Capay Valley Coalition v. Jewell, et al

MOTION for SUMMARY JUDGMENT

E.D. Cal.September 7, 2016

2:15-cv-02574-MCE-KJN YOCHA DEHE NOTICE OF MOTION & MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 PAULA M. YOST (CA Bar No. 156843) MATTHEW G. ADAMS (CA Bar No. 229021) DENTONS US LLP One Market Plaza, Spear Tower, 24th Floor San Francisco, California 94105 Telephone: (415) 267-4000 Facsimile: (415) 267 4198 E-mail: paula.yost@dentons.com matthew.adams@dentons.com Attorneys for Intervenor-Defendant YOCHA DEHE WINTUN NATION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CAPAY VALLEY COALITION, an unincorporated association, Plaintiff, v. SALLY JEWELL, in her official capacity as Secretary of the Interior; KEVIN K. WASHBURN, in his official capacity as Assistant Secretary of Indian Affairs of the United States Department of the Interior; AMY DEUTSCHKE, in her official capacity of Pacific Regional Director, Bureau of Indian Affairs; BUREAU OF INDIAN AFFAIRS; DOES 1 through 100, inclusive, Defendants, and YOCHA DEHE WINTUN NATION, a federally recognized sovereign Indian nation, Intervenor-Defendant. Case No. 2:15-cv-02574-MCE-KJN INTERVENOR-DEFENDANT YOCHA DEHE WINTUN NATION’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case 2:15-cv-02574-MCE-KJN Document 20 Filed 09/07/16 Page 1 of 2 2:15-cv-02574-MCE-KJN - 2 - YOCHA DEHE NOTICE OF MOTION & MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 101253951\V-3 TO ALL PARTIES AND THEIR COUNSEL OF RECORD PLEASE TAKE NOTICE, that at 2:00 p.m. on December 15, 2016, before the Honorable Morrison C. England, Intervenor-Defendant the Yocha Dehe Wintun Nation (the “Tribe” ) will, and hereby does, move for summary judgment against Plaintiff Capay Valley Coalition. This motion is made on the grounds that (1) the Federal Defendants in this matter fully complied with all legal requirements applicable to their acquisition of property in trust for the Tribe and (2) Plaintiff has not established its standing, as demonstrated in the Tribe’s Memorandum of Points and Authorities in Support of this Motion. Dated: September 7, 2016 DENTONS US LLP By: /s/ Paula M. Yost Paula M. Yost Matthew Adams Attorneys for Intervenor-Defendant YOCHA DEHE WINTUN NATION Case 2:15-cv-02574-MCE-KJN Document 20 Filed 09/07/16 Page 2 of 2 2:15-cv-02574-MCE-KJN YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 PAULA M. YOST (Cal. Bar No. 156843) MATTHEW G. ADAMS (Cal. Bar No. 229021) DENTONS US LLP One Market Plaza, Spear Tower, 24th Floor San Francisco, California 94105 Telephone: (415) 267-4000 Facsimile: (415) 267 4198 E-mail: paula.yost@dentons.com matthew.adams@dentons.com Attorneys for Intervenor-Defendant YOCHA DEHE WINTUN NATION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CAPAY VALLEY COALITION, an unincorporated association, Plaintiff, v. SALLY JEWELL, in her official capacity as Secretary of the Interior; KEVIN K. WASHBURN, in his official capacity as Assistant Secretary of Indian Affairs of the United States Department of the Interior; AMY DEUTSCHKE, in her official capacity of Pacific Regional Director, Bureau of Indian Affairs; BUREAU OF INDIAN AFFAIRS; DOES 1 through 100, inclusive, Defendants, and YOCHA DEHE WINTUN NATION, a federally recognized sovereign Indian nation, Intervenor-Defendant. Case No. 2:15-cv-02574-MCE-KJN INTERVENOR-DEFENDANT YOCHA DEHE WINTUN NATION’S CONSOLIDATED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 1 of 38 2:15-cv-02574-MCE-KJN - i - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 TABLE OF CONTENTS Contents: Page: INTRODUCTION ...................................................................................................1I. STATUTORY AND REGULATORY BACKGROUND ............................................2II. A. The Indian Reorganization Act .........................................................2 B. The Part 151 Regulations.................................................................4 C. The Legal Effect of Trust Acquisition................................................5 FACTUAL AND PROCEDURAL BACKGROUND..................................................5III. A. Brief History of the Yocha Dehe Wintun Nation................................5 B. The Proposed Trust Acquisition. ......................................................7 C. The Regional Director Approved the Trust Acquisition. ....................9 D. The Assistant Secretary - Indian Affairs Reviewed the Evidence and Affirmed the Trust Acquisition. .................................10 STANDARD OF REVIEW ....................................................................................11IV. A. Administrative Procedure Act .........................................................11 B. Part 151 Regulations......................................................................11 C. Waiver ............................................................................................12 D. Summary Judgment .......................................................................13 ARGUMENT ........................................................................................................13V. A. Plaintiff Has Not Established Standing. ..........................................13 B. The Bureau of Indian Affairs Properly Approved the Trust Acquisition. .....................................................................................15 1. The Bureau of Indian Affairs Properly Considered the Purpose and Need for the Trust Acquisition. .......................15 2. The Bureau of Indian Affairs Properly Considered Jurisdictional Issues.............................................................20 3. The Bureau of Indian Affairs Properly Considered Land Use, And Potential Development, Issues....................24 4. The Tribe Provided All Required Information to the Bureau of Indian Affairs. ......................................................27 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 2 of 38 2:15-cv-02574-MCE-KJN - ii - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 C. The Bureau of Indian Affairs Independently Reviewed and Analyzed All Relevant Evidence.....................................................29 CONCLUSION.....................................................................................................30VI. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 3 of 38 2:15-cv-02574-MCE-KJN - iii - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 TABLE OF AUTHORITIES Cases: Page(s): Aitkin County v. Acting Midwest Regional Director, 47 IBIA 99 (2008) ...................................................................................................... 15 Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003) .......................................................................................2 Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073 (9th Cir. 2011) ................................................................................... 11 Bear Lake Watch, Inc. v. Fed. Energy Regulatory Comm’n, 324 F. 3d 1071 (9th Cir. 2003) ............................................................................ 11, 30 Brendale v. Confederated Tribes & Band of Yakima Indian Nation, 492 U.S. 408 (1989).................................................................................................. 19 Buckingham v. United States Dep’t of Agric., 603 F.3d 1070 (9th Cir. 2010) ................................................................................... 25 Buckingham v. United States Dep’t of Agric., 603 F.3d 1073 (9th Cir. 2010) ................................................................................... 12 Cactus Corner, LLC v. United States Dep’t of Agric., 346 F. Supp. 2d 1075 (E.D. Cal. 2004) ..................................................................... 12 City of Eagle Butte, South Dakota v. Great Plains Regional Director, 38 IBIA 139 (2002) .................................................................................................... 28 City of Eagle Butte v. Acting Great Plains Regional Director, 49 IBIA 75 (2009) ...................................................................................................... 15 City of Lincoln City v. United States Dep’t of Interior, 229 F.Supp.2d 1109 (D. Or. 2001).....................................................................passim City of Lincoln, Oregon v. Portland Area Director, 33 IBIA 108 (1999) .................................................................................................... 24 City of Oneida v. Salazar, 2009 U.S. Dist. LEXIS 85960 (N.D. N.Y. Sept. 21, 2009) ................................... 16, 28 City of Yreka v. Salazar, 2011 U.S. Dist. LEXIS 62818 (E.D. Cal. June 14, 2011)....................................passim Cnty. of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251 (1992)................................................................................................ 2, 3 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 4 of 38 2:15-cv-02574-MCE-KJN - iv - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Colby v. Acting Eastern Oklahoma Regional Director, 35 IBIA 139 (2000) .................................................................................................... 29 Comm. for a Better Arvin v. United States Envtl. Prot. Agency, 786 F.3d 1169 (9th Cir. 2016) ................................................................................... 12 Conn. ex rel. Blumenthal v. United States Dep’t of Interior, 228 F.3d 82 (2nd Cir. 2000) ........................................................................................5 Conservation Cong. v. United States Forest Serv., 720 F.3d 1048 (9th Cir. 2013) ................................................................................... 11 County of Charles Mix v. United States Dep’t of Interior, 799 F. Supp. 2d 1027 (D.S.D. 2011)....................................................... 16, 18, 19, 20 County of Sauk v. Midwest Regional Director, 45 IBIA 201 (2007) .................................................................................................... 15 Day County v. Aberdeen Area Director, 17 IBIA 204 (1989) .................................................................................................... 29 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004)............................................................................................ 12, 24 Eades v. Muskogee Area Director, 17 IBIA 198 (1989) .................................................................................................... 15 Fla. Power & Light v. Lorion, 470 U.S. 729 (1985).................................................................................................. 13 Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) ............................................................................... 11, 13 Jackson County v. Southern Plains Regional Director, 47 IBIA 222 (2008) .................................................................................................... 15 Karuk Tribe v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) ................................................................................... 13 Lands Council v. McNair, 629 F.3d 1070 (9th Cir. 2010) ................................................................................... 11 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............................................................................................ 13, 14 Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)....................................................................................................3 Michigan v. Bay Mills Indian Cmty., __ U.S. __, 134 S. Ct. 2024 (2014) .............................................................................2 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 5 of 38 2:15-cv-02574-MCE-KJN - v - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Morton v. Mancari, 417 U.S. 535 (1974)....................................................................................................3 Nat’l Res. Def. Council v. Envtl. Protection Agency, 638 F.3d 1183 (9th Cir. 2011) ................................................................................... 12 Occidental Eng’g Co. v. Immigration & Naturalization Serv., 753 F.2d 766 (9th Cir. 1985) ..................................................................................... 13 Pacific Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084 (9th Cir. 2012) ................................................................................... 11 Plain Feather v. Acting Billings Area Director, 18 IBIA 26 (1989) ...................................................................................................... 29 Rincon Band of Luiseno Mission Indians of the Rincon Reservation v. Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010) .....................................................................................2 River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) ................................................................................... 11 San Joaquin River Grp. Auth. v. Nat’l Marine Fisheries Serv., 819 F. Supp. 2d 1077 (E.D. Cal. 2011) ..................................................................... 13 Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975) ................................................................................. 5, 19 Shawano County v. Acting Midwest Regional Director, BIA, 53 IBIA 62 (2011) ...................................................................................................... 16 South Dakota v. United States Dep’t of Interior, 314 F.Supp.2d 935 (D.S.D. 2004)............................................................................. 20 South Dakota v. United States Dep’t of Interior, 423 F.3d 790 (8th Cir. 2005) ..............................................................................passim Summers v. Earth Island Institute, 555 U.S. 488 (2009).................................................................................................. 14 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)............................................................................................ 11, 12 Town of Verona v. Jewell, 2015 U.S. LEXIS 38100 (N.D.N.Y. Mar. 26, 2015).................................................... 20 U.S. West Cmtys. v. Wash. Utilities & Transp. Comm’n, 255 F.3d 990 (9th Cir. 2001) ..................................................................................... 12 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 6 of 38 2:15-cv-02574-MCE-KJN - vi - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Village of Ruidoso v. Albuquerque Area Director, 32 IBIA 130 (1998) .............................................................................................. 25, 26 Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519 (1978).................................................................................................. 13 Ziebach County, South Dakota v. Great Plains Regional Director, 36 IBIA 201 (2001) .................................................................................................... 28 Statutes 5 U.S.C. § 301 ..................................................................................................................4 5 U.S. C. §§ 701-06........................................................................................................ 11 5 U.S.C. § 706(2)............................................................................................................ 11 25 U.S.C. § 2 ....................................................................................................................4 25 U.S.C. § 9 ....................................................................................................................4 25 U.S.C. § 465 ................................................................................................................3 25 U.S.C. §§ 2701, et seq. ...............................................................................................6 25 U.S.C. § 5108 .............................................................................................. 3, 5, 18, 28 42 U.S.C. §§ 4321, et seq. ...............................................................................................9 Cal. Gov. Code §§ 51200, et seq. ....................................................................................7 General Allotment Act of 1887 (28 Stat. 388) ...................................................................2 Regulations 25 C.F.R § 2.20 .............................................................................................................. 10 25 C.F.R. § 151.3(a)(3)................................................................................... 4, 18, 19, 28 25 C.F.R. § 151.9 .............................................................................................................4 25 C.F.R. § 151.10 ............................................................................................... 4, 15, 29 25 C.F.R. § 151.10(a).......................................................................................................4 25 C.F.R. § 151.10(b)................................................................................................. 4, 15 25 C.F.R. § 151.10(c) .......................................................................................................4 25 C.F.R. § 151.10(e).......................................................................................................4 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 7 of 38 2:15-cv-02574-MCE-KJN - vii - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 25 C.F.R. § 151.10(f) ............................................................................................ 4, 20, 24 25 C.F.R. § 151.10(g) .......................................................................................................5 25 C.F.R. § 151.13 ......................................................................................................... 27 Other Authorities 81 Fed.Reg. 26826, 26830............................................................................................. 27 Bruce Flushman and Joe Barbieri, Aboriginal Title: The Special Case of California, 17 Pac. L. J. 391, 397-415 (1986)..............................................................2 Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, 72 (2012 ed.) ............... 2, 3, 6 U.S. Sen. Rep. 103-340 (Aug. 18, 1994)..........................................................................2 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 8 of 38 2:15-cv-02574-MCE-KJN - 1 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 INTRODUCTIONI. Plaintiff Capay Valley Coalition claims the Bureau of Indian Affairs (“BIA” ) cannot acquire land in trust for the benefit of the Yocha Dehe Wintun Nation (the “Tribe” or “Yocha Dehe”) unless the Tribe will develop the entire property, the Tribe will not use any other property, and the Tribe’s use of the property creates no possibility of jurisdictional conflict with other governments. That is not the law. Section 5 of the Indian Reorganization Act (the “IRA”) broadly and explicitly authorizes the acquisition of any property in trust for the general purpose of “providing land to Indians.” The regulations implementing Section 5 confirm the BIA’s broad discretion to acquire property in trust for Indian tribes whenever such acquisition will facilitate tribal self-determination, economic development, and/or housing. The federal courts have unanimously rejected Plaintiff’s cramped, counter-textual interpretation of Section 5 and its implementing regulations. Under settled law, Defendants are entitled to summary judgment. Plaintiff's argument is not only contrary to law, but it lacks logic and consistency. Talking out of both sides of its mouth, Plaintiff first argues the BIA cannot take all of the requested 853 acres into trust because the Tribe does not plan to develop it all. Plaintiff's Memorandum of Points and Authorities in Support of Motion for Summary Judgment ("Pl. Mem.") (Doc. 17-1) at 9-11. Plaintiff then argues the BIA erred by deciding to take all of the acreage into trust because the Tribe will likely develop it. Id., at 13. Nothing but speculation, and certainly not the factual record, supports Plaintiff's theory that the Tribe will commercially develop all of the property now placed in trust. And no legal authority requires the Tribe do so in any event, as a condition to the BIA's ability to add agricultural parcels to Yocha Dehe's sovereign land base. Plaintiff compounds its legal errors and logical inconsistencies by failing to establish that it has standing. Contrary to clear direction from the Supreme Court, Plaintiff presents no evidence establishing an imminent or actual injury-in-fact, a causal link between that injury and the BIA’s decision to acquire land in trust for the Tribe, or a likelihood that such injury would be redressed by a favorable decision of this Court. For Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 9 of 38 2:15-cv-02574-MCE-KJN - 2 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 this reason, too, Defendants are entitled to summary judgment. STATUTORY AND REGULATORY BACKGROUNDII. The Indian Reorganization ActA. Before the IRA’s enactment, federal policy toward Indian tribes focused on removing tribes from their aboriginal lands, forcing assimilation of individual Indians into mainstream society, and actively suppressing tribal identity and culture. Most California Indians were enslaved or killed, often as a result of so-called “hunting parties” carried out by fortune-seekers trying to displace tribes from their aboriginal lands. See U.S. Sen. Rep. 103-340 (Aug. 18, 1994) at 2 (enslavement and “hunting parties” ); Bruce Flushman and Joe Barbieri, Aboriginal Title: The Special Case of California, 17 Pac. L. J. 391, 397- 415 (1986) (California Indian population reduced from more than 300,000 to approximately 17,000).1 As non-Indian migration continued westward, so too did the United States’efforts to open up Indian lands to non-Indian settlers. See Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, 72 (2012 ed.) (hereinafter, “Cohen’s Handbook” ).2 For example, the General Allotment Act of 1887, 28 Stat. 388, provided a mechanism by which communal tribal lands could be “allotted” to individuals and pass out of Indian ownership. Id.; see also Cnty. of Yakima v. Confederated Tribes and Bands of Yakima Indian 1 A report of the United States Senate Committee on Indian Affairs described these widespread “hunting parties” in chilling fashion: During the Gold Rush period … California Indian tribes were viewed as obstacles to settlement. California Indians were enslaved, starved, and targeted for elimination. They were the objects of Sunday hunting parties, stalked and killed as big game roaming the forests of Northern California. U.S. Sen. Rep. 103-340 (Aug. 18, 1994) at 2. 2 Cohen’s Handbook of Federal Indian Law is the most authoritative guide to the history of Indian law, and it has been recognized and relied on as such by the United States Supreme Court and the Ninth Circuit, among others. See, e.g., Michigan v. Bay Mills Indian Cmty., __ U.S. __, 134 S. Ct. 2024, 2043 (2014); Rincon Band of Luiseno Mission Indians of the Rincon Reservation v. Schwarzenegger, 602 F.3d 1019, 1060-61, 1063 (9th Cir. 2010); Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 729 (9th Cir. 2003). Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 10 of 38 2:15-cv-02574-MCE-KJN - 3 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Nation, 502 U.S. 251, 254 (1992). The purpose of this “allotment” policy was to “extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large.” Cnty. of Yakima, 502 U.S. at 254. The results were devastating for Indian tribes: Between 1887 and 1933, the “allotment” policy led to the loss of roughly 72% of all tribal land in the United States - an area equal to approximately 100 million acres. Cohen’s Handbook at 73-74. Congress enacted the IRA in 1934 to repudiate and remedy the disastrous consequences of the “allotment” policy. The Act was designed to “revitalize” tribal self- government and support tribal self-sufficiency by “put[ting] a halt to the loss of tribal lands.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151-52 (1973); see also Morton v. Mancari, 417 U.S. 535, 542 (1974) (IRA intended to permit “a greater degree of self- government, both politically and economically” ). Thus, the IRA represented a fundamental shift in federal policy from one of forced assimilation to one “encourag[ing] economic development, self-determination, cultural plurality, and the revival of tribalism” through the preservation and restoration of tribal lands. Cohen’s Handbook at 81. Central to this shift was Section 5 of the IRA, which authorizes the Secretary of the Interior to acquire and hold land in trust for Indian tribes: [t]he Secretary of the Interior is hereby authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment any interest in land, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing lands to Indians. 25 U.S.C. § 5108.3 Consistent with the overarching purposes of the IRA, Section 5’s grant of land acquisition authority is extremely broad: It does not restrict the type or location of property that can be acquired for Indian tribes; it does not require tribes to meet any economic prerequisites; and it does not impose any restrictions on tribal use of acquired lands. 3 Formerly codified at 25 U.S.C. § 465. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 11 of 38 2:15-cv-02574-MCE-KJN - 4 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 The Part 151 RegulationsB. Congress has delegated to the Secretary of the Interior authority to promulgate regulations “carrying into effect the various provisions of any act relating to Indian affairs.” 25 U.S.C. § 9; see also 25 U.S.C. § 2 (Secretary manages all Indian affairs); 5 U.S.C. § 301 (authority to prescribe regulations). Pursuant to this authority, the Secretary issued regulations governing the trust acquisition process under Section 5 of the IRA. These regulations are published in part 151 of title 25 of the Code of Federal Regulations, and are commonly referenced as the “Part 151 Regulations.” Consistent with the IRA’s overall goals, the Part 151 Regulations are designed to implement the Secretary’s broad authority to acquire land in trust for Indian tribes whenever such acquisition “is necessary to facilitate” the general objectives of “tribal self-determination, economic development, or Indian housing.” 25 C.F.R. § 151.3(a)(3). Like Section 5 of the IRA, the Part 151 Regulations do not restrict the type or location of property the United States can acquire for Indian tribes; do not require tribes to meet any economic prerequisites; and do not require tribal land use to be consistent with state and local requirements. Nor must a tribal request for trust acquisition take any specific form or format. See 25 C.F.R. § 151.9 (“The request need not be in any special form… ”). The Part 151 Regulations do address certain procedural requirements governing the Secretary’s consideration of a tribal request for trust acquisition. For example, Part 151 requires the Secretary to solicit comments from state and local governments regarding “potential impacts [of the acquisition] on regulatory jurisdiction, real property taxes and special assessments.” 25 C.F.R. § 151.10. The Part 151 Regulations also require that the Secretary carefully consider the statutory authority for the proposed acquisition (25 C.F.R. § 151.10(a)); the need of the tribe for additional trust land (25 C.F.R. § 151.10(b)); the purposes for which the land will be used (25 C.F.R. § 151.10(c)); the impact on state and local governments resulting from removal of the land from tax rolls (25 C.F.R. § 151.10(e)); potential jurisdictional problems and conflicts of land use which may arise from the acquisition (25 C.F.R. § 151.10(f)); and, the BIA’s Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 12 of 38 2:15-cv-02574-MCE-KJN - 5 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 ability to discharge the additional responsibilities resulting from the acquisition (25 C.F.R. § 151.10(g)). Although each of these items must be considered during the Secretary’s decision-making process, none serve as a substantive limitation or prohibition on the acquisition of land in trust for an Indian tribe. The Legal Effect of Trust AcquisitionC. Title to land acquired for Indians pursuant to Section 5 of the IRA and the Part 151 Regulations is “taken in the name of the United States in trust for the Indian tribe.” 25 USC § 5108. A tribe cannot exercise sovereign jurisdiction over a property - even a property owned in fee simple by the tribal government - unless and until that property is acquired in trust for the tribe by the United States. See, e.g., Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 658, 667 (9th Cir. 1975) (lands acquired in trust under IRA are within tribal jurisdiction, free from state regulation and control). Once the land moves from fee to federal trust ownership, it is no longer subject to state or local taxation, zoning, or civil jurisdiction. 25 U.S.C. §5108; Conn. ex rel. Blumenthal v. United States Dep’t of Interior, 228 F.3d 82, 85-86 (2nd Cir. 2000). Thus, the “fee-to- trust” process furthers the IRA’s mandate to “conserve and develop Indian lands and resources” and promote tribal self-determination. See, e.g., City of Yreka v. Salazar, 2011 U.S. Dist. LEXIS 62818, at *15 (E.D. Cal. June 14, 2011) (recognizing that “Congress believed that additional land was essential for the economic advancement and self-support of Indian communities” ). FACTUAL AND PROCEDURAL BACKGROUNDIII. Brief History of the Yocha Dehe Wintun Nation.A. The Yocha Dehe Wintun Nation is a federally recognized tribal government whose ancestral lands include California’s Capay Valley - northwest of the City of Sacramento in Yolo County - as well as portions of modern-day Yolo, Solano, Colusa, Sutter, Lake and Napa counties. AR 73:2075, 2143; see also Tribe's Motion To Intervene (Doc. 4-1) at 1:16-19. For more than 200 years the Tribe has fought to maintain a homeland to support its population and continue its culture and traditions. See, e.g., AR 73:2144-45 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 13 of 38 2:15-cv-02574-MCE-KJN - 6 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 (mission system, military campaigns, and rancho land grants resulted in loss of tribal lands). It has been anything but easy. The discovery of gold in California in the mid-1800s turned westward migration into a “stampede” , and non-Indian settlers quickly commandeered California Indian lands. Cohen’s Handbook, 58. The United States sought to regularize these unauthorized land claims by negotiating treaties whereby California tribes would surrender vast amounts of land in exchange for "protection" on small plots elsewhere. Id. While California tribes honored these treaties, the United States did not; once non- tribal parties had secured the land they needed, Congress refused to ratify the treaties, leaving Indian tribes and their members homeless throughout the state. Id. In 1908, as part of a belated effort to address the widespread homelessness of California Indians, the United States established a small "rancheria" for Yocha Dehe in a remote corner of northwestern Yolo County and forced the Tribe to relocate there. AR 73:2146. The original rancheria lacked enough water for agricultural production, however, and in 1940 the Tribe won relocation to another small parcel, one further south in the Capay Valley. AR 73:2146. For many years, this small, remote land base limited the Tribe to modest farming activities. See Declaration of Leland Kinter In Support Of Motion To Intervene (Doc. 4-8) (“Kinter Decl.” ), at ¶ 5. As a result, during this time the Tribe and its citizens were forced to heavily rely on government assistance programs for survival. See, e.g., AR 118:4181 (Yocha Dehe citizens forced to reside in “HUD homes”). In the late-1980s, after the enactment of the Indian Gaming Regulatory Act (25 U.S.C. §§ 2701, et seq.), the Tribe pursued economic development through casino gaming. See AR 118:4257. Revenues from its gaming enterprise have allowed the Tribe to re-acquire a small portion of the ancestral lands it lost in the 1800 and 1900s. See Kinter Decl. at ¶ 6 (gaming has allowed Tribe “to begin re-establishing a land base… ”). Even though the United States’policies are largely to blame for the Tribe’s loss of land, Yocha Dehe must use its own funds to re-acquire property within its Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 14 of 38 2:15-cv-02574-MCE-KJN - 7 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 ancestral territory. See, e.g., AR 75:3043-74 (deeds resulting from Tribe’s purchase of subject lands from private landowners). While the Tribe’s gaming enterprise has thrived, Yocha Dehe also pursues other economic development efforts to diversify its economy, support its government, and help ensure its continued self-sufficiency. To this end, the Tribe has purchased several parcels of land next to its existing sovereign territory where it engages in agricultural production that is consistent with the agricultural uses of its non-Tribal neighbors. See, e.g., AR 118:4178 (diversifying economic base part of reason for trust acquisition). This includes the 853± acres of land at issue here. The Tribe also plans to develop a new community there, to house a growing population that lives on a rancheria next to a busy public highway in a flood plain. As Plaintiff rightly notes (Pl. Mem. (Doc. 17-1) at 2:6-8), the Tribe's existing land base is fully developed, for residential, governmental and commercial purposes, and without the trust acquisition, Yocha Dehe soon will have no ability to house its citizens. The Proposed Trust Acquisition.B. On June 20, 2011, the Tribe applied to the Pacific Regional Director, Bureau of Indian Affairs (the “BIA” ), to approve the trust acquisition of 853± acres (sixteen separate assessor parcels) (the “Property” ) that the Tribe had purchased and owned in fee (the “Application” ). AR 75:3003-3428. Located in the Capay Valley, the Property lies contiguous to the Tribe’s existing trust lands at its northern, western and southern boundaries, divided from the Tribe’s existing residential and governmental community by a state highway. AR 75:3014. At the time of the Application’s submission, the Property contained five single-family homes, but the vast majority of the Property was used for agricultural production. AR 75:3015.4 4 Several of the parcels were subject to use restrictions under the California Land Conservation Act (Cal. Gov. Code §§ 51200, et seq.) (“Williamson Act” ) when the Application was submitted. This state law, also known as the Williamson Act, enables landowners to reduce tax payments in exchange for maintaining the agricultural character of fee land. Before submitting the Application to the BIA, the Tribe had already filed notices starting the 10-year winding-down, or non-renewal, period for the Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 15 of 38 2:15-cv-02574-MCE-KJN - 8 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 As the Tribe there explained, the central purposes of the requested trust acquisition were to allow the Tribe to:  Develop 25 residential housing units for Tribal citizens and a new Tribal school (affecting 85± acres);  Develop a cultural education center, outdoor cultural activity center and, at some point in the future, a third cultural/educational facility (affecting 6± acres);  Develop a wastewater treatment system to service Tribal housing and governmental facilities (affecting 8± acres); and,  Continue the Tribe’s agricultural production activities (amounting to 754± acres - 88% of the overall property). AR 75:3017-19. In the Application, Yocha Dehe emphasized its goals to restore its ancestral land base, help create a “buffer zone” for the new residential community, since the current housing community sits adjacent a public highway (see AR 73:2080, 2087, 2100 (EA maps showing existing and planned communities)), provide governmental services to its citizens, and exercise its sovereign jurisdiction to ensure the continued rural character of the land and protect it for future generations. AR 75:3016-17. The Property had the added benefit of being outside the flood plain in which the Tribe's people currently live. AR 73:2074. Consistent with the IRA and the Part 151 Regulations, the BIA carefully reviewed the Application, conducted multiple inspections of the Property, addressed realty considerations (e.g., title, legal land description, tax, and solicitor reviews), and invited Williamson Act restrictions. The winding-down period will expire in 2019. AR 75:3015. Consistent with the BIA’s condition to taking such parcels into trust, the Tribe made clear that it would comply with the use restrictions for the duration of the non-renewal period, even after the land was acquired in trust, and even for those parcels slated for development. AR 75:3015, 3038-39. This commitment does not mean the Tribe intends to develop other agricultural lands within the trust acquisition that are not slated for development, even after the non-renewal period expires, as Plaintiff argues. Pl. Mem. (Doc. 17-1) at 3:27-4:2. This is merely a procedural requirement imposed by BIA with respect to which the Tribe fully intends to comply. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 16 of 38 2:15-cv-02574-MCE-KJN - 9 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 and considered public comments. See AR 98:3959-73 (site assessment); AR 99:3974- 100:3986 (site inspection and notes); AR 101:3987-91 (legal land description verification); AR 104:4037-51 (property tax statements); AR 105:4052-78 (notice of application); AR 108:4086-118:4297 (comment letters, responses, and related correspondence). The BIA also evaluated the potential environmental consequences of the proposed trust acquisition, as the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. (“NEPA”) and the Part 151 Regulations require. Specifically, the BIA supervised the preparation of an Environmental Assessment (the “EA”) addressing the purpose and need for the proposed acquisition, the existing environment surrounding the Property, the potential consequences of the acquisition, and, where warranted, mitigation measures to minimize those consequences. See AR 73:2064-74:3002 (EA & appendices). The BIA circulated the EA for public review and comment, carefully considered and responded to all comments received, and revised the EA accordingly. See AR 32:568-605 (comments); 32:606-51 (responses); 73:2064-74:3002 (EA & appendices). Based on all of this evidence, the agency concluded that acquiring the Property in trust for the Tribe would not significantly impact the environment and it issued a “Finding of No Significant Impact” (the “FONSI” ). See AR 32:532-659 (FONSI, including public comments and responses thereto). The Regional Director Approved the Trust Acquisition.C. On April 28, 2014, the BIA issued its Notice of Decision (the “Decision” ), approving the Application. AR 126:4348-4380. The Decision:  Provided a legal land description for the Property, putting the public on notice of the lands to be acquired in trust for the Tribe (AR 126:4348-54);  Set forth the statutory authority - the IRA - for the acquisition (AR 126:4355);  Addressed comments on the Application, and the Tribe’s responses thereto (AR 126:4356-65); and, Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 17 of 38 2:15-cv-02574-MCE-KJN - 10 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0  Addressed each of the required considerations under Part 151 including need, proposed use, impact on tax base, jurisdictional concerns, BIA ability to discharge additional responsibilities, and NEPA compliance (AR 126:4365-70). On May 28, 2014, Plaintiff filed an administrative appeal from the Decision with the Interior Board of Indian Appeals (the “IBIA” ). AR 127:4381-4425. The Assistant Secretary - Indian Affairs Reviewed the EvidenceD. and Affirmed the Trust Acquisition. On June 14, 2014, pursuant to his authority under 25 C.F.R § 2.20 and departmental policy, the Assistant Secretary - Indian Affairs (the “Assistant Secretary” ) assumed jurisdiction over Plaintiff’s administrative appeal. AR 130:4436-38. A briefing schedule was issued (AR 133:4452-53), and by February 19, 2015, all briefing was submitted and before the Assistant Secretary for consideration. AR 136:4458-83 (Plaintiff opening brief); 137:4484:4516 (Tribe’s response); 138:4517-35 (Plaintiff’s reply). On August 14, 2015, the Assistant Secretary issued his decision. AR 141:4609- 24. In reviewing the Decision, the Assistant Secretary explained that he was effectively stepping into the shoes of the IBIA, reviewing the Decision “to determine whether the BIA gave proper consideration to all legal prerequisites to exercise the BIA’s discretionary authority to take land into trust.” AR 141:4614. His decision addressed, in detail, each of Plaintiff’s arguments raised in its administrative appeal. See AR 141:4615-23 (addressing arguments relating to need, jurisdictional impacts, land use impacts, and environmental impacts). In the end, the Assistant Secretary concluded the Decision “was reasonable and supported by the record” and, accordingly, affirmed the Decision. AR 141:4609, 4623. Plaintiff did not immediately challenge the Assistant Secretary’s decision nor seek to enjoin the acquisition of the Property in trust. Accordingly, the BIA formally acquired the Property in trust for the Tribe on September 15, 2015. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 18 of 38 2:15-cv-02574-MCE-KJN - 11 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 STANDARD OF REVIEWIV. Administrative Procedure ActA. Plaintiff alleges the BIA’s decision to acquire the Property in trust for the benefit of the Tribe violated the Administrative Procedure Act (“APA”), 5 U.S. C. §§ 701-06. See Complaint (Doc. 1) at ¶ 39-43. Under the APA, agency action must be upheld unless it is arbitrary and capricious. City of Yreka, 2011 U.S. Dist. LEXIS 62818, at *15; 5 U.S.C. § 706(2). The arbitrary and capricious standard is narrow, and courts may not substitute their judgment for that of the agency. River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010); Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010). Instead, judicial review is “highly-deferential, presuming the agency action to be valid and affirming the [agency’s] action if a reasonable basis exists.” Pacific Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1091 (9th Cir. 2012); see also Conservation Cong. v. United States Forest Serv., 720 F.3d 1048, 1057-58 (9th Cir. 2013). A reasonable basis for upholding agency action exists so long as the decision- maker has relied on “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bear Lake Watch, Inc. v. Fed. Energy Regulatory Comm’n, 324 F. 3d 1071, 1076 (9th Cir. 2003). Agency findings must be upheld even if “the evidence is susceptible to more than one rational interpretation.” Id. Part 151 RegulationsB. In particular, Plaintiff claims the BIA has violated the APA by taking an action prohibited by the Part 151 Regulations (see supra Part II.B). When evaluating regulatory requirements, the courts are required to give “substantial deference” to an agency’s interpretation of its own regulations. Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073, 1079 (9th Cir. 2011); see also Great Basin Mine Watch v. Hankins, 456 F.3d 955, 974 (9th Cir. 2006). Indeed, the Supreme Court has mandated that an agency’s construction of its own regulations “must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 19 of 38 2:15-cv-02574-MCE-KJN - 12 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 (1994); see also Comm. for a Better Arvin v. United States Envtl. Prot. Agency, 786 F.3d 1169, 1175 (9th Cir. 2016) (same). A reviewing court’s task “is not to decide which among several competing interpretations best serves the regulatory purpose” but rather to “defer to the agency’s interpretation unless an alternative reading is compelled by the regulation’s plain language or by other indications of the [agency’s] intent at the time of the regulation’s promulgation.” Shalala, 512 U.S. at 512; see also Nat’l Res. Def. Council v. Envtl. Protection Agency, 638 F.3d 1183, 1191 (9th Cir. 2011) (same). Such deference is particularly warranted where, as here, the regulation is one in which “identification and classification of relevant criteria necessarily require significant expertise and entails the exercise of judgment grounded in policy concerns.” U.S. West Cmtys. v. Wash. Utilities & Transp. Comm’n, 255 F.3d 990, 997 (9th Cir. 2001); see also Cactus Corner, LLC v. United States Dep’t of Agric., 346 F. Supp. 2d 1075, 1111 (E.D. Cal. 2004) (deference especially appropriate in complex situations implicating areas of particular agency expertise). WaiverC. The APA mandates that parties opposed to a proposed agency action must structure their participation in the administrative process so that it “alerts the agency to the parties’position and contentions, in order to allow the agency to give the issue meaningful consideration.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (internal quotations omitted). Any argument not raised by a party during the administrative process is deemed forfeited. Id.; see also Buckingham v. United States Dep’t of Agric., 603 F.3d 1073, 1080-81 (9th Cir. 2010). The purpose of this rule is to allow the agency “to exercise its expertise over the subject matter … and to permit [it] an opportunity to correct any mistakes … thus avoiding unnecessary or premature judicial intervention into the administrative process.” Id. at 1080. Thus, to avoid waiver of its claims a party must raise objections “with sufficient clarity to allow the decision maker to understand and rule on the issue raised.” Id. (quoting Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F. 3d 957, 965 (9th Cir. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 20 of 38 2:15-cv-02574-MCE-KJN - 13 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 2002)); see also Great Basin Mine Watch, 456 F.3d at 968 (same) This requirement is strictly enforced. As the Supreme Court has admonished, “administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure references to matters that ‘ought to be’ considered and then … seeking to have that agency determination vacated on the ground that the agency failed to consider matters ‘forcefully presented.’” Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553-54 (1978); see also Great Basin Mine Watch, 456 F.3d at 967. Summary JudgmentD. APA claims are decided on a fixed administrative record, consisting of the facts before the agency when its decision was made, without discovery or trial. See, e.g., Fla. Power & Light v. Lorion, 470 U.S. 729, 743-44 (1985). For that reason, it is customary and appropriate to decide APA cases on summary judgment. See Karuk Tribe v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012). In this context, the courts determine whether, as a matter of law, the administrative record supports the agency decision in light of the deferential standards of review set forth above. Occidental Eng’g Co. v. Immigration & Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985); see also San Joaquin River Grp. Auth. v. Nat’l Marine Fisheries Serv., 819 F. Supp. 2d 1077, 1083-84 (E.D. Cal. 2011) (in APA cases, summary judgment is determined by the administrative record and the “arbitrary and capricious” standard, not by a traditional Rule 56 inquiry). ARGUMENTV. Plaintiff Has Not Established Standing.A. Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III” of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a plaintiff must demonstrate that (i) it will suffer an injury in fact which is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical” ; (ii) “there is a causal connection between the injury and the conduct complained of” such that the injury is “fairly traceable to the challenged action of Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 21 of 38 2:15-cv-02574-MCE-KJN - 14 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 the defendant” and not the result of “the independent action of some third party not before the court” ; and (iii) it is “likely. . .the injury will be redressed by a favorable decision.” Id. In cases involving the legality of government action, the nature and extent of the showing necessary to establish standing “depends considerably upon whether the plaintiff is himself an object of the action… at issue.” Id., at 562. Where, as here, the plaintiff is not the object of the challenged government action, standing is “substantially more difficult to establish.” Summers v. Earth Island Institute, 555 U.S. 488, 493-94 (2009); Lujan, 504 U.S. at 562. Moreover, because the elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case,” standing must be established with greater specificity at successive stages of litigation. Lujan, 504 U.S. at 561. At the summary judgment stage, a plaintiff must “set forth by affidavit or other evidence specific facts” demonstrating its standing. Id. Plaintiff has made no effort to meet these requirements. It submits no declarations or affidavits at all, let alone any bearing on standing. See Pl. Notice and Motion and Mem. (Doc. 17, 17-1). Its Motion for Summary Judgment identifies no “specific facts” relevant to standing. Id. And Plaintiff makes no effort to explain or excuse either of those failures. Id. Indeed, it appears Plaintiff’s sole written representation directly addressing the issue of standing is the following conclusory passage from its Complaint: “CVC is composed of persons whose economic, personal, aesthetic, and property interests will be severely injured if the approval of the trust application is not set aside pending full compliance with the Administrative Procedure Act.” Doc. 1 at 2:16-19. Vague, unsupported representations of this sort are simply not adequate to establish standing at this stage of the proceedings. Lujan, 504 U.S. at 561-63. For this reason alone, the Tribe is entitled to summary judgment. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 22 of 38 2:15-cv-02574-MCE-KJN - 15 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 The Bureau of Indian Affairs Properly Approved the TrustB. Acquisition. In evaluating a tribe’s request to acquire land in trust for its sovereign benefit, the BIA’s established practice is to analyze the factors set forth in 25 C.F.R. § 151.10 (see supra Part IV.B), and proof that the BIA considered these factors must be evident from the administrative record. See, e.g., City of Eagle Butte v. Acting Great Plains Regional Director, 49 IBIA 75, 80 (2009). The agency has consistently maintained that these factors need not be weighed or balanced in any particular way or exhaustively analyzed, or that any particular conclusion must be reached. See, e.g., id.; see also Eades v. Muskogee Area Director, 17 IBIA 198, 202 (1989); Jackson County v. Southern Plains Regional Director, 47 IBIA 222, 231 (2008); Aitkin County v. Acting Midwest Regional Director, 47 IBIA 99, 104 (2008); County of Sauk v. Midwest Regional Director, 45 IBIA 201, 206-207 (2007). Here, the BIA did just that, as the administrative record and Decision readily reflect that the BIA properly considered the criteria required under § 151.10. Indeed, it is abundantly clear that IRA’s broad goals (i.e., reversing the effects of the United States’ assimilation policies, and facilitating tribal self-determination and economic development) are served by the Property’s acquisition in trust for the Tribe’s use and benefit. That Plaintiff disagrees with the BIA’s analysis and conclusions in this regard does not entitle it to summary judgment, as detailed below. 1. The Bureau of Indian Affairs Properly Considered the Purpose and Need for the Trust Acquisition. The Part 151 Regulations require the BIA to consider the “need of the… tribe for additional land.” 25 C.F.R. § 151.10(b). In considering a tribe’s needs, the BIA is only required to determine whether the IRA’s broad, general purposes - political self- government, economic self-sufficiency, and the restoration of tribal land bases - are served by the acquisition of additional land. South Dakota v. United States Dep’t of Interior, 423 F.3d 790, 801 (8th Cir. 2005). Needs such as self-determination, Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 23 of 38 2:15-cv-02574-MCE-KJN - 16 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 jurisdiction, economic growth, housing development, and cultural and social preservation have consistently been held to satisfy the requirements of Part 151. See, e.g., City of Yreka, 2011 U.S. Dist. LEXIS 62818, at *22 (cultural and social preservation, economic growth, self-sufficiency, and the exercise of tribal sovereignty); City of Oneida v. Salazar, 2009 U.S. Dist. LEXIS 85960, at *13-14(N.D. N.Y. Sept. 21, 2009) (economic development); South Dakota, 423 F. 3d at 801 (tribal self-sufficiency and economic growth). The Part 151 Regulations provide the BIA with broad discretion to evaluate a tribe’s need for land. The agency is not required to provide an acre-by-acre justification for each proposed acquisition. South Dakota, 423 F.3d at 801 (detailed, acre-by-acre explanation of the benefits of acquisition “would be an unreasonable interpretation” of Part 151); Shawano County v. Acting Midwest Regional Director, BIA, 53 IBIA 62, 78 (2011) (tribe was “not required to… justify, acre-by-acre, the need for trust status.” ). Nor must the agency find that additional land is essential to the tribe’s economic or political survival. City of Yreka, 2011 U.S. Dist. LEXIS 62818,at *21-22. Rather, the Part 151 Regulations “require only that the BIA’s analysis express the Tribe’s needs and conclude generally that IRA purposes were served.” County of Charles Mix v. United States Dep’t of Interior , 799 F. Supp. 2d 1027, 1045 (D.S.D. 2011) (internal quotations omitted). Here, the administrative record clearly shows the BIA carefully considered the Tribe’s need for the Property, consistent with the Part 151 Regulations. Among other things, the agency reviewed evidence of the Tribe’s need to provide housing for its growing population (AR 32:580, 598, 614; 73:2074, 2078; 75:3018; 112:4097; 114:4116; 118:4170-71, 4177); the Tribe’s need for expanded governmental, educational and cultural facilities and services (AR 32:534-35, 594, 598, 614, 620, 634, 644-46; AR 73:2074, 2078; 75:3018-19); the Tribe’s need for infrastructure, including a modern wastewater treatment and recycling plant (AR 32:532-36, 582, 594, 622, 642; 73:2074, 2078, 2081-82; 74:2434-2513; 75:3018-19); the Tribe’s need for land for continued agricultural production as part of a diverse Tribal economy (AR 32:532-36, 580, 588, Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 24 of 38 2:15-cv-02574-MCE-KJN - 17 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 594, 598, 614-618, 628-630, 642, 648; 73:2074, 2078; 75:3017, 3019; 112:4097-98; 115:4116; 118:4171, 4176, 4178-79); and, perhaps most importantly, the importance of exercising full sovereign jurisdiction over the land - which can only be achieved if the Property is held in trust (AR 32:532-36, 580, 586, 592, 614, 618, 634, 642; 73:2074,; 75:3017-19; 112:4097-99; 115:4116; 118:4171, 4177-80). After reviewing all of the evidence, the Regional Director concluded that acquiring the Property in trust would help meet the Tribe’s needs and serve the purposes of the IRA. Specifically, she determined that:  Acquiring the Property in trust was “essential” to the Tribe’s “ongoing efforts to restore its ancestral land base” (AR 126:4365);  Placing the Property in trust for the Tribe would help create a buffer zone between the Tribal community and surrounding areas, providing Tribal members greater personal security and privacy AR 126:4365;  The acquisition was “necessary in order for the Tribe to exercise its sovereign jurisdiction over the land” AR 126:4365;  Acquiring the Property in trust for the Tribe would “provide much needed space for expansion and growth of the Tribe,” as there would otherwise be “inadequate space… to accommodate the rising housing needs of [the Tribe’s] growing population” (AR 126:4365-66);  Acquiring the property would permit replacement of an “insufficient” septic system with a modern wastewater treatment and recycling facility, and would provide recycled water for agricultural purposes (AR 126:4366); and  Placing the Property in trust for the Tribe would help “protect the environment and preserve the [Tribe] and its lands” AR 126:4366. After careful review, the Assistant Secretary concluded the record supported each of the Regional Director’s findings, and that those findings complied with the Part 151 Regulations. AR 141:4616-18. Ignoring overwhelming record evidence, Plaintiff claims in this lawsuit that the BIA Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 25 of 38 2:15-cv-02574-MCE-KJN - 18 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 never fully addressed the extent of the Tribe’s need for land. Pl. Mem. (Doc. 17-1) at 9- 14. The claim consists of three separate theories, none of which withstands scrutiny. First, Plaintiff theorizes the BIA cannot justify acquiring the entire Property (853± acres) because the Tribe plans to develop only part of it. Id. at 10-11. The argument reveals Plaintiff’s fundamental misunderstanding of the law. No statute, regulation, court decision, or other legal authority requires tribal governments to develop all of the land targeted for trust acquisition as a condition for same. To the contrary, controlling authority clearly provide that other purposes - including the general IRA objectives of self-determination, self-sufficiency, and the restoration of a tribal land base - justify the BIA’s acquisition of land in trust for an Indian tribe. See, e.g., 25 U.S.C. § 5108 (IRA); 25 C.F.R. § 151.3(a)(3) (explicitly authorizing land acquisition for purposes of self- determination); S. Dakota, 423 F.3d at 801 (upholding 91-acre property acquisition where Tribe’s only development plan was “a circle of teepees to represent the seven Sioux tribes located in South Dakota” ); County of Charles Mix, 799 F. Supp. 2d at 1045 (Part 151 Regulations “require only that the BIA’s analysis express the Tribe’s needs and conclude generally that IRA purposes were served.” ). Plaintiff’s position also contradicts the administrative record. The record shows that the Tribe established - and the BIA considered - a strong Tribal need for the Property that goes beyond the 99 acres to be developed. See, e.g., AR 73:2074 (EA noting need for full Tribal governance over land); 75:3016-17 (Application noting need relating to sovereign jurisdiction, and buffer zone); 112:4097 and 114:4115 (county and Plaintiff’s comments on non-development acres); 118:4171, 4176-80 (responses to comments). On the basis of this evidence, the Regional Director appropriately concluded that acquisition of the entire Property in trust for the Tribe would help restore the Tribe’s ancestral land base, allow the Tribe to exercise its sovereign jurisdiction, and permit the Tribe to develop a diverse economy that includes agricultural activity. AR Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 26 of 38 2:15-cv-02574-MCE-KJN - 19 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 126:4365. The Assistant Secretary affirmed each of these findings.5 AR 141:4618. This was more than enough to satisfy Part 151. 25 C.F.R. § 151.3(a)(3); S. Dakota, 423 F.3d at 801; County of Charles Mix, 799 F. Supp. 2d at 1045. Plaintiff’s second theory is that BIA failed to consider whether the Tribe needs the entire 853± acres to be held in federal trust. Pl. Mem. (Doc. 17-1) at 11-12. In Plaintiff’s view, the Tribe can exercise “full governance” over the Property even if the land is held in fee simple ownership. Id. at 10. This argument fails on multiple levels. Contrary to argument, the Tribe does not have “full governance” over land owned in fee; such land is generally subject to regulatory control and taxation by local and state governments.6 See Brendale, 492 U.S. at 430. Part 151 did not require the BIA to undertake an acre- by-acre analysis of whether the Tribe required the Property to be held in trust (rather than fee) status. S. Dakota, 423 F.3d at 801; see also AR 141:4616 (collecting IBIA precedent). And, although not required to do so, the BIA did consider evidence showing the Tribe’s needs require the Property to be held in federal trust status. See, e.g., AR 73:2074, 75:3016-17, 118:4171, 4177-79 (tribal governance and jurisdiction over Property); AR 118:4178 (trust status would prevent construction of a county-approved residential subdivision within the Tribe’s agricultural lands); AR 118:4179 (trust status would allow culturally-important hunting activities). Plaintiff’s third theory challenges the agency’s conclusion that the Property's trust acquisition would "help create a buffer zone that gives the new residential community 5 Plaintiff stubbornly maintains that the Regional Director’s decision “fails to state why” trust status is essential for the exercise of the Tribe’s sovereign jurisdiction over the Property. Pl. Mem. (Doc. 17-1) at 12:8-13. But Plaintiff has ignored the Assistant Secretary’s well-reasoned explanation that “the [Tribe] cannot fully exercise tribal governance of the… land unless and until it is in trust for the [Tribe],” (AR 141:4618), not to mention the well-established case law supporting that determination. See, e.g., Santa Rosa Band of Indians, 532 F.2d at 658, 667 (tribes have sovereign jurisdiction over lands acquired in trust under IRA); Brendale v. Confederated Tribes & Band of Yakima Indian Nation, 492 U.S. 408, 430 (1989) (general rule is that tribes have no authority to regulate fee land). 6 Indeed, Plaintiff seems to recognize as much. See Pl. Mem. (Doc. 17-1) at 6 (discussing importance of federal trust status). Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 27 of 38 2:15-cv-02574-MCE-KJN - 20 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 greater personal security and privacy." Pl. Mem. (Doc. 17-1) at 12, quoting AR Doc 154:4497. In fact, the administrative record amply supports the BIA’s conclusion. See, e.g., AR 75:3016; 126:4365. Maps showing an aerial view of the existing tribal housing community (abutting a busy public highway) and the future planned residential community (set back from the highway) says it all. See AR 73:2080, 2087, 2100 (maps in EA). Finally, and fundamentally, the BIA’s conclusion with respect to the buffer zone was just one of the six findings supporting the agency’s decision to acquire the Property in trust for the Tribe. AR 126:4365-66. Even if Plaintiff’s concerns about the buffer zone had merit, they would hardly invalidate the BIA’s decision. For each of the reasons set forth above, Plaintiff’s allegations must be rejected and the BIA’s analysis of Tribal needs should be upheld. 2. The Bureau of Indian Affairs Properly Considered Jurisdictional Issues. The Part 151 Regulations require the BIA to consider the “jurisdictional problems and potential conflicts of land use which may arise” from the acquisition of land in trust for the benefit of an Indian tribe. 25 C.F.R. § 151.10(f). The BIA fulfills this obligation so long as it “undertake[s] an evaluation of potential problems” related to jurisdiction. South Dakota v. United States Dep’t of Interior , 314 F.Supp.2d 935, 945 (D.S.D. 2004) (quoting City of Lincoln City v. United States Dep’t of Interior, 229 F.Supp.2d 1109, 1124 (D. Or. 2001)); see also County of Charles Mix, 799 F.Supp.2d at 1046. Notably, the Part 151 Regulations do not “mandate an outcome minimizing jurisdictional problems.” Town of Verona v. Jewell, 2015 U.S. LEXIS 38100, at *18 (N.D.N.Y. Mar. 26, 2015) (emphasis added). Nor does Part 151 require the BIA “to resolve conflicts that might arise or to oversee negotiations or to enforce specific commitments on potential conflicts.” Lincoln City, 229 F.Supp.2d at 1126. Careful consideration of jurisdictional issues is enough to satisfy the Regulations. Id. at 1123- 28. Likewise, the Part 151 Regulations do not require the BIA to speculate about Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 28 of 38 2:15-cv-02574-MCE-KJN - 21 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 potential jurisdictional conflicts that could theoretically arise from land uses not contemplated at the time of the proposed trust acquisition. Lincoln City, 229 F.Supp.2d at 1123-24; City of Yreka v. Salazar, 2011 U.S. Dist. LEXIS 62818, at *28. Such conjecture is beyond the scope of the analysis Part 151 mandates. Id. Consistent with the above-stated requirements, the BIA analyzed the potential jurisdictional conflicts that could result from acquiring the Property in trust for the Tribe. That analysis is reflected throughout the administrative record. For example, the EA addressed a variety of potential jurisdictional concerns, including land use and zoning issues (AR 73:2196-98), utilities and public services (AR 73:2198-2202), regulation of water resources (AR 73:2177-81), conservation of biological resources (AR 73:2188-92), and maintenance of regional transportation facilities (AR 73:2194-96). The BIA also considered and addressed public comments raising questions about potential jurisdictional conflicts. See, e.g., AR 32:580, 32:586, 32:588, 32:618-20, 32:638, 112:4099, 115:4116, 118:4172, 118: 4180-83 (jurisdiction over land use); 32:582, 32:626, 110:4093-94 (jurisdiction over transportation infrastructure); 32:586, 32:592, 32:634-36, 32:640 (general questions regarding civil/regulatory jurisdiction); 32:598, 32:640 (jurisdiction to regulate agricultural lands); 32:592, 32:640, 112:4098, 118:4183- 86 (taxes and public services); 32:598, 32:646 (jurisdiction to regulate water resources). The agency’s FONSI summarized these potential jurisdictional issues and imposed mitigation measures minimizing the impacts of each one. AR 32:544-62. The Regional Director reviewed all of this evidence and concluded that no significant jurisdictional conflicts are expected. Her findings include the following:  The Property is within the Tribe’s ancestral territory and is contiguous to other land already held in trust for the Tribe (AR 126:4368);  Although the trust acquisition would remove the Property from local and State civil/regulatory jurisdiction, the State of California would continue to have criminal/prohibitory jurisdiction over persons and conduct occurring on the land (AR 126:4368); Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 29 of 38 2:15-cv-02574-MCE-KJN - 22 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0  The trust acquisition contemplates that most of the Property will be used in a manner that is generally consistent with Yolo County’s existing agricultural zoning designations, and roughly 88% of the Property will remain in agricultural production (AR 126:4368);  The Tribe shares Yolo County’s interest in protecting the Property’s rural character (AR 126:4368);  The Tribe will continue to provide and fund law enforcement, fire protection and emergency services both on its own lands and, through mutual aid arrangements, elsewhere in Yolo County (AR 126:4368-69); and,  The Tribe and Yolo County have developed a positive working relationship, and the Tribe intends to continue fostering that relationship both as a good neighbor and in the spirit of government-to-government relations (AR 126:4369). Plaintiff appealed these findings to the Assistant Secretary, who carefully reviewed the administrative record and confirmed the Regional Director’s analysis satisfied the Part 151 Regulations. See AR 141:4619-20. The federal courts have consistently upheld similar agency decisions as consistent with Part 151. For example, in South Dakota v. United States Dep’t of Interior, the Eighth Circuit held that the BIA satisfied Part 151 by considering the relationship between the proposed trust acquisition and existing reservation land, the impact of the proposed acquisition on public services, and the relationship between the tribes. S. Dakota , 487 F.3d at 553-54. Similarly, City of Lincoln City v. United States Dep’t of Interior upheld a trust acquisition where the BIA had “considered the practical consequences” of the acquisition and responded to questions about jurisdictional issues. Lincoln City, 229 F. Supp. 2d at 1124-25. Plaintiff nonetheless argues the BIA failed to adequately consider potential jurisdictional issues. Pl. Mem. (Doc. 17-1) at 14-16. In Plaintiff’s view, placing the Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 30 of 38 2:15-cv-02574-MCE-KJN - 23 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Property in trust for Yocha Dehe “creates the possibility that the Tribe will extensively develop what are currently undeveloped and almost entirely agricultural lands.” Id. at 14. Plaintiff theorizes that this hypothetical development could result in “numerous problems relating to land use and transportation impacts,” thereby creating “challenges” for local and state governments. Id. at 14-15. Plaintiff further asserts that Yolo County’s concerns on this subject were “ignored.” Id. at 15. Plaintiff’s position lacks merit. Contrary to its assertion, the Part 151 Regulations do not require the BIA to speculate as to consequences of hypothetical future development scenarios. City of Yreka, 2011 U.S. Dist. LEXIS 62818, at *28. The BIA need only analyze potential conflicts that would arise from the uses “actually proposed by the Tribe.” Lincoln City, 229 F.Supp.2d at 1124. As explained above, the administrative record clearly demonstrates that the BIA satisfied this requirement. See, e.g., AR 73:2177-2181, 73:2188-2192, 73:2196-2202 (evaluation of potential issues); AR 32:580, 32:586, 32:588, 32:592, 32:618-20, 32:634-36, 32:638, 32:640, 112:4098-99, 115:4116, 118:4172, 118:4180-86 (comments and responses to comments regarding jurisdictional questions); AR 126:4368-69 (Regional Director’s findings); AR 141:4619-20 (Assistant Secretary’s analysis). In contrast, the administrative record contains no evidence of the “extensive development” about which Plaintiff claims to be concerned. As the Assistant Secretary appropriately concluded, “[n]othing in the record supports [Plaintiff’s] theories about proposed future uses and jurisdictional conflicts related to those uses” and Plaintiff has “identified no evidence that the [BIA] failed to consider.” AR 141:4619-20. Indeed, the only reference to future development in the administrative record is a comment by Yolo County expressing generalized concerns about the possibility of future land use. AR 112:4097-99. The Regional Director carefully considered and fully addressed the County’s comments during the administrative process. AR 112:4097-99; 118:4180-82; 126:4359, 4361-63. The County did not appeal the Regional Director’s analysis and is not a party to this proceeding. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 31 of 38 2:15-cv-02574-MCE-KJN - 24 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Finally, Plaintiff’s contention that the BIA “ignored” the County’s suggestion to impose a deed restriction on the Property is contrary to both the administrative record and the law. The record confirms the BIA fully considered the County’s concerns. See AR 118:4182-83 (addressing comments regarding deed restriction); AR 126:4368-69 (Regional Director’s analysis); AR 141:4619-20 (Assistant Secretary’s analysis). And, as a matter of law, the IRA neither requires nor authorizes the BIA to impose deed restrictions limiting future tribal land use. See 25 C.F.R. § 151.10(f); City of Lincoln, Oregon v. Portland Area Director, 33 IBIA 108, 107 (1999) (“nothing in… Part 151 authorizes the [BIA] to impose restrictions on the Tribe’s future use of land” ). For each of the reasons set forth above, the BIA properly considered jurisdictional issues and Plaintiff’s claims to the contrary should be rejected. 3. The Bureau of Indian Affairs Properly Considered Land Use, And Potential Development, Issues. Plaintiff next argues the BIA failed to consider and address the possibility that the Tribe will further develop its trust lands. Pl. Mem. (Doc. 17-1) at 16. Plaintiff does not clearly specify whether its claims address the possibility of development on the newly- acquired Property or the possibility of development on the Tribe’s pre-existing trust land. Compare Id. at 16:20-23; 17:8-25 (discussing potential development on trust lands in vicinity of lands acquired in trust), with 16:17-20; 17:1-6, 17-20, 23-25 (discussing development of the Property). Either way, Plaintiff’s argument fails. To the extent Plaintiff is alleging the BIA failed to consider the possibility of additional development on the Tribe’s pre-existing trust land, its claim must be rejected as waived. Plaintiff never raised this issue during the BIA’s lengthy, public administrative process. See AR 32:590 (comment letter on EA); 115:4116-17 (comment letter on Application). And any argument not raised by a party during the administrative process is deemed forfeited. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) see also Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 32 of 38 2:15-cv-02574-MCE-KJN - 25 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Buckingham v. United States Dep’t of Agric., 603 F.3d 1070, 1080-81 (9th Cir. 2010).7 To the extent Plaintiff is alleging the BIA failed to consider the possibility of further development on the Property, its claim fails on the merits. First, the BIA did, in fact, consider future uses of the Property. See supra Part V.B.2; see also AR 126:4368 (“the overwhelming majority of the property will be used for purposes consistent with … Yolo County’s Agricultural Preserve zoning, and roughly 88% of the property will remain in agricultural production.” ). Second, Plaintiff’s argument is an impermissible collateral attack on the adequacy of the BIA's NEPA review of growth-inducing impacts. See Pl. Mem. (Doc. 17-1) at 17. Plaintiff raised, lost and abandoned its NEPA claims during the administrative appeal process (AR 136:4471-78; 141:4621-4623). It has not pursued any NEPA claims here. See Complaint (Doc. 1) at ¶¶ 39-43 (no NEPA claims); Pl. Mem. (Doc. 17-1) (failing to allege a NEPA violation). Having abandoned its NEPA claims, Plaintiff has waived any arguments that the EA is insufficient. Third, even if Plaintiff’s NEPA arguments were properly before the Court, they would fail on the merits. Contrary to Plaintiff's suggestion, the BIA fully considered the potential growth-inducing impacts of the trust acquisition, and properly considered whether the acquisition would cause any significant environmental effects, concluding it would not. See AR 73:2217-18. Fourth, Plaintiff reads too much into Village of Ruidoso v. Albuquerque Area Director, 32 IBIA 130 (1998). In Ruidoso, the IBIA considered whether the BIA improperly approved a trust land acquisition request for non-gaming purposes and did not evaluate future gaming use. Id at 136. There, the administrative record revealed considerable evidence that the tribe may have intended to use the land for gaming, including: (i) a tribal council resolution stating that the land was gifted from owners of a 7 Even if Plaintiff's allegations had not been waived, they would fail on the merits. Contrary to its assertion, the BIA fully considered the possibility of development on pre- existing Tribal trust lands. See AR 32:644; 73:2074, 2217-18; 75:3016; 118:4186; 126:4365. Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 33 of 38 2:15-cv-02574-MCE-KJN - 26 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 gaming corporation; (ii) public comments expressing concern regarding potential gaming use (iii) the fact that the record contained no statements from the tribe addressing gaming use; (iv) and, two BIA internal memoranda in the record expressing the BIA’s own concerns regarding potential gaming use. Id. at 136-37 (emphasis added). In light of these facts, the IBIA determined that the BIA should have addressed the relationship between the tribe and the gaming corporation in its decision. Id. at 139. In contrast, nothing in the administrative record here suggests the Tribe intends to commercially develop any part of the Property, or that the BIA itself was concerned with potential future development. Yocha Dehe made clear, by repeated written statements in the record, that it intended to use the Property for housing, governmental, educational, cultural, infrastructure, and agricultural purposes. AR 32:534-536; 73:2070, 2074-75, 2078-84; 75:3017-19; 118:4170-71, 4177-79. The only “evidence” concerning potential commercial development is Yolo County’s conjecture, and unsubstantiated concerns. AR 112:4099; 126:4359. Under Plaintiff’s reading of Ruidoso, the BIA would be required to reject a Tribe's own representations and assurances in favor of baseless speculation by non-tribal parties. Neither Ruidoso nor the Part 151 Regulations require the BIA to engage in the speculative analysis Plaintiff suggests. City of Lincoln, 229 F.Supp.2d at 1123-24; City of Yreka, 2011 U.S. Dist. LEXIS 62818, at *28. Fifth, Plaintiff’s vague reference to development “the Tribe… considered in the recent past” is factually inaccurate and legally irrelevant. Pl. Mem. (Doc. 17-1) at 17:23- 25. The development in question was definitively abandoned - not “deferred,” as Plaintiff misleadingly suggests - nearly a decade ago, in 2008. Compare Pl Mem. (Doc. 17-1) at 11:3-4 (development was “deferred” ) with AR 32:604 (Tribe's letter confirming that the development would not be pursued). And the BIA properly reviewed the issue in any event. See AR32:644 (response to comment letter regarding abandoned development). Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 34 of 38 2:15-cv-02574-MCE-KJN - 27 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 4. The Tribe Provided All Required Information to the Bureau of Indian Affairs. The administrative record shows that the Tribe provided the BIA with the information required to thoroughly consider - and approve - the Tribe’s trust land acquisition request. Among other things, the Application addressed, in detail, each of the required considerations under 25 C.F.R. §§ 151.9, 151.10, 151.13. See AR 75:3003-31 (narrative discussing Property location, need, current and proposed use, property taxes, jurisdictional concerns, potential burdens on BIA, title requirements, and NEPA compliance). It included detailed information concerning property taxes to assist the BIA in evaluating the effect of removal of the Property from the tax rolls. See AR 75:3230-61 (property tax statements for all 16 parcels). It enclosed a commitment to issue a title insurance policy, addressing all exceptions affecting marketability of title. See AR 75:3262-3428, 90:3539-3898 (commitment and updated commitment to issue title insurance, and copies of all documents affecting title to Property). And, of course, the Tribe fully cooperated with the BIA in the agency’s compliance with NEPA. See AR 32:532-659 (FONSI); 73:2064-2249 (EA); 74:2250-3002 (EA appendices). The Application also included additional information and documentation to assist the BIA in processing the Tribe’s request. It identified the Tribe as it is listed in the Federal Register. See AR 75:3033 (identifying “Yocha Dehe Wintun Nation,” as listed in 81 Fed.Reg. 26826, 26830). It discussed the statutory authority for the acquisition, including how such authority applies to the Tribe. See AR 75:3004-05 (IRA as statutory authority, and Tribe’s status as being “under federal jurisdiction” in 1934 for IRA purposes). Copies of the deeds vesting fee title in the Tribe were included. See AR 75:3041-74 (grant deeds to Tribe from prior landowners). The Property’s legal land description, as well as copies of all recorded documents referenced therein, were also included. See AR 75:3006-14, 3092-3121 (legal land description and documents referenced therein); 75:3041-74 (deeds vesting title in Tribe). Maps of the Property, depicting parcel boundaries and location relative to existing land features and Tribal trust Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 35 of 38 2:15-cv-02574-MCE-KJN - 28 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 lands, were enclosed. See AR 75:3014, 3076-90 (assessor parcel and site and vicinity maps). The Application even included documentation regarding existing land use restrictions and evidence of non-renewing Williamson Act contracts imposing those restrictions. See AR 3015, 3123-3215 (California Land Conservation contracts, notices of non-renewal, and proof of prior expirations). Despite the foregoing, Plaintiff argues the Tribe failed to provide the BIA with a detailed accounting of the Tribe's trust land and its existing use: to wit: a “complete accounting” of the total acres already held in trust for the Tribe, existing land use of these acres, and information regarding the so-called “deferred extensive development expansion on [the Tribe’s] existing trust acres.” Pl. Mem. (Doc. 17-1) at 11; see supra pp. 26-27. For this reason, Plaintiff argues, the BIA was denied the information it needed to "thoroughly evaluate" the Tribe's claimed need for additional trust land, and vacatur is thus appropriate. Pl. Mem. (Doc. 17-1) at 11, 19-20. The argument is factually inaccurate and legally wrong. First, as a matter of law and demonstrated above (supra Part V.B.1,), a tribe's need for trust land is not determined by whether or how much land is already held in trust for the Tribe. See, e.g., City of Oneida v. Salazar, 2009 U.S. Dist. LEXIS 85960, *14 (tribe need not be “landless” or “indigent” for purposes of 25 U.S.C. § 5108). Nor is need established only where a tribe can show additional trust land is essential for proposed development. See 25 C.F.R. § 151.3(a)(3) (trust land may be acquired for self-determination, economic development and housing purposes). Moreover, nothing in Part 151 or the BIA’s policies and procedures requires the agency or the Tribe to engage in an acre-by-acre analysis of existing trust lands, detailing the use of each acre of trust land, to demonstrate the need for more.8 8 In this vein, Plaintiff cites a litany of IBIA decisions to argue the BIA failed to engage in informed decision-making here. Plaintiff Mem. (Doc. 17-1) at 19:6-15. But none of Plaintiff's cited decisions involve facts remotely resembling those present here and, thus, do not support Plaintiff’s claims. See City of Eagle Butte, South Dakota v. Great Plains Regional Director, 38 IBIA 139, 140 (2002); and see Ziebach County, South Dakota v. Great Plains Regional Director, 36 IBIA 201, 204 (2001) (decision to acquire land Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 36 of 38 2:15-cv-02574-MCE-KJN - 29 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 Plaintiff's position also lacks factual foundation. The record confirms the Tribe's trust land (whatever each particular acre's particular use) is fully developed and unavailable for use as tribal housing or for agriculture as a means of economic development. See AR 32:644; 73:2074; 75:3016. Having made several site visits, and having developed the record, BIA was fully aware of this fact. And, Plaintiff does not dispute that all of the Tribe's trust was unavailable for housing or agriculture, two of the most pressing needs for the instant acquisition. See Pl Mem. (Doc. 17-1) at 2:5-8. Accordingly, the Court should reject Plaintiff’s contention that the Tribe failured to provide the BIA with necessary information. The Bureau of Indian Affairs Independently Reviewed andC. Analyzed All Relevant Evidence. In a last ditch argument, Plaintiff attacks the integrity of agency officials, suggesting the BIA failed to engage in an independent analysis when evaluating the Application because portions of the Decision include language from the Application itself. Pl. Mem. (Doc. 17-1) at 20-21. Plaintiff contends these cherry-picked passages prove the BIA rubber stamped the Application “without… evidentiary support in the administrative record.” Id. at 21. But Plaintiff makes no effort to explain precisely what evidentiary support is lacking in the record, or how the BIA’s agreement with certain statements in the Application establishes lack of due consideration. Further, Plaintiff’s argument essentially ignores nearly all of the administrative record, which contains over 4,000 pages of evidence and analysis, developed by the agency over the course of contained no analysis of several of the required criteria in § 151.10 and did not address arguments raised during administrative appeal); Colby v. Acting Eastern Oklahoma Regional Director, 35 IBIA 139, 140 (2000) (remand based solely procedural posture of case, not merits of underlying claims with regard to BIA decision); Plain Feather v. Acting Billings Area Director, 18 IBIA 26, 29 (1989) (record lacked documents pivotal to decision, and required as part of BIA’s review process under applicable regulations); Day County v. Aberdeen Area Director, 17 IBIA 204, 208 (1989) (decision lacked analysis of whether applicant needed assistance handling affairs, as required by § 151.10(d)). Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 37 of 38 2:15-cv-02574-MCE-KJN - 30 - YOCHA DEHE MEMO ISO CONSOLIDATED CROSS MSJ AND OPP TO PLAINTIFF’S MSJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D E N T O N S U S L L P O N E M A R K E T P L A Z A ,S P E A R T O W E R ,2 4 T H F L O O R S A N F R A N C IS C O ,C A L IF O R N IA 9 41 0 5 (4 15 ) 26 7 -4 00 0 101104158\V-17 approximately three years. See AR 1:1-126:4380 (administrative record); see AR 75:3003 (Application date: June 20, 2011); 126:4348 (Decision date: Apr. 28, 2014). It also ignores multiple rounds of public comment, in which Plaintiff itself participated. See AR 32:568-650; 105: 4052-118:4297 (comments on EA and notice of application and responses to same). And it pretends the remaining portions of the 25-page Decision - addressing each and every one of the Part 151 considerations, and discussing comments and responses thereto - simply does not exist. See AR 126:4348-4380 (Decision). As the Assistant Secretary noted, nothing in the Part 151 Regulations requires the BIA to weigh or balance each factor in a particular way or reach any particular conclusion. AR 141:4620. And it was perfectly reasonable for the BIA to rely on the Tribe’s statements in the Application without explaining precisely why or how such statements are accurate. See City of Yreka v. Salazar, 2011 U.S. Dist. LEXIS 62818, at *25. So long as there exists a rational basis for a BIA decision, supported by evidence in the administrative record, the decision must be upheld. SeeBear Lake Watch, Inc., 324 F. 3d at 1076. Accordingly, the Court should reject Plaintiff’s argument that the BIA failed to engage in the requisite independent analysis simply because it agreed with the Application, reciting certain passages in its Decision. CONCLUSIONVI. For the foregoing reasons, the Tribe respectfully requests that its Motion for Summary Judgment be granted and that Plaintiff’s Motion for Summary Judgment be denied. Dated: September 7, 2016 DENTONS US LLP By: /s/ Paula M. Yost Paula M. Yost Matthew Adams Attorneys for Intervenor YOCHA DEHE WINTUN NATION Case 2:15-cv-02574-MCE-KJN Document 20-1 Filed 09/07/16 Page 38 of 38 Case 2:15-cv-02574-MCE-KJN Document 20-2 Filed 09/07/16 Page 1 of 2 Case 2:15-cv-02574-MCE-KJN Document 20-2 Filed 09/07/16 Page 2 of 2