concurring in part, dissenting in part:
I concur in the majority’s opinion Parts I, II, III A, III B 1, III B 2 A, and III C. But I dissent from the majority’s conclusions in Part III B 2 B, III B 3, and III B 4 that the NIGC was not required to make an “Indian lands” determination before the casino construction began. I would reverse the district court on this issue. I regret that the majority disregards the most salient fact of this case: The Nook-sack Tribe built a casino that may or may not be on Indian lands. The majority acknowledges that we do not know whether it is or not. Maj. op. at 747. Under the majority’s approach, we may never know whether the casino is on Indian lands, and the North County Community Alliance cannot get judicial review to determine whether the casino is properly on Indian lands or not. Because there has never been an Indian lands determination, it remains unclear if the IGRA applies or if local, state and federal regulations apart from the IGRA regime apply.1
The majority leaves the casino in legal limbo, stating that whether this casino is on Indian lands is a question that will be litigated only if the NIGC or state authorities choose to exercise their prosecutorial discretion. The majority concludes that the IGRA has authorized this limbo, and that there is nothing for our court to do. But in my view Congress could not have intended the majority’s approach when it enacted the IGRA. Consider this hypothetical set of facts that I hope may be illuminating: If an Indian Tribe, after having received approval on a non-site-specific ordinance, bought land in downtown Seattle, under the majority’s approach the NIGC would have no duty to stop the tribe from erecting a casino, even if the land clearly did not fall within the statutory definition of Indian lands. See 25 U.S.C. § 2703(4). Thus as the majority sees IGRA, the NIGC would have no duty to act to prevent construction of a clearly unauthorized casino. The majority notes that the state authorities or the NIGC may act, but they also may not. The citizens neighboring the casino site have no way to ensure that the casino is not built on lands that are not Indian lands. I conclude that Congress would never have intended to leave the Indian lands determination to the discre*750tion of the NIGC and state authorities nor did Congress intend to allow the determination to happen after the gaming facility’s construction. That would be a deplorable way to interpret the statute which could easily lead to grave financial problems for an Indian tribe that had the temerity to build a casino on lands that later turned out to not qualify as Indian lands.
The majority’s reliance on the text of a single provision of the statute, without consideration of the surrounding provisions, leads it astray. After considering the IGRA as a whole, I conclude that the majority’s interpretation of the statute is inconsistent with the statute’s explicitly stated intent, its stated purpose, and the necessary assumptions underlying other provisions of the statute. See John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993) (answering a statutory construction question “not by a single sentence or member of a sentence, but looking to the provisions of the whole law, and to its object and policy”) (internal quotation omitted); United Savs. Ass’n. of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (“Statutory construction ... is a holistic endeavor.”).
The majority’s holding that the NIGC has no duty to make an Indian lands determination, which would permit Indian tribe gaming to occur anywhere, is contrary to legislative intent and stated purposes. See Reves v. Ernst & Young, 494 U.S. 56, 60-61, 110 S.Ct. 945, 108 L.Ed.2d 47 (1990) (interpreting the Securities Act in accordance with its purpose). In enacting the IGRA, Congress found there was an absence of “clear standards or regulations for the conduct of gaming on Indian lands” and sought to remedy that absence. See Indian Gaming Regulatory Act, Pub.L. No. 100-497 (codified at 25 U.S.C. § 2701(3)) (emphasis added). Congress also noted that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands” if the activity is not prohibited by state or federal law. Id. § 2701(5) (emphasis added). With these findings Congress could not have intended to create a regime where the NIGC did not have to make Indian lands determinations. Gaming facilities built in the absence of such a determination will thwart the Congressional intent to provide clear standards and regulations of Indian gaming on Indian lands.
Congress also found that gaming is an important means of generating tribal revenue, promoting tribal self-sufficiency and economic development, and these are “principal goal[s] of Federal Indian policy.” Id. § 2701(4). Allowing the Indian tribe to construct a gaming facility before the tribe knows whether the federal government will recognize it as within its tribal jurisdiction frustrates the goal of promoting tribal economic development and self-sufficiency. If it later became clear that the gaming facility was not on Indian lands, the IGRA would no longer apply, and the facility would be regulated by “all state and local gambling laws and federal laws apart from IGRA.” 73 Fed.Reg. at 6022. Thus the majority’s holding that no Indian lands determination by the NIGC must precede the construction of an Indian tribal casino is a disaster waiting to happen. These state and local regulations, and federal regulations apart from IGRA, may be stringent or prohibitive, thus depriving the Indian tribe of their planned economic revenue, and rendering its investment in the gaming facility an economic liability. Such an event would hinder the principal goals of federal Indian policy of promoting self-sufficiency and economic development.
*751The legislative purposes outlined by Congress in enacting the IGRA also underscore the NIGC’s implicit duty to make an Indian lands determination. One of the statute’s stated purposes is “to declare that the establishment of independent Federal regulatory authority for gaming on Indian lands, the establishment of Federal standards for gaming on Indian lands ... are necessary to meet congressional concerns regarding gaming and to protect such gaming as a means of generating tribal revenue.” 25 U.S.C. § 2702(3). How could the NIGC, the agency tasked with regulating and protecting gaming on Indian lands effectuate this intent without determining whether proposed gaming was on Indian lands and thus within its jurisdiction? The NIGC, like all federal agencies, does not have authority that expands beyond what Congress has delegated to it. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (“[A]n agency ... has no power to act ... unless and until Congress confers powers upon it.”). The NIGC, therefore, cannot allow construction of a new gaming facility before it determines that it has jurisdiction over that specific site. Cf. Citizens Against Casino Gambling in Erie County v. Kempthorne (“Erie County”), 471 F.Supp.2d 295 (W.D.N.Y.2007) (determining that the NIGC had to make an Indian lands determination prior to approving a non-site-specific ordinance). Stated simply, the NIGC has no statutory authority to empower a regime under which tribes could build casinos at any location, whether or not on Indian lands.
The court in Erie County held that the NIGC must satisfy its jurisdiction before it approves a general non-site-specific gaming ordinance. Id. I do not think that is necessary for a non-site-specific gaming ordinance. The NIGC must have satisfied its own jurisdiction before it regulates class II or class III gaming under the statute, but the NIGC could choose to do this after it approves a general ordinance and before the Indian tribe issues a site-specific license. The NIGC is best left to determine the appropriate procedural method to carry out its duties. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 524, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (emphasizing that the formulation of procedures is left to the sound discretion of the administrative agency). What is important is that the NIGC make its Indian lands determination before an Indian tribe commences construction on a particular location.2
Finally, the majority’s interpretation of the statute is inconsistent with the policy and necessary assumptions of several other provisions of the statute. See Timbers of Inwood Forest Assocs., 484 U.S. at 371, 108 S.Ct. 626 (interpreting one section of the Bankruptcy Code to be consistent with the policy of other provisions of the Code); Gade v. Nat.’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 99-102, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (interpreting the Occupational Safety and Health Act to be consistent with the assumptions of other provisions). There can be no question that several provisions of the statute apply exclusively to Indian lands and that these sections presuppose that the NIGC will make an Indian lands determination. The statute defines “Indian lands,” 25 U.S.C. *752§ 2703(4); it gives the Commission authority to monitor class II gaming “conducted on Indian lands” and to inspect class II gaming facilities “located on Indian lands,” id. § 2706(b); it provides for the Chairman to approve tribal ordinances concerning the conduct or regulation of class I and class II gaming “on Indian lands,” id. § 2710(a); the statute forbids that authorized gaming occur on lands acquired by the Secretary in trust for the Indian tribe after the date of the enactment of the Act, with some specific exceptions, id. § 2719; and the statute makes theft from gaming establishments “on Indian lands” a federal crime, 18 U.S.C. § 1167-68. In the face of these provisions, how can the NIGC not have an obligation to determine whether a gaming site is Indian lands? I conclude that it must make such a determination. All of these statutory provisions presuppose that the NIGC will determine whether the gambling site is on Indian lands. Without an Indian lands determination, these provisions make no.sense and would be unworkable. Therefore, the policy and necessary assumptions of the statute compel the conclusion that the NIGC has a duty to make an Indian lands determination before allowing casino construction to go forward.
Looking at the IGRA as a whole, I conclude that Congress conferred upon the NIGC a duty to make an Indian lands determination before construction of a gaming facility can commence. The NIGC, as the agency tasked with implementing the IGRA, has the appropriate powers to decide the manner in which it implements this duty, but it was a duty nonetheless that had to be implemented before construction began at the challenged site, an obligation that the NIGC has shirked in this case. I respectfully dissent and would hold that the NIGC has acted in an arbitrary and capricious manner by not fulfilling that duty.
. If the Nooksack Tribe’s casino is not on Indian lands, it is not authorized by the IGRA and all local, state, and federal regulations apart from the IGRA apply. See Facility License Standards, 73 Fed.Reg. 6019, 6022 (Feb. 1, 2008).
. The NIGC now recognizes that its job must include the ability to make an Indian lands determination after approving a non-site-specific ordinance. The agency has implemented regulations that require an Indian tribe to submit Indian lands information to the NIGC at least 120 days before the tribe issues a new license for a gaming facility, though the regulations do not expressly require NIGC to make an Indian lands determination after getting that information. See 25 C.F.R. § 559.2.