Texas v. United States

KING, Circuit Judge,

concurring in part and in the judgment:

I concur in Part III.A of the opinion, which deals with justiciability. On the merits, I concur only in the judgment, reversing the district court’s conclusion that the Secretary of the Interior (“Secretary”) had the authority to promulgate the challenged regulations.

In my view, the lack of any provision in the Indian Gaming Regulatory Act (“IGRA”) addressing the dismissal of an Indian tribe’s enforcement suit on sovereign immunity grounds is a statutory gap that is akin to the gap recognized in Pittston Co. v. United States, 368 F.3d 385, 403-04 (4th Cir.2004), and Sidney Coal Co. v. Social Security Administration, 427 F.3d 336, 346 (6th Cir.2005). Those cases held that the Social Security Commissioner had implicit authority to fill a gap exposed by the Supreme Court’s invalidation of a portion of the Coal Industry Retiree Health Benefit Act of 1992; in this case the Secretary’s general authority to effectuate statutes relating to Indian affairs provides analogous gap-filling power with regard to IGRA. See 25 U.S.C. §§ 2, 9; Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); Organized *512Village of Kake v. Egan, 369 U.S. 60, 63, 82 S.Ct. 562 (1962).

However, the Secretary’s authority to effectuate IGRA’s provisions does not include the power to jettison some of those provisions in the cause of gap-filling, regardless of whether they no longer seem wise or appropriate in light of events that Congress did not foresee. In my opinion, the method used by the Secretary to fill the gap here — creating an alternative remedial scheme that allows the Secretary to issue Class III gaming procedures without Congress’s chosen prerequisites of a court determination of a state’s bad faith and court-directed mediation, see 25 U.S.C. § 2710(d)(7) — goes beyond the mere effec-tuation of IGRA’s provisions into the realm of wholesale statutory amendment. Cf. Gonzales v. Oregon, 546 U.S. 243, 258, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (“Chevron deference ... is not accorded merely because the statute is ambiguous.... To begin with, the rule must be promulgated pursuant to authority Congress has delegated to the official.”). By omitting those prerequisites, though for understandable reasons, the Secretary’s method fails to preserve the core safeguards by which state interests are protected in Congress’s “carefully crafted and intricate remedial scheme.” Seminole Tribe of Florida v. Fla., 517 U.S. 44, 73-74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); cf. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 91, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) (invalidating an administrator’s remedial regulation that “worked an end run around important limitations of the [relevant] statute’s remedial scheme” by allowing a penalty to be imposed without the threshold court determination provided for by the statute). And despite a state’s unforeseen and unintended ability to prevent the necessary court involvement from occurring, the Secretary “has no power to correct flaws that [he] perceives in the statute [he] is empowered to administer. [His] rule-making power is limited to adopting regulations to carry into effect the will of Congress as expressed in the statute.” Bd. of Governors v. Dimension Fin. Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986).

Today’s decision returns IGRA’s Class III gaming system to the complicated situation that existed after the Supreme Court’s decision in Seminole Tribe, with a state having the leverage to block gaming on Indian land under IGRA in a manner wholly contrary to Congress’s intent. Alternatively, one could argue that a tribe dealing with a state that will not negotiate or consent to an enforcement suit is no longer bound by IGRA’s prohibition on gaming without a compact, depending on the circumstances. See, e.g., United States v. Spokane Tribe of Indians, 139 F.3d 1297 (9th Cir.1998). We do not resolve these difficulties here, as they are not before this court. But because neither result is consistent with IGRA’s design, the situation clearly calls for congressional action.