depends on a tribe conducting gaming on no other
lands, see § 292.12(c)(2), because the tribe already operated
the Win-River Casino,” and that there was “nothing arbitrary
or capricious about this application of the Regulations.” The
26 REDDING RANCHERIA V. JEWELL

district court further opined that “[t]he Tribe’s real objection
to the Decision appears to be not how Interior applied the
Regulations but rather that Interior applied them at all.”

Thus, the district court held that the Secretary reasonably
denied the Tribe’s request because the Tribe was already
gaming on other land. The district court did not consider (and
apparently was not asked to consider) whether the regulation
could, or should be, revised or interpreted to allow the
transfer of gaming from one location to another. Just as the
Secretary’s decision should not be set aside for not addressing
an argument that was not clearly raised in the administrative
proceedings, the district court should not be reversed for not
addressing an argument that the Tribe failed to advance
before it. It appears that the Tribe waived its alternate
proposal argument by failing to present it to the district court.

III

Finally, I cannot agree with the majority’s gratuitous
comments on the merits of the Tribe’s “alternate proposal” to
close its Win-River Casino and open a casino on Strawberry
Fields. The panel is in accord that (1) the regulation is
reasonable, (2) the Indian canon does not apply, and (3) there
has been no unexplained change in agency policy. These
cover the primary issues raised by the Tribe. Indeed, in its
reply brief, the Tribe reiterates that it “has consistently
challenged a very specific component of the Secretary’s
interpretation; the requirement set forth in 25 C. F. R.
§ 292.12(c)(2) that the tribe must not ‘already be gaming on
other lands.’” Our agreement with the district court on these
three issues should end this litigation, there is no need for
further comment.
 REDDING RANCHERIA V. JEWELL 27

However, section IV of the majority opinion, after
incorrectly accepting as fact both that the Tribe made an
alternate proposal to the Department and that the district
court’s order contemplated that the Tribe sought to operate
multiple casinos,3 proceeds to offer questionable dicta. The
majority recognizes that the regulation contains a prohibition
against gaming on other lands, but then comments:

The regulation is not clear, however, that the
agency must also look to the date of the
application to determine whether the tribe has
satisfied the prohibition against gaming on
other lands. While the regulation could be so
interpreted, the agency has so far provided no
reason why it should. Allowing a restored
tribe to move a casino does not appear to
conflict with the statutory purpose of ensuring
parity among restored and established tribes.

Maj. at 17.

This approach is wrong on a number of fronts. First, it
takes liberty with the regulation’s language. The critical
subsection reads: “the tribe submitted an application to take
the land into trust within 25 years after the tribe was restored
to Federal recognition and the tribe is not gaming on other
lands.” Why isn’t the most natural reading of the subsection
that the Secretary must look to the date of the application in
determining whether the application was submitted within the
25 year period and whether the tribe “is not gaming on other

3
The majority states that: “The district court did not consider the Tribe’s
alternative offer and construed its application as if it necessarily
contemplated the operation of multiple casinos.”
28 REDDING RANCHERIA V. JEWELL

lands?” The subsection directs the Secretary to look at what
is happening, not what might happen in the future.

Second, this is the Secretary’s position as set forth in the
December 22, 2010 decision. The Secretary’s brief reasserts
that “the regulations are clear, and contain no provision for an
expression of future intent with an undefined time frame.”
There is no doubt that throughout the proceedings the Tribe
has operated the Win-River Casino. Thus, according to the
Secretary, whether the Tribe intended to close the Win-River
Casino if it prevailed on its application was “irrelevant.” The
Department’s interpretation of its own regulation is
controlling because it is not plainly erroneous or inconsistent
with the statute. Auer v. Robbins, 519 U.S. 452, 461 (1997)
(holding that a Secretary’s interpretation of a Department’s
regulation is controlling unless plainly erroneous or
inconsistent with the regulation). Indeed, the Tribe has not
argued, and the majority has not held, otherwise. Moreover,
this is not a situation where the Secretary has changed his
position during litigation or offered a post hoc rationalization.
See Christopher v. SmithKline Beecham Corp., 132 S. Ct.
2156, 2166–67 (2012). Rather, the Secretary has consistently
given “is not gaming on other lands” its ordinary meaning.
It is the Tribe that on appeal advances a new proposed
definition of the term.

Third, the majority’s approach places the cart before the
horse. I agree with the majority that “the Secretary
reasonably implemented the restored lands exception,” and
that under the Administrative Procedure Act, the Secretary’s
“interpretation is owed deference so long as it is reasonable.”
Maj. at 12 (citing United States v. Mead Corp., 533 U.S. 218,
229 (2001); and Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 845 (1984)). We have further
 REDDING RANCHERIA V. JEWELL 29

held that “[u]nder the APA, we may only set aside an agency
action if it is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” MacClarence v.
United States Environmental Protection Agency, 596 F.3d
1123, 1130 (9th Cir. 2010) (internal quotation marks and
citation omitted). The Tribe has the burden of showing that
the Secretary’s interpretation of the regulation is plainly
erroneous, and the Secretary had no obligation to anticipate
what the Tribe might argue on appeal. Here, the Secretary’s
interpretation is reasonable, as the majority essentially
admits. Maj. at 17. The Tribe has failed to demonstrate that
the Secretary’s reading of “is not gaming on other lands” was
arbitrary, capricious or an abuse of discretion.

Moreover, even if the Secretary’s interpretation of “not
gaming” was not the most reasonable reading of the
subsection, it is at least sufficiently reasonable to place the
burden of proving a different interpretation on the Tribe.
However, the record shows that although the Tribe informed
the Secretary of its willingness to move its casino, it never
offered any arguments to the Secretary or the district court as
to why its offer was, or should be, relevant to the
interpretation of the regulation. Even the Tribe’s passing
argument on this issue in its brief to this court is devoid of
any citation to case law or regulation.

Finally, the assertion that moving a casino “does not
appear to conflict with the statutory purpose of ensuring
parity among restored and established tribes” is dicta,
unsupported by anything in the record, and possibly contrary
to panel’s reasoning for otherwise affirming the Secretary’s
decision. The Tribe wants to build the Strawberry Fields
Casino because it would be bigger and presumably more
profitable than the Win-River Casino. But wouldn’t allowing
30 REDDING RANCHERIA V. JEWELL

restored tribes, but not established tribes, to move their
casinos to newly acquired land alter the balance between
restored and established tribes? Perhaps, if the Tribe’s lands
had never been confiscated, it might have built its casino at a
better location in the first instance, but it is not clear why the
Tribe’s particular challenges are, or should be, relevant to
the Secretary’s interpretation of the regulation. I am at a loss
to explain how the majority can otherwise affirm the
Secretary’s decision but then suggest that the Tribe’s intent
to move its casino rather than operate a second casino might
somehow change the Secretary’s interpretation of the
regulation.

IV

If the Tribe wants to ask the Secretary to reconsider the
December 22, 2010 decision on the basis that “is not gaming
on other land” may, or should be, interpreted to allow a Tribe
to move its casino from existing land to newly acquired land,
it presumably may do so. I express no opinion as to whether
the Secretary should entertain, or grant, such a request.
However, having unanimously determined that the
Secretary’s interpretation of “is not gaming on other land” is
reasonable, we should not comment on the Tribe’s belated
offer to move its casino. This is so because the Tribe did not
fairly present its argument to the Secretary or to the district
court. Furthermore, the majority’s dicta is contrary to the
Secretary’s reasonable interpretation of the regulation, which
is entitled to deference, and the dicta is unsupported by facts
or legal argument. Accordingly, the majority’s misguided
championing of the Tribe’s offer to move the casino
misconceives the judiciary’s review function under the
Administrative Procedure Act, and is unlikely to produce any
actual benefit for the Tribe. Because we should limit our
 REDDING RANCHERIA V. JEWELL 31

opinion to our determination that the Secretary otherwise
reasonably interpreted the regulation and denied the Tribe’s
application, I dissent from part IV of the opinion.