Stand Up for California! v. Usdoi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STAND UP FOR CALIFORNIA!; No. 18-16830
RANDALL BRANNON; MADERA
MINISTERIAL ASSOCIATION; SUSAN D.C. No.
STJERNE; FIRST ASSEMBLY OF GOD - 2:16-cv-02681-
MADERA; DENNIS SYLVESTER, AWI-EPG
Plaintiffs-Appellants,

v. OPINION

U.S. DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT; BUREAU OF
INDIAN AFFAIRS; LAWRENCE
ROBERTS,
Defendants-Appellees,

NORTH FORK RANCHERIA OF MONO
INDIANS,
Intervenor-Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding

Argued and Submitted February 11, 2020
San Francisco, California

Filed May 27, 2020
2 STAND UP FOR CALIFORNIA! V. USDOI

Before: R. Guy Cole, Jr., * Ronald M. Gould, and
Mary H. Murguia, Circuit Judges.

Opinion by Judge Gould

SUMMARY **

Tribal Gaming / Environmental Law

The panel affirmed in part the district court’s summary
judgment in favor of the Secretary of the Interior and
intervenor North Fork Rancheria of Mono Indians as to
plaintiffs’ Johnson Act claim, and vacated and remanded in
part as to environmental claims, in an action challenging the
Secretary’s issuance, under the Indian Gaming Regulatory
Act (“IGRA”), of Secretarial Procedures which authorized
the North Fork Rancheria of Mono Indians to operate
Class III gaming activities on a parcel of land in Madera,
California.

The Johnson Act prohibits the possession or use of any
gambling device within Indian country, including slot
machines. IGRA, on the other hand, provides for the
operation of gaming by Indian Tribes. IGRA Class III
gaming, at issue here, includes slot machine gaming
activities.

*
The Honorable R. Guy Cole, Jr., Chief Judge of the United States
Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 STAND UP FOR CALIFORNIA! V. USDOI 3

The panel held that although IGRA did not expressly
exempt Secretarial Procedures from the restrictions of the
Johnson Act, the broader context of the statute and the
obligation to harmonize multiple statutes when possible, led
the panel to conclude that gaming conducted pursuant to
Secretarial Procedures was not subject to the Johnson Act.
The panel held that the Secretarial Procedures complied with
the Administrative Procedure Act, and affirmed the district
court’s judgment in favor of appellees on the claim.

The panel held that the district court erred in holding that
under IGRA, the Secretary in issuing Secretarial Procedures
lacked discretion to consider any other federal laws besides
IGRA, and was excused from completing an environmental
impact statement (“EIS”) under the National Environmental
Policy Act and a conformity determination under the Clean
Air Act. The panel held that Secretarial Procedures have no
such per se exemption from these environmental laws. The
panel remanded because the district court did not consider
the threshold questions of whether the Secretarial
Procedures were a major federal action requiring an EIS in
the first place, and whether the EIS and conformity
determination that were previously prepared in 2010 during
the fee-to-trust process satisfied environmental requirements
for present purposes.
4 STAND UP FOR CALIFORNIA! V. USDOI

COUNSEL

Sean M. Sherlock (argued), Todd E. Lundell, and Jing
(Jenny) Hua, Snell & Wilmer L.L.P., Costa Mesa,
California, for Plaintiffs-Appellants.

Rachel E. Heron (argued), J. David Gunter II, Joann Kintz,
Steven Miskinis, and Rachel Heron, Attorneys; Eric Grant,
Deputy Assistant Attorney General; Jeffrey Bossert Clark,
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Andrew S. Caulum, Attorney, Office of
the Solicitor, Washington, D.C.; for Defendants-Appellees
U.S. Department of the Interior, David Bernhardt, Bureau of
Indian Affairs, and Lawrence Roberts.

Danielle Spinelli (argued), Christopher E. Babbitt, John T.
Byrnes, and Claire H. Chung, Wilmer Cutler Pickering Hale
and Dorr LLP, Washington, D.C., for Intervenor-Defendant-
Appellee North Fork Rancheria of Mono Indians.

OPINION

GOULD, Circuit Judge:

Plaintiffs-Appellants challenge the Secretary of the
Interior’s issuance, under the Indian Gaming Regulatory Act
(IGRA), of Secretarial Procedures which authorize the North
Fork Rancheria of Mono Indians to operate class III gaming
activities on a parcel of land in Madera, California.
Appellants contend that the Secretarial Procedures violate
the Administrative Procedure Act (APA) because they
conflict with specific prohibitions of the Johnson Act.
Appellants also contend that the Secretary, in issuing the
 STAND UP FOR CALIFORNIA! V. USDOI 5

Secretarial Procedures, violated the National Environmental
Policy Act (NEPA) and the Clean Air Act (CAA). The
district court granted summary judgment against Appellants
on all claims. We affirm in part, as to Appellants’ Johnson
Act claim, and vacate and remand in part, as to the NEPA
and CAA claims.

I

In 2005, the North Fork Rancheria of Mono Indians
(North Fork)—a federally recognized Indian tribe—
submitted a fee-to-trust application for the United States
Department of the Interior (DOI) to take 305 acres of land in
Madera, California (Madera Parcel), into trust to be
developed into a hotel and casino. In reviewing the fee-to-
trust application, the DOI completed an Environmental
Impact Statement (EIS) under NEPA and made a conformity
determination under the CAA, which were both upheld as
valid in a legal action challenging the fee-to-trust
determination. Stand Up for California! v. Dep’t of the
Interior, 204 F. Supp. 3d 212, 323 (D.D.C. 2016), aff’d,
879 F.3d 1177, 1192 (D.C. Cir. 2018). 1

1
In a consolidated action in the District of Columbia district court,
Stand Up for California!—one of the Appellants in this case—and
another plaintiff challenged the Secretary’s fee-to-trust determination on
several grounds, including that the EIS and conformity determination did
not satisfy NEPA and CAA requirements. The D.C. district court,
affirmed by the D.C. Circuit, rejected the plaintiffs’ claims, including the
NEPA and CAA claims. Stand Up for California!, 204 F. Supp. 3d
at 323. Another lawsuit claiming that the California governor lacked
authority to concur in the Secretary’s determination to exempt North
Fork from gaming prohibitions is pending before the California Supreme
Court. See Stand Up for California! v. State, 390 P.3d 781 (Cal. Mar.
22, 2017); United Auburn Indian Cmty. of the Auburn Rancheria v.
Brown, 387 P.3d 741 (Cal. Jan. 25, 2017). There is also a related appeal
6 STAND UP FOR CALIFORNIA! V. USDOI

North Fork and the State of California then began
negotiating toward a Tribal-State compact to govern gaming
activities on the Madera Parcel, pursuant to 25 U.S.C.
§ 2710(d)(3)(A). See North Fork Rancheria of Mono
Indians v. California, No. 1:15-cv-00419, Docket 46, at 2–3
(E.D. Cal. Aug. 10, 2016). They concluded those
negotiations in 2013, and the Secretary of the Interior
published notice in October 2013 that the compact would
take effect. Id. Before it could take effect, however,
California voters vetoed the Tribal-State compact through a
statewide referendum. Id. Following that referendum, the
state refused to negotiate another Tribal-State compact,
leading North Fork to file an action to compel the state to
negotiate in good faith, pursuant to IGRA, 25 U.S.C.
§ 2710(d). Id., Docket 1.

The district court granted North Fork’s motion for
judgment on the pleadings and ordered California and North
Fork to conclude a compact within sixty days, consistent
with 25 U.S.C. § 2710(d)(7)(A), (d)(7)(B). Id., Docket 25.
When no agreement was reached, the district court appointed
a mediator, who was charged with selecting from among
each party’s last best offer, “the one which best comports
with the terms of [IGRA,] . . . any other applicable Federal
law[,] and with the findings and order of the court.”
25 U.S.C. § 2710(d)(7)(B)(iv). The mediator adopted North
Fork’s proposed compact. When California did not consent
to the proposed compact, the mediator submitted the
proposed compact to the Secretary of the Interior to
prescribe Secretarial Procedures consistent with the
mediator-selected compact, authorizing class III gaming on
the Madera Parcel, pursuant to 25 U.S.C.

in Club One Casino v. Bernhardt, Case No. 18-16696. These related
cases are not central to the issues here.
 STAND UP FOR CALIFORNIA! V. USDOI 7

§ 2710(d)(7)(B)(vii). The Secretary issued those Secretarial
Procedures on July 29, 2016.

In November 2016, Stand Up for California!, a non-
profit corporation and “community watchdog group that
focuses on gambling issues affecting California citizens,”
along with several other plaintiffs (collectively,
“Appellants” or “Stand Up”), brought this suit against the
DOI in the Eastern District of California, challenging the
Secretarial Procedures. Appellants claimed that the
Secretarial Procedures (i) violated the APA because they
were inconsistent with the Johnson Act’s prohibition of
certain gaming devices on Indian lands, (ii) violated NEPA,
(iii) violated the CAA, and (iv) violated the Freedom of
Information Act (FOIA). North Fork intervened and became
co-defendants with the DOI (collectively, “Appellees”).

On cross-motions for summary judgment, the district
court granted Appellees’ motions for summary judgment
and denied Stand Up’s motion for summary judgment on all
claims. Appellants timely appealed all but the FOIA claim.
The district court had jurisdiction under 28 U.S.C. § 1331,
and we have jurisdiction under 28 U.S.C. § 1291.

II

We review a district court’s summary judgment
determination de novo. City & Cty. of San Francisco v.
United States, 130 F.3d 873, 877 (9th Cir. 1997). We also
review a district court’s interpretation of statutory meaning
de novo. Schleining v. Thomas, 642 F.3d 1242, 1246 (9th
Cir. 2011). Under the APA, 5 U.S.C. § 706(2)(A), agency
action will be upheld unless “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law.”
San Francisco, 130 F.3d at 877.
8 STAND UP FOR CALIFORNIA! V. USDOI

III

We consider first whether the Secretarial Procedures are
inconsistent with the Johnson Act and therefore violate the
APA. We conclude, like the district court, that they do not.

A

Before beginning our analysis, we briefly explain the
relevant statutory background. The Johnson Act, enacted in
1951, prohibits the possession or use of “any gambling
device . . . within Indian country,” including slot machines.
15 U.S.C. § 1175(a). IGRA, on the other hand, enacted in
1988, provides “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.” United States v. 103 Electronic Gambling
Devices, 223 F.3d 1091, 1094 (9th Cir. 2000) (quoting
25 U.S.C. § 2702(1)). Under IGRA, there are three
categories of gaming: class I, class II, and class III. Class
III, at issue here, is a catchall for all gaming not included in
class I or class II and includes slot machine gaming
activities. 25 U.S.C. § 2703(6)–(8).

IGRA provides that class III gaming activities on Indian
lands are permissible “only if” the activities are “located in
a State that permits such gaming for any purpose by any
person, organization, or entity, and . . . [are] conducted in
conformance with a Tribal-State compact entered into by the
Indian tribe and the State under paragraph (3) that is in
effect.” 25 U.S.C. § 2710(d)(1). States must enter into
good-faith negotiations with any qualified Indian tribe that
requests to establish a Tribal-State compact for the purpose
of conducting gaming activities. Id. § 2710(d)(3)(A). If a
district court finds that the state has not negotiated in good
faith, it must order the state and the Indian tribe to conclude
 STAND UP FOR CALIFORNIA! V. USDOI 9

a Tribal-State compact within sixty days; absent agreement,
the court appoints a mediator, who adopts from two
proposed compacts—one submitted by the state, the other by
the tribe—“the one which best comports with the terms of
this chapter and any other applicable Federal law and with
the findings and order of the court.” Id.
§ 2710(d)(7)(B)(iii)–(iv). If the state consents to the
proposed compact selected by the mediator, “the proposed
compact shall be treated as a Tribal-State compact entered
into under paragraph (3).” Id. § 2710(d)(7)(B)(vi). But if
the state does not consent, then the “Secretary [of the
Interior] shall prescribe, in consultation with the Indian tribe,
procedures—(I) which are consistent with the proposed
compact selected by the mediator . . . , the provisions of this
chapter, and the relevant provisions of the laws of the State,
and (II) under which class III gaming may be conducted on
the Indian lands over which the Indian tribe has jurisdiction.”
Id. § 2710(d)(7)(B)(vii).

IGRA expressly exempts from the Johnson Act’s
prohibitions “gaming conducted under a Tribal-State
compact that . . . is entered into . . . by a State in which
gambling devices are legal, and . . . [that] is in effect.” Id.
§ 2710(d)(6) (explaining that the “provisions of section 1175
of title 15 [the Johnson Act] shall not apply” under these
circumstances). The statute contains no express exemption
for gaming conducted pursuant to Secretarial Procedures,
and it does not indicate, as with a mediator-selected compact
to which the state consents, that the Procedures “shall be
treated as a Tribal-State compact.” Id. § 2710(d)(7)(B)(vi).

B

“It is a fundamental canon of statutory construction that
the words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.”
10 STAND UP FOR CALIFORNIA! V. USDOI

Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (quoting
Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012)).
In general, a statute should “be construed so that effect is
given to all its provisions, so that no part will be inoperative
or superfluous, void or insignificant.” Corley v. United
States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn,
542 U.S. 88, 101 (2004)). And “when two statutes are
capable of co-existence, it is the duty of the courts, absent a
clearly expressed congressional intention to the contrary, to
regard each as effective.” 103 Electronic Gambling Devices,
223 F.3d at 1102 (citing Morton v. C.R. Mancari, 417 U.S.
535, 550–51 (1974) (“When there are two acts upon the
same subject, the rule is to give effect to both if possible.”)).

Here, although IGRA does not expressly exempt
Secretarial Procedures from the restrictions of the Johnson
Act, the broader context of the statute and our obligation to
harmonize multiple statutes when possible lead us to
conclude that gaming conducted pursuant to Secretarial
Procedures is not subject to the Johnson Act. A contrary
reading leads to a host of inconsistencies, nullities, and
internal contradictions within IGRA.

First, an interpretation in which Secretarial Procedures
are not viewed as exempt from the Johnson Act would create
significant internal conflicts within IGRA. The statute
specifies that “Class III gaming activities shall be lawful on
Indian lands only if such activities are . . . conducted in
conformance with a Tribal-State compact entered into by the
Indian tribe and the State.” 25 U.S.C. § 2710(d)(1)
(emphasis added). But Secretarial Procedures, by definition,
are issued only when no Tribal-State compact has been
reached and are the final remedy for a state’s refusal to
negotiate. Id. § 2710(d)(7)(B)(vii). If Secretarial
Procedures are not treated as equivalent to Tribal-State
 STAND UP FOR CALIFORNIA! V. USDOI 11

compacts for the purposes of § 2710(d)(1), then Secretarial
Procedures can never comply with the only situations in
which class III gaming is lawful on Indian lands. Secretarial
Procedures would always, by definition, violate the very Act
that creates those Procedures.

Appellants contend that the authorization of Secretarial
Procedures in § 2710(d)(7)(B)(vii) creates an additional
situation in which class III gaming may be lawful. But that
interpretation reads out of existence Congress’s use of the
qualifying phrase “only if” in § 2710(d)(1). See Corley,
556 U.S. at 314 (statutes should be “construed so that effect
is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant”). And an
interpretation in which Secretarial Procedures are
functionally equivalent to a compact in the context of
§ 2710(d)(1), but not in the context of the exception to the
Johnson Act in § 2710(d)(6), would contravene the
“presumption that a given term is used to mean the same
thing throughout a statute.” Brown v. Gardner, 513 U.S.
115, 118 (1994).

Also, under Appellants’ proposed reading, Secretarial
Procedures would necessarily conflict with another
provision of IGRA, 18 U.S.C. § 1166. Section 1166 subjects
to criminal liability anyone who conducts gambling
activities on Indian lands who would have been subject to
criminal liability by the state if the activities had occurred on
state rather than Indian lands. Id. § 1166(a). The statute
expressly excludes from its definition of gambling, and thus
from prosecution, “class III gaming conducted under a
Tribal-State compact.” Id. § 1166(c)(2). Again, however, if
Secretarial Procedures are not functionally equivalent to
Tribal-State compacts in this context, then gambling
pursuant to Secretarial Procedures would be subject to
12 STAND UP FOR CALIFORNIA! V. USDOI

possible criminal liability. 2 Reading 18 U.S.C. § 1166 and
25 U.S.C. § 2710(d)(1) to forbid gambling pursuant to
Secretarial Procedures would render those Procedures a
“nullity” and inappropriately deprive § 2710(d)(7)(B)(vii) of
its effect. Cf. 103 Electronic Gambling Devices, 223 F.3d
at 1102 (to read the Johnson Act as forbidding class II
gaming, when IGRA specifically authorizes such gaming,
would improperly render IGRA’s provision a “nullity”).

Second, and relatedly, Appellants’ reading robs IGRA’s
remedial scheme, which relies on Secretarial Procedures to
ensure good-faith negotiation by states, of its force. See S.
Rep. No. 100-446, at 13 (1988) (noting that the remedial
scheme fills the “need to provide some incentive for States
to negotiate with tribes in good faith”). As a general matter,
IGRA was intended “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).
Secretarial Procedures represent the final step in IGRA’s
detailed remedial process for when states do not negotiate in
good faith with Indian tribes toward that end. Id.
§ 2710(d)(7)(B). Although state consent is also a priority, a

2
Appellants contend that § 1166’s definition of gambling is really
about creating jurisdiction, not liability. But this reading contradicts the
text and structure of the provision. The statute provides that, “for
purposes of Federal law, all State laws pertaining to the licensing,
regulation, or prohibition of gambling . . . shall apply in Indian country
in the same manner and to the same extent as such laws apply elsewhere
in the State,” “[s]ubject to subsection (c).” 18 U.S.C. § 1166(a).
Subsection (c) provides the definition of gambling, which excludes from
that definition Tribal-State compacts but not Secretarial Procedures. Id.
§ 1166(c). The gambling definition thus clearly and specifically applies
to § 1166(a), which creates federal criminal liability, and not to
§ 1166(d), which deals with jurisdiction.
 STAND UP FOR CALIFORNIA! V. USDOI 13

state’s failure to enter good-faith negotiations or,
subsequently, to consent to a mediator-selected compact—
where the state otherwise makes such gaming lawful on non-
Indian lands—triggers automatic Secretarial Procedures.
See id. § 2710(d)(7)(B)(vii) (“the Secretary shall prescribe
. . . procedures”) (emphasis added).

Appellants argue that Indian tribes should be forced to
settle for an incomplete remedy—that the Secretary can
approve some class III gaming activities, but not those, like
slot machines, that are illegal under the Johnson Act. But
such an incomplete remedy would create only feeble and
ineffective incentives for states to negotiate in good faith.
For example, if slot machines are otherwise legal in the state,
then they could also be legal under a negotiated Tribal-State
compact. Such a compact would serve IGRA’s purpose of
encouraging tribal economic development by allowing the
tribe to operate gambling devices to the same extent those
devices can lawfully be operated by non-Indians, on non-
Indian land. However, a state that wishes to disadvantage
Indian tribes relative to its non-Indian residents could refuse
to negotiate in good faith if Secretarial Procedures would
never cure a refusal to negotiate the use of devices covered
by the Johnson Act, even if they are otherwise legal
throughout the state on non-Indian land. States operating in
bad faith therefore would have a strong incentive not to
negotiate and instead to elect the limited remedy. We do not
believe that Congress intended such a result that would
permit a state to be hostile to Indian tribes.

Our decision in 103 Electronic Gambling Devices,
223 F.3d at 1101–03, reinforces our reading of the statute.
That case involved similar conflicts between IGRA and the
Johnson Act. Specifically, IGRA expressly authorizes class
II gaming (including bingo) in Indian country, 25 U.S.C.
14 STAND UP FOR CALIFORNIA! V. USDOI

§ 2703(7)(A)(i), but does not expressly exempt class II
gaming devices (including bingo aids) from the prohibitions
of the Johnson Act. 103 Electronic Gambling Devices,
223 F.3d at 1101. Notwithstanding IGRA’s express
exemption from the Johnson Act of class III gaming under a
Tribal-State compact in 25 U.S.C. § 2710(d)(6), and the lack
of such an express exemption for class II bingo aids, we held
that IGRA’s authorization of class II bingo created an
implied exception to the Johnson Act. Id. at 1101–02. We
reasoned that IGRA authorizes class II bingo and that
“[r]eading the Johnson Act to forbid [bingo] aids would
render the [statutory authorization] a nullity.” Id.

We similarly conclude here that IGRA does not at once
authorize Secretarial Procedures, while simultaneously
making gaming pursuant to those Procedures illegal and
robbing the Procedures of their remedial force. As in
103 Electronic Gambling, “[w]e cannot presume that in
enacting IGRA, Congress performed such a ‘useless act.’”
Id. at 1102. Our harmonizing reading, by contrast, gives full
force to the Johnson Act’s prohibition of gambling devices
on Indian lands in all circumstances other than when there is
a Tribal-State compact or Secretarial Procedures in effect.
See Sycuan Band of Mission Indians v. Roache, 54 F.3d 535,
542 (9th Cir. 1994) (if devices “fall within Class III,” they
“can be operated by the [tribe] only pursuant to a compact or
to procedures prescribed by the Secretary of [the] Interior”).
Moreover, it is faithful to our obligation to determine “how
two enactments by Congress over thirty-five years apart
most comfortably coexist, giving each enacting Congress’s
legislation the greatest continuing effect.” 103 Electronic
Gambling, 223 F.3d at 1101; see also Morton, 417 U.S. at
551 (“When there are two acts upon the same subject, the
rule is to give effect to both if possible.” (quoting United
States v. Borden Co., 308 U.S. 188, 198 (1939))).
 STAND UP FOR CALIFORNIA! V. USDOI 15

We conclude that Appellants’ reading of the statute is not
persuasive. But even if we found Appellants’ reading
convincing, the conflicts explained above create, at a
minimum, ambiguity in the statute. Chevron deference and
the Indian canon of statutory construction would demand
that we resolve such ambiguity in favor of Appellees’
reasonable construction in this case.

First, under Chevron, we owe deference to “an agency’s
construction of the statute which it administers,” so long as
that construction is reasonable. Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984). Here,
the Secretary of the Interior has since 1998 construed IGRA
to create an exception to the Johnson Act for Secretarial
Procedures. 63 Fed. Reg. 3289, 3292 (1998) (“To avoid . . .
an absurd result, the statute must be read to mean that all
Secretarial-sanctioned gaming is exempt from the provisions
of the Johnson Act”). As explained, that reading is
reasonable, so we defer to it.

Second, “[a]mbiguity in a statute that is enacted for the
benefit of Indians . . . ‘[is] to be construed liberally in favor
of the Indians, with ambiguous provisions interpreted to
their benefit.’” Artichoke Joe’s Cal. Grand Casino v.
Norton, 353 F.3d 712, 728–29 (9th Cir. 2003) (quoting
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766
(1985)). Congress enacted IGRA for the benefit of Indians.
See Rincon Band of Luiseno Mission Indians v.
Schwarzenegger, 602 F.3d 1019, 1027 (9th Cir. 2010) (“In
passing IGRA, Congress assured tribes that the statute would
always be construed in their best interests.” (citing S. Rep.
No. 100-446, at 13–14)); see also 103 Electronic Gambling
Devices, 223 F.3d at 1094 (IGRA was intended to
“promot[e] tribal economic development, self-sufficiency,
and strong tribal governments” (quoting 25 U.S.C.
16 STAND UP FOR CALIFORNIA! V. USDOI

§ 2702(1))). Accordingly, we construe ambiguity as to
whether the North Fork Indians may operate gaming,
including slot machines, pursuant to Secretarial Procedures
in favor of the tribe.

For those reasons, we hold that Secretarial Procedures
are an exception to the prohibitions of the Johnson Act and
that they therefore comply with the APA. We affirm the
district court’s grant of summary judgment to Appellees on
this claim.

IV

We next consider whether the Secretary, in issuing
Secretarial Procedures, was free not to follow procedures
required under NEPA and the CAA. The district court held
that, under IGRA, the Secretary lacks discretion to consider
any other applicable federal laws besides IGRA, and so the
“rule of reason” categorically excuses the Secretary from
completing an EIS under NEPA and a conformity
determination under the CAA. We hold that the district
court’s conclusion was in error and that Secretarial
Procedures have no such per se exemption from these
environmental laws. However, because the district court did
not consider the threshold questions of whether the
Secretarial Procedures were a major federal action requiring
an EIS in the first place, and whether the EIS and conformity
determination that were previously prepared in 2010 during
the fee-to-trust process satisfy environmental requirements
for present purposes, we vacate and remand.

A

First, we address the district court’s conclusion that the
Secretary had no obligation to complete an EIS under NEPA
based on the district court’s determination that the Secretary
 STAND UP FOR CALIFORNIA! V. USDOI 17

lacks all discretion to comply with any other federal laws
besides IGRA.

NEPA was enacted to “provide[] the necessary process
to ensure that federal agencies take a hard look at the
environmental consequences of their actions.” San Diego
Navy Broadway Complex Coal. v. United States Dep’t of
Def., 817 F.3d 653, 659 (9th Cir. 2016) (quoting Tri-Valley
CAREs v. United States Dep’t of Energy, 671 F.3d 1113,
1123 (9th Cir. 2012)). Under NEPA, an agency is required
to conduct an EIS for all “major Federal actions significantly
affecting the quality of the human environment,” 42 U.S.C.
§ 4332(2)(C), so long as the agency has some control over
preventing the environmental effects—the so-called “rule of
reason.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767,
770 (2004) (for the requirement to apply, the agency’s action
must have a “reasonably close causal relationship” with the
environmental effect, and “where an agency has no ability to
prevent a certain effect due to its limited statutory authority
over the relevant actions, the agency cannot be considered a
legally relevant ‘cause’ of the effect”).

The district court determined that the Secretary lacked
requisite discretion and control to be required to conduct an
EIS. The district court pointed to the language of IGRA,
which provides that “the Secretary shall prescribe . . .
procedures . . . which are consistent with the proposed
compact selected by the mediator . . . , the provisions of
[IGRA], and the relevant provisions of the laws of the State.”
25 U.S.C. § 2710(d)(7)(B)(vii). Noting the statute’s use of
mandatory language (“shall”), the district court read the
provision “to contain an exhaustive list of authorities to be
considered by the Secretary in prescribing Secretarial
[P]rocedures”—the mediator-selected compact, IGRA, and
state law, but not other applicable federal law. The district
18 STAND UP FOR CALIFORNIA! V. USDOI

court reasoned that because, elsewhere in IGRA, Congress
specified that the mediator should consider “other applicable
Federal law,” id. § 2710(d)(7)(B)(iv), the lack of such
language with respect to issuance of Secretarial Procedures
is significant. We disagree with the district court’s overly
restrictive reading.

“When confronted with two Acts of Congress allegedly
touching on the same topic, [we are] not at liberty to pick
and choose among congressional enactments and must
instead strive to give effect to both.” Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1624 (2018) (citations and quotation
marks omitted). This is especially so in the case of NEPA,
which “directs that, ‘to the fullest extent possible . . . public
laws of the United States shall be interpreted and
administered in accordance with [it].’” Jamul Action Comm.
v. Chaudhuri, 837 F.3d 958, 961 (9th Cir. 2016) (quoting
Westlands Water Dist. v. Nat. Res. Def. Council, 43 F.3d
457, 460 (9th Cir. 1994)). We have recognized only “two
circumstances where an agency need not complete an EIS
even in the presence of major federal action and ‘despite an
absence of express statutory exemption’”: (1) “where doing
so ‘would create an irreconcilable and fundamental conflict’
with the substantive statute at issue,” and (2) where, “in
limited instances, a substantive statute ‘displaces’ NEPA’s
procedural requirements.” Id. at 963 (quoting San Luis &
Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 648
(9th Cir. 2014)). Neither circumstance applies here.

Although the Secretary must prescribe Secretarial
Procedures once the state has not timely consented to a
mediator-selected compact, that does not mean the Secretary
has no discretion whatsoever over the form of those
Procedures. We do not read the command that Secretarial
Procedures be “consistent with the proposed compact
 STAND UP FOR CALIFORNIA! V. USDOI 19

selected by the mediator . . . , the provisions of [IGRA], and
the relevant provisions of the laws of the State,” 25 U.S.C.
§ 2710(d)(7)(B)(vii), to mean that the Secretary must in
every case adopt the mediator-selected compact wholesale,
without modification. The terms “consistent with” and
“adopt” are plainly not synonymous. And earlier in the
statute, Congress specified that the mediator must “select”
one of the two proposed compacts offered by the state and
the tribe. Id. § 2710(d)(7)(B)(iv). Congress could have used
similarly restrictive language, such as “adopt,” with respect
to Secretarial Procedures, if it so intended.

Moreover, while the statute enumerates some authorities
that the Secretary must consider, it does not by its terms
preclude the Secretary from considering other federal law.
The statute can reasonably be read to allow for some
discretion on the Secretary’s part. See New Mexico v. Dep’t
of Interior, 854 F.3d 1207, 1225 (10th Cir. 2017) (“[O]nce
the process has reached the point where the Secretary is
statutorily authorized to prescribe procedures, there arguably
could be more than one permissible reading of the
Secretary’s authority—for example, regarding what it means
to adopt procedures ‘consistent with the proposed
compact.’”). Indeed, although other circuits have held that
the Secretary’s role in prescribing Secretarial Procedures is
limited in certain ways, no court has ever held that the
Secretary entirely lacks discretion to consider federal law at
all in issuing Procedures. See id. (noting that “the
Secretary’s role is limited” with respect to the timing of
Secretarial Procedures, without limiting the Secretary as to
the form of Procedures); see also Texas v. United States,
497 F.3d 491, 503 (5th Cir. 2007) (the Secretary has limited
authority “to step in only at the end of the [remedial]
process” and “may not pull out of thin air the compact
provisions that he is empowered to enforce” (emphasis
20 STAND UP FOR CALIFORNIA! V. USDOI

added)). Public Citizen, which held that the “rule of reason”
obviated NEPA’s requirements, is distinguishable because
that case involved a situation in which an agency
unambiguously had no discretion to change the decision
made by the President. See 541 U.S. at 770 (“Because the
President, not FMCSA, could authorize (or not authorize)
cross-border operations . . . , and because FMCSA has no
discretion . . . , its EA did not need to consider the
environmental effects arising from the entry.” (emphasis
added)).

Given that IGRA does not foreclose all consideration of
applicable federal laws by the Secretary when issuing
Secretarial Procedures, there is no “irreconcilable and
fundamental conflict” between IGRA and NEPA. Jamul
Action, 837 F.3d at 963. Similarly, the implicit goal of
IGRA to allow expedited authorization of tribal gaming, see
Rincon Band, 602 F.3d at 1041, is not the same as “an
unyielding statutory deadline for agency action” and does
not rise to the level of a fundamental, irreconcilable conflict.
Jamul Action, 837 F.3d at 964 (holding that an irreconcilable
conflict with NEPA existed because the “statute mandate[d]
a fixed time period for implementation [which was] too short
to allow the agency to comply with NEPA”); see Jewell,
747 F.3d at 648 (no irreconcilable conflict where
“[a]lthough the statute sets out a timetable for the
consultation process, it is flexible enough to accommodate
the preparation of an EIS”); Jones v. Gordon, 792 F.2d 821,
826 (9th Cir. 1986) (holding that NEPA applied because the
requirement that an agency act “as soon as practicable” was
not in “irreconcilable and fundamental” conflict with the
need for the agency to complete an EIS).

IGRA also does not “displace” NEPA because it does not
create any comparable process for ensuring environmental
 STAND UP FOR CALIFORNIA! V. USDOI 21

protection. Compare Jewell, 747 F.3d at 649–50
(concluding that Section 7 of the Endangered Species Act
does not displace NEPA requirements because their
procedures analyze and accomplish different things), with
Douglas County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir.
1995) (holding that Section 4 of the Endangered Species Act
displaces NEPA because it accomplishes all of NEPA’s
goals and makes NEPA “superfluous”).

Our interpretation also comports with common sense. A
construction in which the Secretary retains some discretion
to consider and comply with applicable federal laws avoids
a situation where the Secretary would potentially be required
to violate federal law, including perhaps the Constitution, by
issuing Secretarial Procedures—a situation which no doubt
Congress did not intend. Appellees contend that such
practical problems are unlikely to occur because, before the
Secretary acts, the mediator must choose a proposed
compact that “best comports with the terms of this chapter
and any other applicable Federal law.” 25 U.S.C.
§ 2710(d)(7)(B)(iv). But the fact remains that the mediator
can only “select from the two proposed compacts the one
which best comports” with IGRA and other federal law. Id.
(emphasis added). In other words, the plain language
confines the mediator even more than the Secretary because
the mediator must choose either one or the other proposed
compact, as proposed by the state or the tribe, based on
whichever is closer to complying with relevant law. If each
proposes a compact that is contrary to federal law, then the
mediator must nevertheless select one without modification;
and, under Appellees’ and the district court’s reading, the
Secretary must in turn adopt that unlawful proposed
compact. We will not presume that Congress would enact a
statute that requires a federal agency to violate federal law.
22 STAND UP FOR CALIFORNIA! V. USDOI

See, e.g., Epic Systems, 138 S. Ct. at 1624 (courts should
strive to give effect to both laws when two are in conflict).

In short, we conclude that IGRA does not categorically
bar application of NEPA because the two statutes are not
irreconcilable and do not displace each other, and because a
contrary result would contravene congressional intent and
common sense. We therefore vacate the district court’s
order on this issue. However, because the district court did
not consider in the first instance several threshold questions
regarding the applicability of NEPA’s requirements in this
particular case, we remand for the district court to consider:
(1) whether the Secretarial Procedures were a “major Federal
action” triggering NEPA’s requirements in the first place;
(2) if so, whether the Secretary could rely on the prior EIS
for present purposes 3; and (3) if the Secretary could not do
so, whether to remand to the Secretary to comply with NEPA
by supplementing the prior EIS.

B

For similar reasons, we vacate and remand the district
court’s grant of summary judgment against Appellants’
claim that the Secretary was required to, but did not, make a

3
“An existing environmental analysis prepared pursuant to NEPA
. . . may be used in its entirety if the Responsible Official determines,
with appropriate supporting documentation, that it adequately assesses
the environmental effects of the proposed action and reasonable
alternatives. The supporting record must include an evaluation of
whether new circumstances, new information or changes in the action or
its impacts not previously analyzed may result in significantly different
environmental effects.” 43 C.F.R. § 46.120(c). “Responsible Officials
should make the best use of existing NEPA documents by
supplementing, tiering to, incorporating by reference, or adopting
previous NEPA environmental analyses to avoid redundancy and
unnecessary paperwork.” Id. § 46.120(d).
 STAND UP FOR CALIFORNIA! V. USDOI 23

conformity determination under the CAA. Our analysis
above shows that the Secretary has some discretion to
consider other applicable federal laws in prescribing
Secretarial Procedures. And our duty to strive to give effect
to multiple statutes rather than finding conflict, Epic
Systems, 138 S. Ct. at 1624, convinces us that the district
court erred by categorically precluding the CAA’s
requirements in the context of IGRA.

Appellees raise one additional argument, that EPA
regulations exempt agency rulemaking and administrative
adjudications from CAA requirements. Contrary to
Appellees’ assertions, the relevant regulation exempts
“[r]ulemaking and policy development and issuance,”
40 C.F.R. § 93.153(c)(2)(iii), not administrative
adjudications. Appellees cite no authority to support their
claim that Secretarial Procedures are a type of rulemaking,
and indeed Secretarial Procedures are not issued pursuant to
rulemaking requirements and procedures under the APA.
See, e.g., 5 U.S.C. § 553.

For these reasons, we conclude that the district court
erred by holding that Secretarial Procedures are
categorically exempt from the CAA’s requirement of a
conformity determination. We remand, however, for the
district court to consider in the first instance whether the
conformity determination previously completed during the
fee-to-trust process satisfies the CAA’s requirements for
present purposes.

V

For the foregoing reasons, we AFFIRM in part as to the
Johnson Act claim, and VACATE and REMAND in part as
to the environmental claims. Each party shall bear its own
costs on appeal.