[00:00:03] Speaker 02: Case number 19-5285. [00:00:06] Speaker 02: Stand up for California at all, a balance versus United States Department of the Interior at all. [00:00:12] Speaker 02: Ms. [00:00:12] Speaker 02: McLean for the balance. [00:00:14] Speaker 02: Mr. Toth for the Appellee's Department of Interior at all. [00:00:18] Speaker 02: Ms. [00:00:18] Speaker 02: Ellsworth for the Appellee, Wilton Rancheria, California. [00:00:23] Speaker 01: All right. [00:00:24] Speaker 01: Ms. [00:00:24] Speaker 01: McLean. [00:00:25] Speaker 04: Thank you, Your Honor. [00:00:26] Speaker 04: Good morning. [00:00:27] Speaker 04: May it please the Court, here on behalf of the Appellant's Stand-up for California, Patty Johnson, Joachim Shera, and Len Wheat. [00:00:34] Speaker 04: This case involves a trust decision that was made by an unauthorized federal official without meaningful public review for Indians that are ineligible for trust land hours before the inauguration in 2017. [00:00:51] Speaker 04: In 2013, the Wilton Ranch area applied to have 282 acres of land in Galt acquired in trust for a casino. [00:00:59] Speaker 04: The department and the public reviewed that application for three years. [00:01:03] Speaker 04: Two weeks after the 2016 election, however, the principal deputy assistant secretary, Larry Roberts, asked the state, local governments if you- Can I just ask, you're presenting this as if this is a [00:01:15] Speaker 01: one administration did something on its way out. [00:01:18] Speaker 01: But in fact, the succeeding administration certainly indicated that it had no problem with that. [00:01:25] Speaker 01: I appreciate the issue of whether it's ratified or not. [00:01:28] Speaker 01: But Trump administration, including its deputy secretary, to the extent that he could, tried to retroactively ratify this. [00:01:40] Speaker 01: So this is not [00:01:41] Speaker 01: in tone anyway, this is not a case of one administration slipping something in as it's leaving, isn't that right? [00:01:48] Speaker 04: Well, no, Your Honor, I guess I would disagree that it was a case where one administration was trying to get something in without having gone through the... But it is true that the next administration said it was ratifying, not whether... [00:02:04] Speaker 04: Your Honor, the next administration, as an initial matter, the documents that the government has referred to are not part of the administrative record. [00:02:13] Speaker 01: I'm assuming that they are. [00:02:14] Speaker 01: They're legal documents ratifying for purposes of, I'm going to use the word, ratifying. [00:02:27] Speaker 01: isn't the next administration is defending this. [00:02:32] Speaker 01: So this doesn't seem like it's something that this is a dispute between administrations. [00:02:36] Speaker 01: Maybe I'm wrong. [00:02:37] Speaker 01: I'll ask the Justice Department. [00:02:38] Speaker 01: Oh, I don't mean to suggest. [00:02:40] Speaker 01: But it seems like they are. [00:02:42] Speaker 04: I'm sorry, Your Honor. [00:02:42] Speaker 04: I didn't mean to suggest there's a dispute between the administrations. [00:02:46] Speaker 04: My point is that, first of all, with respect to those documents, the February 10th document doesn't say anything about ratifying [00:02:56] Speaker 04: The principal deputies decision. [00:02:58] Speaker 01: I understand the words ratifying and I didn't mean that I know you have a dispute about that, but I just wanted to be clear that this is not a dispute between two administrations. [00:03:07] Speaker 04: No, I don't. [00:03:09] Speaker 04: I mean, to suggest this is just a feature of administration. [00:03:11] Speaker 01: Go ahead with the argument. [00:03:12] Speaker 05: Go ahead. [00:03:13] Speaker 05: Just another limited detail. [00:03:15] Speaker 05: You did say that they were outside the record. [00:03:18] Speaker 05: But if we're referring to the Connor memo and the Black decisions, those were exhibits in the district court. [00:03:24] Speaker 05: They're in the joint appendix. [00:03:27] Speaker 04: For purposes of our preliminary, we had a preliminary dispositive summary judgment motions in which we attached those documents [00:03:35] Speaker 04: after having gotten them from the Department of Justice for our request. [00:03:39] Speaker 04: We did ask to have those documents and the administrative record associated with those documents produced. [00:03:45] Speaker 04: The government opposed that and said that because the January 19th decision was final on its base, there was no reason to produce an administrative record for anything that came after January 19th. [00:03:59] Speaker 04: They were successful in that and there's been no administrative record produced [00:04:03] Speaker 04: for anything that occurred after January 19th. [00:04:07] Speaker 05: So that really goes to this question of finality versus availability of administrative, further administrative action? [00:04:14] Speaker 04: Well, yes, Your Honor. [00:04:16] Speaker 04: The government has taken the position. [00:04:17] Speaker 04: The department originally took the position that the decision was final on January 19th because the principal deputy was exercising the authority of the assistant secretary. [00:04:30] Speaker 04: And the department's position is that the regulations which only allow the secretary and the assistant secretary to issue final trust decisions doesn't preclude the principal deputy from issuing final trust decisions. [00:04:44] Speaker 04: That is the position they've maintained in the litigation and it is also the position that they set forth in the July 10th memorandum. [00:04:55] Speaker 04: However, [00:04:56] Speaker 04: Since then, it appears now that the department is largely relying on this ratification notion, both for the Conner memo, which also does not appear in the administrative record, and through the February 10th and July 13th memos as well. [00:05:16] Speaker 05: Just limited to the memo of Deputy Secretary Conner, [00:05:21] Speaker 05: If I'm understanding it correctly, their view is, well, first, your view is that 25 CFR 15112C, by naming the secretary and the assistant secretary under the reasoning, a kind of expressio unius per giordano, prevents any other delegation. [00:05:42] Speaker 04: That is our position. [00:05:43] Speaker 04: In 2013, the department revised the part 151 trust regulations [00:05:50] Speaker 04: to establish that the secretary and the assistant secretary have the authority to issue final trust decisions that's in 15112C and that the BIA officials [00:06:01] Speaker 04: have the authority to issue non-final trust decisions. [00:06:03] Speaker 05: Right. [00:06:04] Speaker 05: But their position is that it's not so limited, that delegation is presumptively permissible, relying on international telecom. [00:06:14] Speaker 05: And if we were to agree that this is more like international telecom than like Giordano, in the sense that in Giordano, for a wiretap, it's very strongly, very narrowly controlled. [00:06:26] Speaker 05: But this is not that kind of decision. [00:06:31] Speaker 05: presumptively delegable, then your position there is? [00:06:37] Speaker 04: Well, I think, Your Honor, the first question is, is the regulation clear on its base? [00:06:42] Speaker 04: And the Supreme Court advised in Kaiser that [00:06:44] Speaker 04: You used traditional methods of statutory interpretation when interpreting regulations. [00:06:49] Speaker 05: But I was just by hypothesis taking on that and saying, if we don't think the negative inference on the face of the regulation without it saying only or exclusively these two offices that, assuming that there is some permissible delegation, then the question is, was a delegation [00:07:12] Speaker 05: permissible for this agency and or was a delegation made in this instance? [00:07:20] Speaker 04: I think that we have, and I want to make sure I'm responding to each of your questions, so we don't believe that there was a legally [00:07:28] Speaker 04: there was a legal delegation at all to the principal. [00:07:30] Speaker 05: Right. [00:07:31] Speaker 05: So putting aside your language of the regulation, putting aside that argument just for purposes of parsing the steps, the next step in their argument is that under the department manual, in the absence of the assistant secretary, the principal deputy assistant secretary can authorize [00:07:52] Speaker 04: delegated authority and your response to that is Is that the manual is specific about when the principal deputy can exercise that authority and has to be in the absence of the assistant secretary. [00:08:09] Speaker 05: Whereas here, the position's vacant, and you say those are two different things. [00:08:13] Speaker 05: They are two different things. [00:08:14] Speaker 05: And the government responds that that argument was not, that particular argument about the difference between the word absent and vacant was not raised in the district court and was forfeited. [00:08:27] Speaker 05: And I followed that, and I wonder what your best site is for where you think it was preserved. [00:08:34] Speaker 04: Well, Your Honor, we had, it's, [00:08:39] Speaker 04: I think the clearest statement of it was during oral argument. [00:08:43] Speaker 04: It was not clear during the proceedings that the United States, our argument had focused on 15112 in the plane meeting. [00:08:51] Speaker 04: And that was the response of what the federal government and the tribe responded to. [00:08:58] Speaker 04: During the proceedings before the court, when it became clear that there was confusion about the word vacancy versus absence within [00:09:08] Speaker 04: within the department manual, we addressed that directly during oral argument. [00:09:14] Speaker 04: But our position has been throughout that manual provisions 8.1 and 8.4 are not sufficient to grant the principal deputy authority to issue this decision. [00:09:27] Speaker 05: Right. [00:09:27] Speaker 05: I understand that's your principal argument. [00:09:30] Speaker 05: And the ratification by a secretary [00:09:36] Speaker 05: Connor saying, oh gosh, we, you know, we meant to say Larry, what's his name again? [00:09:43] Speaker 05: Roberts. [00:09:45] Speaker 05: And we gave him the wrong title, but we mean Roberts and here's his correct title. [00:09:52] Speaker 05: That fails to cure in your view because [00:09:59] Speaker 04: Deputy Secretary Conner's memorandum is not a legally appropriate delegation under the department manuals. [00:10:11] Speaker 04: The deputy secretary has to follow certain procedures in order to delegate the authority of the secretary. [00:10:19] Speaker 04: Those procedures include publishing the delegation in a department manual release, having the secretary's approval on the delegation, and identifying the specific authority under which that delegation is taking place. [00:10:34] Speaker 04: And the Connor memorandum does none of those things. [00:10:38] Speaker 04: Apart from that, the Connor memorandum was issued prior to the trust decision on January 19th. [00:10:46] Speaker 04: During oral argument, the Department of Justice represented that it had been issued earlier. [00:10:53] Speaker 05: So there's no basis certainly to claim the Connor Memorandum ratified the... Well, it could be ratifying the delegation as opposed to the decision, which in some sense is actually stronger for them as opposed to weaker because it's saying, we really mean you, Roberts, to be empowered in this category of actions. [00:11:12] Speaker 05: And then Roberts takes an action [00:11:18] Speaker 04: I would say that the department, the deputy secretary is still obligated to follow the procedures that are set forth in the department. [00:11:27] Speaker 05: In the manual. [00:11:28] Speaker 05: Now, their response, the tribe says in its brief at 38 to 39, these are kinds of internal formalities that are really up to the agency. [00:11:36] Speaker 05: And yeah, maybe they didn't adhere to them, but there's no private right of action on that. [00:11:41] Speaker 05: It certainly doesn't render the outcome illegal in any way that [00:11:46] Speaker 05: violates Appointments Clause or or law or regulation. [00:11:50] Speaker 05: So, you know, just, it's just not something that we as a court could pass on and your best response to that is [00:12:00] Speaker 04: Well, we would come back to the plain language of the regulation, of course. [00:12:04] Speaker 04: But apart from that, the delegations are important because they're a way of ensuring that the decision makers are exercising the authority in a legally appropriate way. [00:12:15] Speaker 04: And when those delegations take place in a manner that's inconsistent with the manual, the public can have no idea how they've been granted that authority from whom, whether that authority was valid. [00:12:27] Speaker 04: And it leaves everyone uncertain as to [00:12:30] Speaker 04: whether a decision, for example, is final or non-final. [00:12:34] Speaker 04: And if we had assumed, for example, that the principal deputy's decision was final, but if you look at 25 CFR.2, Section 2.4, it says that the IBIA has the power to hear appeals from any deputy's decision. [00:12:53] Speaker 04: we could have missed the deadline for filing administrative appeal and then our rights to ever challenge a decision would be lost. [00:12:59] Speaker 04: There is, it is important. [00:13:00] Speaker 05: Although didn't you seek to file an administrative appeal and then it was clarified then that actually this was somebody acting as assistant secretary and therefore, I mean, isn't that what happened with the class? [00:13:13] Speaker 04: No, that's not, we actually reached out to the department after the decision was issued and asked [00:13:20] Speaker 04: under what basis they were claiming that this decision, which was signed by the principal deputy, not by the assistant secretary, how that was final. [00:13:30] Speaker 04: We received no answer. [00:13:32] Speaker 04: At a certain point, we concluded that it was necessary for us to file an appeal to preserve our rights. [00:13:37] Speaker 04: So we filed an appeal before the IVIA, the Interior Board of Indian Appeals. [00:13:41] Speaker 04: The board then asked the parties to brief whether [00:13:47] Speaker 04: They believed that the decision was final or non-final. [00:13:51] Speaker 04: At that time, the acting assistant secretary Indian Affairs, Michael Black, who is acting pursuant to a delegation of authority from the acting secretary, assumed jurisdiction over the appeal pursuant to section 2.20. [00:14:10] Speaker 04: At which point we waited until the department ultimately issued, until Black ultimately issued a decision July 13th saying that the January 19th decision was final. [00:14:25] Speaker 00: And I assume you, you also filed a protective, um, um, well, did you do something to kind of like protect, um, [00:14:39] Speaker 00: your rights in the interim, or you just relied on that decision as the July 13th decision as kind of starting the clock as opposed to January 19th starting the clock to file an action in district court? [00:14:54] Speaker 00: Or did it matter for your kind of statute of limitations purposes? [00:14:59] Speaker 04: No. [00:14:59] Speaker 04: Well, Your Honor, what we did was we went to the district court and sought a temporary injunction or a TRO [00:15:08] Speaker 04: prior to the decision being issued. [00:15:11] Speaker 04: When it became clear based on the timeline and the abbreviated comment period or comments for the NEPA review, we asked the port to enjoin not the decision itself, but the transfer of land into trust based on that decision. [00:15:30] Speaker 04: At that point, that was, I believe, on January 10th. [00:15:35] Speaker 04: And the department represented to the court that I did not know whether a decision would be forthcoming or what that decision would look like. [00:15:45] Speaker 04: On that basis, and for other reasons, the district court denied the relief that we sought. [00:15:51] Speaker 04: We then filed a request under 705, the APA, asking the department whether it would stay the effect of its decision, namely not transfer title to the Land and Trust. [00:16:05] Speaker 04: until we had the opportunity to return to court once the final decision had been made. [00:16:11] Speaker 04: That decision was pending and the department then acquired the land in trust, transferred the land in trust on February 10th before we could go back to the court and seek relief because they had not yet denied our 705 request. [00:16:26] Speaker 04: So we already had an action pending in court at that time. [00:16:30] Speaker 04: The statute of limitations that applies actually [00:16:33] Speaker 04: with respect to challenging a trust decision in six years. [00:16:36] Speaker 04: So there wasn't a timing issue for us to go to court. [00:16:39] Speaker 04: But we had tried in many different ways to try to stay the effect of the decision prior to July 13th. [00:16:50] Speaker 00: Just so that I can understand your position with respect to the presumption of delegability. [00:16:57] Speaker 00: You believe that it does not apply to regulations as the same way that it applies to statutes, right? [00:17:04] Speaker 00: That's your first position. [00:17:06] Speaker 04: Well, I think that this court's never squarely addressed the issue and that the rationale for the presumption of regularity has less force in the context of agencies because when Congress passes statutes, it's not going to take the time in most cases [00:17:23] Speaker 04: to identify specifically who will be responsible for implementing what. [00:17:27] Speaker 04: So the presumption of delegability makes a lot of sense when you're looking at statutes. [00:17:33] Speaker 04: Within the agency, particularly after an agency has promulgated a rule, there's far less reason for that presumption to apply. [00:17:41] Speaker 04: And in this case, there's no reason for that presumption to apply because the rule specifically identifies and delegates to [00:17:50] Speaker 04: certain agency officials who has the power to make a final trust decision and who has the power to make non-final trust decisions. [00:17:57] Speaker 04: So there's no basis for applying a presumption of delegability in that context. [00:18:03] Speaker 00: Now, courts have applied the presumption of delegability to statutes even [00:18:14] Speaker 00: I guess, without respect to whether the statute was ambiguous, right? [00:18:19] Speaker 00: The courts haven't said, well, if the statute, we think, is generally speaking clear and unambiguous, then there will be no presumption of delegability. [00:18:34] Speaker 00: That hasn't been how that's worked, has it? [00:18:36] Speaker 04: No. [00:18:37] Speaker 04: No. [00:18:38] Speaker 04: Of course, not enough. [00:18:41] Speaker 00: But you're saying that we should do that [00:18:44] Speaker 00: with respect to this regulation because this regulation is clear and unambiguous. [00:18:50] Speaker 04: Well, when a regulation specifically identifies the individuals that have the authority to make certain types of decisions, there's no longer, the agency has already done the work for you. [00:19:04] Speaker 04: There's no reason to apply a presumption when the agency has specifically identified who is going to be responsible for what types of decisions. [00:19:16] Speaker 04: Applying the presumption of regularity in this context actually can undermine or negate the secretary's authority. [00:19:22] Speaker 04: The secretary goes through the rulemaking process in a specific as he was in this particular case where the preamble to the rule makes clear that [00:19:31] Speaker 04: Its purpose is to delegate to two officials and two officials, you know, only identified in their final trust decision-making authority, applying a presumption undoes what the secretary's- Well, that's sort of, that seems to me an argument that the secretary can make. [00:19:48] Speaker 01: I'm not sure that you have a standing, I don't mean in the constitutional sense, but the secretary here apparently doesn't agree with that point. [00:19:55] Speaker 01: The secretary doesn't believe that the secretary has been undermined by this. [00:19:59] Speaker 01: Of course, if the secretary were taking the position that the previous administration had undermined the secretary's authority or some underling in his own administration had done that, there would be an argument. [00:20:12] Speaker 01: But I don't really see that you're in the place of claiming that applying the presumption in this case undermines the secretary of a secretary's authority when the secretary doesn't think that. [00:20:31] Speaker 04: The department may defend a decision that is made, but that doesn't necessarily reflect what the language of the regulation requires. [00:20:42] Speaker 01: I understand that argument. [00:20:43] Speaker 01: Let me ask you, is there anybody else on the panel who has further questions? [00:20:48] Speaker 05: Thank you. [00:20:48] Speaker 01: Not at this time. [00:20:49] Speaker 01: Okay, great. [00:20:50] Speaker 01: We'll give you a chance for a bottle at the end. [00:20:52] Speaker 03: Thank you. [00:20:53] Speaker 01: All right, and now we'll hear from Mr. Toth, correct? [00:20:57] Speaker 03: Good morning, Your Honors, and please, the court. [00:20:59] Speaker 03: Brian Toth for the Defendant's House. [00:21:01] Speaker 01: I'm sorry. [00:21:02] Speaker 03: Not at all. [00:21:05] Speaker 03: This is one among a number of cases that have been brought by the same lead plaintiff, including in this court, challenging the Department of Interior decisions to acquire land and trust for often, like the Wilton Rancheria, previously landless Indian tribes in California, [00:21:26] Speaker 03: who were unlawfully terminated half a century ago and restored to federal recognition through a settlement. [00:21:35] Speaker 03: I've got to focus, as my friend on the other side did, largely on the delegation issues. [00:21:40] Speaker 03: But I just want to mention, I think the California Rancheria Act claim and the NEPA claims are fairly covered by the case law from this court. [00:21:49] Speaker 03: In particular, the North Fork decision, I think, controls the case as to the California Rancheria Act claim. [00:21:56] Speaker 03: And on NEPA, I think looking at the Supreme Court's decision in Marsh provides the rule of reason that is flexible enough to accommodate the type of procedural path that happened here under NEPA. [00:22:11] Speaker 03: So turning to the delegation issues, the district court correctly held both that the regulation did not restrict redelegation authority and also that there was a redelegation in fact in this case. [00:22:27] Speaker 03: On the first issue, whether the regulation is exclusive, the issue comes down to four, I think, four main factors, looking at the presumption, the plain text, the purpose of the regulation, and Interior's past statement as well. [00:22:48] Speaker 03: All of these factors considered together weigh in favor of concluding that the regulation does not restrict [00:22:56] Speaker 03: the assistant secretary in acquiring land in the trust or prevent redelegation. [00:23:01] Speaker 00: I'm trying to understand your argument. [00:23:05] Speaker 00: When you say, when we try to determine whether a function is exclusive, do you mean that in the same way that the Federal Vacancies Reform Act uses the term exclusive or non-exclusive? [00:23:20] Speaker 03: Yes. [00:23:22] Speaker 03: That's how this case, the arguments on appeal [00:23:25] Speaker 03: based on the regulation, that's how they fit with the Vacancies Reform Act. [00:23:31] Speaker 03: It's not disputed that this decision was made during a period where there was nobody who was an acting official for the Assistant Secretary, so that office was not occupied. [00:23:43] Speaker 03: Nevertheless, the Vacancies Reform Act permits, it's silent on, because it essentially carves out those responsibilities that are not [00:23:52] Speaker 03: required by statute or regulation to be exercised by, in this case, the secretary or assistant secretary, and only by those officials? [00:24:04] Speaker 00: Well, what do we do here where the definition of secretary in the regulations is secretary or authorized representative? [00:24:15] Speaker 00: I think it is. [00:24:17] Speaker 00: And then you have the regulation here, section 151.12, I think it is, that identifies the secretary and the authorized representative of the secretary who have the authority to make final trust decisions. [00:24:46] Speaker 00: Why should we presume that it would go any further than that, based on that plain language? [00:24:55] Speaker 03: I believe that you can read the definition of secretary in 151.2, I think it is, as a redundancy. [00:25:05] Speaker 03: In light of the purpose of and the text of 151.12, if you look at the overall structure of 151.12, [00:25:15] Speaker 03: Well, let's just take the text. [00:25:17] Speaker 03: First of all, it doesn't expressly restrict redelegability by the Assistant Secretary. [00:25:25] Speaker 03: The argument that I believe Your Honor is referring to is based on a canon against construing the regulations to avoid surplusage. [00:25:35] Speaker 03: That's a way of looking at the silence and trying to figure out what the silence in 151.12 means. [00:25:42] Speaker 03: I would submit that a fair reading of the regulation and looking also at the purpose of the regulation, not only does the regulation not include any express restriction, but the amendments that led to this 151.12 in 2013, they were in response to an entirely different issue than re-delegation. [00:26:04] Speaker 03: They were undertaken largely in response to the Supreme Court's decision in Patchak, which held contrary to the government's longstanding view that [00:26:12] Speaker 03: land and trust decisions were judicially reviewable under the APA. [00:26:17] Speaker 03: The prior regulation had included a 30-day waiting period to accommodate litigants who wanted to challenge those, consistent with the government's previous position that there was no judicial review once the land was acquired in trust. [00:26:32] Speaker 03: There was no longer any need for that 30-day waiting period. [00:26:34] Speaker 03: So that was the motivation from promulgating those regulations. [00:26:38] Speaker 03: At the same time, the regulations seek to inform [00:26:43] Speaker 03: challengers what paths they have for administrative review and how they can get to court. [00:26:49] Speaker 03: The regulations imposed expressly an exhaustion requirement. [00:26:53] Speaker 03: So yes, I would agree with my friend on the other side that it's important for them to know what their administrative appeal rights and avenues are. [00:27:02] Speaker 03: And the regulations do talk about two general paths in the decision making, one by the secretary, one by the assistant secretary. [00:27:10] Speaker 03: But where there is no assistant secretary, [00:27:14] Speaker 03: and nobody who is acting for that person. [00:27:17] Speaker 03: I think the regulation accommodates redelegation. [00:27:20] Speaker 03: It certainly doesn't restrict it. [00:27:21] Speaker 00: Well, it accommodates redelegation in 151.12d, certainly. [00:27:29] Speaker 00: But why shouldn't we read all of that to mean if it's redelegated further? [00:27:37] Speaker 00: then that's construed as being redelegated to a BIA official, and that's non-final. [00:27:44] Speaker 00: I mean, that makes all of this harmonious, right? [00:27:49] Speaker 03: So if I'm following you, in this case, Mr. Roberts was not, in fact, a BIA official. [00:27:54] Speaker 03: I apologize if I'm misunderstanding the thrust of your question here, but he was a principal deputy assistant secretary in the office of the assistant secretary. [00:28:06] Speaker 05: Right. [00:28:06] Speaker 05: Let me just interject there. [00:28:08] Speaker 05: One of the things that the challengers here raise is that the regulations expressly say that a principal deputy's decision qua principal deputy [00:28:18] Speaker 05: meaning not if he's acting as the assistant secretary, but when he's principal deputy. [00:28:23] Speaker 05: That also may be appealed to the board under 2.20C. [00:28:29] Speaker 05: So I think part of the difficulty here in terms of notice of which route has been taken, the administratively appealable route or the final, [00:28:38] Speaker 05: route is that this decision was signed by Roberts and doesn't say that he's doing it in his role acting as the assistant secretary? [00:28:49] Speaker 05: Is that the case? [00:28:51] Speaker 03: So I think the best response to that, I'm not recalling the signature block on the actual decision by Mr. Roberts, but I would point the court to JA 2457. [00:29:01] Speaker 03: It's the federal register notice for the notice of availability of the final EIS. [00:29:08] Speaker 03: There, Mr. Roberts, above his signature, he says, this notice is in the exercise of the authority delegated to the Assistant Secretary Indian Affairs by a department manual provision he cites. [00:29:20] Speaker 05: Which column are you in? [00:29:21] Speaker 03: Wait. [00:29:24] Speaker 03: I don't have the page in front of me. [00:29:26] Speaker 03: It's at the very end, the last paragraph. [00:29:28] Speaker 05: Oh, yeah. [00:29:29] Speaker 05: Signature. [00:29:36] Speaker 05: OK, yeah. [00:29:38] Speaker 05: So the signature itself, he says, Principal Deputy Assistant Secretary. [00:29:41] Speaker 05: But a couple sentences above that, it says, is in the exercise of authority delegated to the Assistant Secretary, Indian Affairs, by 209 DM-8. [00:29:55] Speaker 03: Yes. [00:29:57] Speaker 03: I understand the point about the regs pointing in different directions with the appeal regs. [00:30:01] Speaker 03: I mean, that's a different part of the, or a different subpart [00:30:06] Speaker 03: the Code of Federal Regulations. [00:30:09] Speaker 03: I don't think in this case that the plaintiffs were actually deprived of any administrative review. [00:30:15] Speaker 03: They sought an administrative stay under 5 USC 705, the APA. [00:30:21] Speaker 03: That was denied in writing. [00:30:24] Speaker 03: They later sought an administrative appeal. [00:30:27] Speaker 03: That was dismissed also in a lengthy written decision with the reasoning that we're defending here. [00:30:34] Speaker 03: I think if they're making the case that there was confusion or that they were deprived of some procedural right, they weren't. [00:30:42] Speaker 03: They attempted to exhaust their administrative appeals. [00:30:44] Speaker 03: They did it protectively. [00:30:45] Speaker 03: Turns out the department believed they were wrong and dismissed the appeals, but they still went to court. [00:30:50] Speaker 03: They were not out of time. [00:30:51] Speaker 03: They were challenging this, as my friend says, even before the decision was made, they were seeking a TRO. [00:30:57] Speaker 00: So can the department redelegate the authority? [00:31:01] Speaker 00: to a BIA official and have them standing in the shoes of the Assistant Secretary and make a final decision for the agency? [00:31:17] Speaker 03: A BIA official who would be delegated the authorities of the Assistant Secretary? [00:31:22] Speaker 03: Yes. [00:31:23] Speaker 03: That's a good question. [00:31:24] Speaker 03: I don't know the answer to that. [00:31:26] Speaker 03: I believe that they could, and I think the reason why [00:31:30] Speaker 03: is this reorganization plan number three of 1950 at JIA 2689. [00:31:38] Speaker 03: It was confirmed by Congress in a public law in 1984. [00:31:41] Speaker 03: It provides that the Secretary of the Interior may make such provisions as he shall deem appropriate, authorizing the performance by any other officer or by any agency or employee of the department. [00:31:57] Speaker 03: of any function of the secretary. [00:31:58] Speaker 03: I mean, that's maybe four uses of the term any, three or four. [00:32:03] Speaker 03: It's fairly broad, barely encompassing. [00:32:06] Speaker 00: And I- So you believe that someone who's not an officer of the United States can make a final decision taking land into trust and depriving states of rights and authority and power on behalf of the United States. [00:32:25] Speaker 00: And that raises no constitutional problem. [00:32:27] Speaker 03: I don't believe it raises constitutional problems. [00:32:30] Speaker 03: This is something I have looked at preparing for the argument, but we didn't quite brief this this way. [00:32:34] Speaker 03: I mean, what we said in the brief is that the constitutional issues require some sort of supervision for the person to be an inferior officer. [00:32:45] Speaker 03: But we didn't brief the question of whether someone temporarily exercising delegated responsibilities of an officer must be an officer. [00:32:55] Speaker 03: I'd be happy to provide supplemental briefing on that. [00:32:58] Speaker 03: I think that's another way of looking at this, because the path, Judge Wilkins, that you're describing, the second path to decision making under 151.12D by a BIA official normally leads to an appeal to the Board of Indian Appeals, which is made up of individuals who are not, they're not Senate confirmed, certainly. [00:33:21] Speaker 03: And they've recently been appointed by the secretary, [00:33:25] Speaker 03: I think what the plaintiffs are arguing for here is that they're entitled to some Senate confirmed decision maker, which they clearly are not. [00:33:33] Speaker 03: And I don't believe that they're, although we didn't brief it, I'd be happy to provide briefing on the question if ordered. [00:33:39] Speaker 03: I don't believe that even an officer is required to be a constitutional officer, to temporarily step in and be delegated the responsibilities of an officer of the United States. [00:33:53] Speaker 00: How are we supposed to [00:33:56] Speaker 00: see your argument as doing anything other than undermining the Federal Vacancies Reform Act. [00:34:05] Speaker 00: Because if we basically say that pretty much any obligation of a Senate-confirmed official is non-exclusive because the agency can redelegate it and there's a presumption that they can do so, then, you know, [00:34:26] Speaker 00: The Federal Vacancies Reform Act is essentially a dead letter because even if, as in this case, the time period passes, the agency doesn't matter. [00:34:41] Speaker 00: The agency can still function and just make the person [00:34:46] Speaker 00: who Congress said couldn't be the acting official anymore, just continue to be the acting official because they're just gonna delegate the authority to them. [00:34:57] Speaker 00: Why isn't that problematic? [00:35:00] Speaker 03: Because they still cannot exercise the authorities that Congress makes exclusive to the official who's no longer occupying the office. [00:35:10] Speaker 03: And if Congress wants to change those laws and, you know, [00:35:13] Speaker 03: building to more statutes, a restriction that only a certain officer or only a certain employee may exercise authority, it's free to do so. [00:35:22] Speaker 03: But for 20 years under the Office of Legal Counsel has taken the view that because the Vacancies Reform Act is not covered, it defines out, if you will, the non-exclusive responsibilities, not only ones that are not exclusive by statute, but also like here, ones that are not exclusive by regulation. [00:35:43] Speaker 03: It's simply silent. [00:35:44] Speaker 03: It simply does not restrict the government's ability to continue to perform those functions through re-delegation. [00:35:51] Speaker 00: So you think that the only way that something can be deemed exclusive is if Congress explicitly says so? [00:35:59] Speaker 03: Or if there is a regulation that makes that clear. [00:36:03] Speaker 03: And I think doing so explicitly would be the easiest way to do that. [00:36:08] Speaker 03: And we'd submit that this is not the type of regulation here. [00:36:11] Speaker 00: So the agencies, the executive gets to decide when something is exclusive by how they write their regulations, and they can just write the regulation to make everything non-exclusive. [00:36:22] Speaker 00: That's the way you think this works? [00:36:26] Speaker 03: They couldn't if there were a statute that made the responsibility exclusive. [00:36:31] Speaker 03: And to do that, a statute, as we know from Giordano, doesn't have to include express language. [00:36:37] Speaker 03: But there does have to be a compelling purpose behind the statute to limit redelegation. [00:36:46] Speaker 03: And while we think this regulation here, I mean, we think the same types of statutory principles can easily be applied to interpreting this regulation, but we don't think that there is a compelling purpose behind this regulation of restricting redelegation. [00:37:01] Speaker 03: Certainly, it provides information about two general paths [00:37:06] Speaker 03: or to ordinary decision making and the appellate rights and consequences for judicial review that follow an exhaustion. [00:37:12] Speaker 03: But that is not a restriction on redelegation. [00:37:15] Speaker 03: And we would ask the court not to read it as such. [00:37:17] Speaker 00: I have a question about Doolin and our case law about ratification. [00:37:25] Speaker 00: My reading of Doolin is that an officer can kind of ratify an act that was previously taken [00:37:36] Speaker 00: so long as the officer at the time of the ratification has the authority to take the act, to perform the act, him or herself, but also that the officer at the time that the decision was made, looking backwards, would have had the authority to have stood in the shoes of the actual decision maker. [00:38:06] Speaker 00: and perform the act. [00:38:10] Speaker 00: Is that understanding of Doolin correct? [00:38:16] Speaker 03: I believe so. [00:38:17] Speaker 03: And I think Doolin was reiterating basic principles of ratification under contract law and such. [00:38:24] Speaker 03: So I would agree with that. [00:38:27] Speaker 03: And I believe that, I'm sorry. [00:38:29] Speaker 00: So let's just take the Connor memorandum. [00:38:35] Speaker 00: So could Connor, under Doolin, ratify the action of Roberts? [00:38:46] Speaker 03: Yes, because as the Deputy Secretary, his office was, in fact, superior to the Assistant Secretary, Indian Affairs. [00:38:55] Speaker 03: And moreover, he acts with the full authority of the Secretary under the Department Manual provision. [00:39:04] Speaker 00: But what about the regulation? [00:39:07] Speaker 00: The regulation doesn't say, 151.12 doesn't say the secretary or the deputy secretary or the assistant secretary for Indian Affairs. [00:39:18] Speaker 00: It just says the secretary or the assistant secretary for Indian Affairs. [00:39:23] Speaker 03: Right. [00:39:24] Speaker 03: No, I understand. [00:39:25] Speaker 03: And secretary, I mean, we talked about this a little bit at the beginning, being defined as or authorized representative would [00:39:33] Speaker 03: we'd have to argue that under the regulation, he was another authorized representative. [00:39:40] Speaker 00: And, but, but the, but the deputy secretary did not purport to ratify any of Roberts's actions, right? [00:39:51] Speaker 00: You're not arguing that this was an actual ratification here. [00:39:55] Speaker 03: He confirms. [00:39:56] Speaker 03: So looking at the memo at 276 of the joint appendix, um, he confirms, [00:40:04] Speaker 03: the delegated authority that Mr. Roberts had. [00:40:07] Speaker 03: And he says, to the extent it is determined you lack such authority, I hereby ratify and approve any actions you've taken. [00:40:14] Speaker 03: Our trial counsel stipulated or made a proffer based on non-record facts that we stand by during the trial proceedings that the decision being challenged here came later in the day on the same day than the Connor memorandum. [00:40:27] Speaker 03: I would have never known, but for that proffer, we stand by it, but we don't think it matters because [00:40:33] Speaker 03: This is demonstrating the evidence that the department intended to vest Mr. Roberts with the full authority, the delegated authority of the assistant secretary. [00:40:46] Speaker 00: And I guess I'm also trying to understand exactly the government's point of view here. [00:40:54] Speaker 00: How are documents that you are insisting are not part of the administrative record [00:41:01] Speaker 00: documents that we should rely upon at all. [00:41:05] Speaker 03: So to be clear, Judge Pillard was correct in identifying them as, although not part of the administrative record we produced, part of the record on summary judgment that was properly before the district court, and it's properly in the joint appendix for this court. [00:41:20] Speaker 03: But as far as them not being in the administrative record, these are documents that we're relying on to cure an alleged deficiency in delegation. [00:41:30] Speaker 03: And as such, I think Doolin in footnote 11 rejects the argument against ratification, that ratification is somehow a post hoc rationalization, saying that, well, ratification just simply cures the alleged deficiency. [00:41:45] Speaker 03: If there's a deficiency, the court doesn't need to determine that. [00:41:49] Speaker 03: But it's not providing a different basis for the agency's decision, which is really the point of the administrative record rule, to avoid the types of [00:41:58] Speaker 03: concerns about post-hoc rationalizations. [00:42:01] Speaker 03: So I realize that's a lengthy answer, but I don't believe that the fact that it's not in the administrative record prevents us from relying on the document as a matter of, say, harmless error or curative arguments. [00:42:16] Speaker 01: Thank you. [00:42:17] Speaker 01: All right, we'll hear from Ms. [00:42:19] Speaker 01: Ellsworth. [00:42:22] Speaker 06: Good morning, Your Honors. [00:42:23] Speaker 06: Jessica Ellsworth on behalf of Wilton Rancheria. [00:42:27] Speaker 06: Picking up on your question, Judge Wilkins, about the documents that counsel for the other side said were not part of the administrative record, I think it's important to understand how this case developed in the district court. [00:42:40] Speaker 06: which is that the plaintiffs moved for summary judgment on this claim of non-final decision before there was an administrative record. [00:42:48] Speaker 06: They moved for this and said their claim did not depend on administrative record and was independent of, didn't need to wait for, should be resolved before any administrative record was produced. [00:43:00] Speaker 06: All three of the documents, the two decisions by Mr. Black and the Connor memorandum, were included by the plaintiffs in the summary judgment briefing. [00:43:11] Speaker 06: They are what was before the district court when Judge McFadden had to decide if this was a final decision. [00:43:18] Speaker 06: So whether or not they were in the later produced administrative record to resolve different claims is really irrelevant to this question about whether they are properly considered on the claim for which they were submitted when the district court looked at them. [00:43:33] Speaker 06: Secondly, I heard standups counsel tell Judge Pillar that one of the problems is that people won't know if a decision is final if the delegation is permitted beyond the ISIA. [00:43:48] Speaker 06: That's not true for a number of reasons. [00:43:50] Speaker 06: And I think standups own conduct here shows that they knew the decision here [00:43:55] Speaker 06: was final. [00:43:56] Speaker 06: It said on its face that it was final. [00:43:59] Speaker 06: And if a decision is not final, the regulation specifies that it has to be accompanied by information about how to administratively exhaust. [00:44:09] Speaker 06: So if that information isn't provided, then the time for filing administrative appeal [00:44:16] Speaker 06: doesn't start running. [00:44:18] Speaker 06: And there are certain notice provisions. [00:44:20] Speaker 06: That's really what 151.12 was designed to do when it was promulgated in 2013, was provide some additional clarity to parties about these two paths for trust decisions that are in fact the same two paths that Interior uses for all of its other decisions. [00:44:41] Speaker 06: I think that's critical to understand when looking at this delegation issue. [00:44:45] Speaker 00: But if, but if, if a, if a decision doesn't say by the author, I am signing this under authority delegated to me as the assistant secretary for Indian affairs, as if I am the exist assistant secretary, then how is, [00:45:14] Speaker 00: a party at that time going to know that that decision is not final. [00:45:19] Speaker 00: I'm sorry, is final as opposed to a decision that falls within 15112D. [00:45:26] Speaker 06: So, Your Honor, I think one of the principal reasons is if you look at 151.12 C-IIII, it includes information that has to be done for a final decision when it approves a request. [00:45:43] Speaker 06: And what it requires to be done is that the land is immediately acquired [00:45:48] Speaker 06: into trust on the date, on or after the date the decision is issued. [00:45:52] Speaker 06: And this decision specifically directs that the land be immediately acquired into trust. [00:45:57] Speaker 00: That is- I understand that they acted as if it was final, but whether, you know, just because a party acts as if they're complying with the law doesn't really control whether they really are. [00:46:14] Speaker 00: If the regulation says that the only person who can make this decision is the secretary or the assistant secretary for Indian Affairs and the person who makes the decision doesn't purport to be either one of those. [00:46:30] Speaker 06: So Your Honor, two responses to that. [00:46:32] Speaker 06: The first is that I think the Mango case from the Second Circuit and the Ethicon Endo case from the Federal Circuit are very helpful in understanding that the mention of a particular individual is not an exclusion of delegation to others. [00:46:49] Speaker 06: And I would [00:46:50] Speaker 06: suggest that those courts and the way that they distinguish Giordano is very useful for this case. [00:46:57] Speaker 06: The other decision, there's a Crawford Hall decision from the Central District of California looking at a different subdelegation by the ASIA in which the court reaches a different conclusion about that provision but spends pages explaining why the subdelegation here was properly done. [00:47:17] Speaker 06: And it goes through a number of factors, including this presumption that you were discussing, um, with standups council. [00:47:24] Speaker 06: And I think the presumption is, is one of the factors that weighs in favor here of sub delegation. [00:47:31] Speaker 00: Should there be a presumption when you have a federal vacancies reform act that Congress, um, you know, puts limitations on, um, [00:47:43] Speaker 00: on the executive's abilities to have acting officials based on exclusive functions. [00:47:54] Speaker 00: So we're supposed to have a presumption that nothing that officials do is really exclusive. [00:48:03] Speaker 06: So Your Honor, I want to push back on the premise of your question, because what we are arguing is consistent with the way the Federal Vacancy Reform Act defines exclusive functions. [00:48:13] Speaker 06: And there are statutes and there are regulations in which the Department of the Interior has made clear that Congress or the Department of Interior has made clear that subdelegation is not permissible. [00:48:26] Speaker 06: The district court quoted five of them in its decision. [00:48:31] Speaker 06: We provided a number of them in our brief. [00:48:33] Speaker 06: The government provided some others in their brief. [00:48:36] Speaker 06: It is the exception rather than the rule that something is not delegable. [00:48:41] Speaker 06: That is the choice that Congress made in the Federal Vacancies Reform Act. [00:48:45] Speaker 06: That choice applies uniformly to statutes and to regulations. [00:48:50] Speaker 06: And this court in the Mobley decision, which involved a delegation through an executive order, specifically said, sub-delegation to a subordinate federal official is presumptively permissible, absent affirmative evidence in the original delegation of a contrary intent. [00:49:09] Speaker 06: The only thing they've pointed to here that they say is affirmative evidence of a contrary intent is the mentioning of the Assistant Secretary. [00:49:19] Speaker 06: But that's where it matters that there are two paths. [00:49:22] Speaker 06: There have long been two paths. [00:49:24] Speaker 06: If you look at the preamble for when this 2013 regulation [00:49:28] Speaker 06: was promulgated, it explains that the whole point of this is to apply the existing regulations for all ASIA and BIA decisions to trust decisions. [00:49:40] Speaker 06: And that is spelled out in 25 CFR 2.6. [00:49:44] Speaker 06: They're taking the same rules that have always been at play for these two paths, one of which is through the Assistant Secretary, Indian Affairs Office. [00:49:52] Speaker 06: That's a secretarial office. [00:49:54] Speaker 06: You can see – if you look at the departmental manual org chart, you can see that the principal deputy is the second in command of everything that happens in that office. [00:50:04] Speaker 06: And then you have a separate path, which is through BIA officials. [00:50:08] Speaker 06: And the BIA is a separate bureau. [00:50:10] Speaker 06: run as part of the secretary's office. [00:50:13] Speaker 06: And then there have always been these two paths. [00:50:16] Speaker 06: The Department of the Interior's Board of Indian Appeals has interpreted that authority as being delegable, the assistant secretary's authority, in two decisions. [00:50:28] Speaker 06: That is the Forest County Potawatomi community decision and the Rama Navajo chapter decision. [00:50:34] Speaker 06: District courts have interpreted that assistant secretary authority as being delegable. [00:50:39] Speaker 06: That's the Shadokoke Tribal Nation decision from Connecticut, the District of Connecticut in 2008, and the Sokogon Chippewa Community Decision from the Western District of Wisconsin in 1996. [00:50:51] Speaker 06: Judge McFadden looked at all of these things, the long-standing understanding [00:50:56] Speaker 06: the interior has had about what is delegable, that it is consistent with FEVRA, that this is like mango and ethicon endo in identifying an individual to make clear they have authority and to help spell out that there are these two paths, but not to preclude further delegation. [00:51:15] Speaker 06: And then you have the departmental manual, which since 2003 has made clear that the principal deputy [00:51:21] Speaker 06: exercises all of the authority that the Assistant Secretary has that's delegable. [00:51:27] Speaker 06: So you have all of these factors pointing in the same direction. [00:51:30] Speaker 06: You layer on that the Connor memorandum, you layer on that the two decisions by Mr. Black. [00:51:36] Speaker 06: There is every indication in this record that it was intended by Interior that this be a final decision, that stand-up would be able to challenge that final decision, [00:51:47] Speaker 06: in federal court, which they have in fact done, that they did not need to administratively exhaust. [00:51:53] Speaker 06: And that is really the point here is for parties to know, do we have to administratively exhaust or not? [00:51:58] Speaker 06: They did not. [00:52:00] Speaker 05: How far do we have to go? [00:52:01] Speaker 05: We have to go to the manual or do we have to go to the Connor decision in order to have, you know, cross all the T's and dot all the I's? [00:52:12] Speaker 06: Frankly, Your Honor, I think you can go to either. [00:52:14] Speaker 06: The district court looked to the departmental manual. [00:52:16] Speaker 06: I think the language is clear in the departmental manual. [00:52:19] Speaker 06: You can see it. [00:52:19] Speaker 05: Is there an exercise of the power to delegate, or is that just describing the power? [00:52:25] Speaker 05: In other words, don't we have to point to an exercise of that power, of the power to delegate? [00:52:30] Speaker 06: So the departmental manual, Your Honor, when you look at it specifically says that the principal deputy assistant secretary may exercise the authority delegated in 209, departmental manual 8.1. [00:52:44] Speaker 06: And so I think there is the language that you're looking for. [00:52:47] Speaker 06: And it is found in the departmental manual. [00:52:50] Speaker 06: The Connor Memorandum, I think, is an alternative way of reaching the same conclusion. [00:52:54] Speaker 06: As Mr. Toth told you, the Connor Memorandum specifically says that it is to confirm that Mr. Roberts [00:53:02] Speaker 06: had the authority to exercise the functions and duties that FIVRA allows to be delegated to him, the non-exclusive duties that the department intended him to have those, that is what he was exercising. [00:53:16] Speaker 06: And I would note the departmental manual was in place when this regulation was amended in 2013. [00:53:22] Speaker 06: So I think everyone's understanding from the government, if you look at court decisions, you look at the Board of Indian Appeals, you look at the way the secretary addressed this in the preamble, no one has ever suggested that there is a limitation in this provision on what the assistant secretary can delegate to the principal deputy. [00:53:47] Speaker 06: In 2005, just to make one more point on this, in 2005, [00:53:51] Speaker 06: the assistant secretary asked the Department of Interior's solicitor to identify all of the statutes and regulations that were the FIVRA duties. [00:53:59] Speaker 06: Essentially, what could the assistant secretary not delegate? [00:54:03] Speaker 06: And that memorandum from the solicitor is in the record. [00:54:08] Speaker 06: And it did not conclude that there was any limitation on the authority in 2.6, which was at the time what set out the two different paths. [00:54:17] Speaker 06: So I think that's yet another [00:54:20] Speaker 06: factor that the court can look to in understanding that there's nothing in the purpose, the text, the structure of these two paths that intends for only the assistant secretary to perform the act. [00:54:35] Speaker 06: As the district court noted, that would lead to absurd results because one of the things that the assistant secretary is required to do or the secretary [00:54:42] Speaker 06: is to provide notice, to publish in the federal register a notice of the decision, and to actually acquire the land and to trust. [00:54:52] Speaker 06: And there's no suggestion that really it has to be the assistant secretary who goes out and takes... But that's, I think, a straw man. [00:55:01] Speaker 00: I mean, delegation is different than just having an agent do something for you. [00:55:11] Speaker 00: I mean, we issue decisions and only we are authorized to issue decisions, but we have a clerk's office that does it for us. [00:55:21] Speaker 00: That doesn't mean that we've delegated any authority to the clerk's office. [00:55:26] Speaker 00: I mean, the secretary does lots of things and the secretary has assistants acting as his or her agents to do them. [00:55:37] Speaker 06: So your honor and the principal deputy assistant secretary is the person identified as the agent who is real, who is the second in command and who when there is a vacancy has all of the assistant secretary's authority. [00:55:51] Speaker 06: So we think that's just further confirmation that here, sub-delegation is permissible. [00:55:58] Speaker 00: They have the principal deputy has that authority for the time period that Congress says that that person has that authority, right? [00:56:09] Speaker 06: Well, Your Honor, I think there's an important [00:56:13] Speaker 06: nuance that maybe we're missing in our dialogue, which is that for 210 days, when someone is in an acting role, they have all of the authority. [00:56:23] Speaker 06: for the exclusive and non-exclusive duties, all of them. [00:56:28] Speaker 06: They can do everything. [00:56:29] Speaker 06: Once that 210 days pass, they can no longer do the exclusive duties and functions. [00:56:35] Speaker 06: So there is a subset of authority they lose, but the remainder of the authority remains with them. [00:56:42] Speaker 00: And you've told me that the department's view is that the assistant secretary has no exclusive duties, right? [00:56:55] Speaker 00: not a single one. [00:56:57] Speaker 06: No, that's not true, Your Honor. [00:56:59] Speaker 06: And I'm sorry if I suggested something to the contrary. [00:57:02] Speaker 06: The district court gave five examples of those at JA 340. [00:57:07] Speaker 06: We've provided a couple additional examples in our brief, for example, 43 CFR 3191.2. [00:57:15] Speaker 06: says certain authority relating to oil and gas leases quote shall not be redelegated. [00:57:21] Speaker 06: That is a clear example where the presumption of delegate delegability would not apply because the regulation says otherwise. [00:57:28] Speaker 06: Similarly, 43 CFR [00:57:31] Speaker 06: 20-202b1 says that certain authority about imposing disciplinary action, quote, may not be redelegated. [00:57:41] Speaker 06: This is the kind of language that the solicitor was looking for. [00:57:44] Speaker 06: And if you look at the [00:57:46] Speaker 06: Solicitor's memo from 2005, which is in the record at JA 286, the Solicitor explains how they approach this question about which of the ASIA's delegated authority is further subdelegable and which is not. [00:58:04] Speaker 00: I understand that. [00:58:05] Speaker 00: I guess I didn't state my question or comment properly. [00:58:12] Speaker 00: Nothing is exclusive unless the agency says it is. [00:58:19] Speaker 00: That's the position, right? [00:58:22] Speaker 06: I think the strongest way for it to be clear is when the agency says it is. [00:58:27] Speaker 06: Giordano shows that there can be instances where [00:58:31] Speaker 06: The court may need to resort to understanding the purpose in order to reach that conclusion or looking to legislative history to reach that conclusion. [00:58:41] Speaker 06: But this is not a situation where any of those factors that the Giordano court looked to are applicable. [00:58:49] Speaker 06: So although express language is one way and the easiest way for Congress or for the Secretary to make it clear, I think there are other ways to overcome the presumption as well. [00:59:00] Speaker 06: None of them are met here. [00:59:02] Speaker 06: And again, this is like the Mango and the Ethicon Endo case, where the mere naming of an official is not a sufficient basis on its own. [00:59:11] Speaker 06: to show that there is an intent to prohibit that official from subdelegating consistent internal subdelegations. [00:59:19] Speaker 06: That's the line that this court has consistently drawn. [00:59:23] Speaker 06: Internal subdelegations that keep responsibility at the named official are presumptively permissible. [00:59:31] Speaker 06: When a delegation goes outside of the internal chain of command, that's where this court has said that the delegations are impermissible. [00:59:40] Speaker 06: For example, in the Shook case from this court back in 1998, there was a situation where the Department of Education tried to delegate to an outside board of trustees. [00:59:51] Speaker 06: And what this court said was that was not permissible because it was not this kind of internal keeping accountability and responsibility with the named official. [01:00:01] Speaker 06: This is not that case. [01:00:03] Speaker 06: This is a case where the subdelegation was internal. [01:00:06] Speaker 06: It was to the second in command. [01:00:09] Speaker 06: It was consistent with the departmental manual. [01:00:12] Speaker 06: It was confirmed by the Connor Memorandum. [01:00:15] Speaker 06: It was further confirmed by Mr. Black in the new administration, agreeing that this was intended to be a final decision, citing the departmental manual to explain why Mr. Roberts had final decision-making authority because he stood in the shoes of the ASIA for this particular action. [01:00:34] Speaker 06: And then Stand Up got their appeal. [01:00:37] Speaker 06: I mean, really, I think it's important to sort of step back and remember that the point here is to make sure parties have notice of how to appeal. [01:00:46] Speaker 06: And there's no question here, Stand Up got its appeal. [01:00:49] Speaker 06: It got to bring its NEPA challenge. [01:00:51] Speaker 06: It got to bring its CRA challenge. [01:00:54] Speaker 06: And those challenges were resolved by the district court. [01:00:57] Speaker 06: It got to appeal those challenges to you. [01:00:59] Speaker 06: So everything that the regulation was designed to do, which is to give notice of how to get judicial review of an action, was met. [01:01:11] Speaker 06: And so for all of these reasons on this and on the NEPA and the CRA count, we ask that this court affirm the decision below. [01:01:20] Speaker 01: All right. [01:01:20] Speaker 01: Thank you. [01:01:20] Speaker 01: We'll give Ms. [01:01:22] Speaker 01: McLean two minutes for rebuttal. [01:01:27] Speaker 04: Thank you, Your Honor. [01:01:28] Speaker 04: Just a few points. [01:01:30] Speaker 04: The cases that counsel for Welton Rancheria cite all relate to statutes. [01:01:36] Speaker 04: And so to the extent that there is any reason to treat them differently, and we believe that there is, including when a regulation is very specific and who is assigned what responsibility and the consequences of those decisions, [01:01:51] Speaker 04: The analysis in those cases do not control here. [01:01:56] Speaker 01: I don't understand why the statute would have a presumption, but a regulation wouldn't. [01:02:04] Speaker 01: I mean, I must say, I think it should be the opposite. [01:02:07] Speaker 01: With respect to a regulation, there is still a secretary, there's still a deputy secretary. [01:02:13] Speaker 01: Presumably, if somebody below them acts in a way that they don't want them to act, they can stop them. [01:02:20] Speaker 01: It's much harder for Congress to do that. [01:02:23] Speaker 01: So I don't see what the argument even is to suggest that the presumption doesn't apply with respect to internal organization of a department. [01:02:34] Speaker 01: Well, when a department makes decisions as to the finality of... I understand the finality argument, but the finality argument is, as they say, one about exhaustion. [01:02:44] Speaker 01: Usually, appellants are up here claiming, this is final. [01:02:48] Speaker 01: We want to appeal. [01:02:49] Speaker 01: We don't need to stay in the agency anymore. [01:02:51] Speaker 01: They're not going to give us what we want. [01:02:54] Speaker 01: And so this is usually the analogy question. [01:02:58] Speaker 01: This is a benefit rather than a burden. [01:03:01] Speaker 01: And I haven't heard any respect in which you've indicated it was a burden you discussed for some time, the notice question. [01:03:07] Speaker 01: But I don't see how the lack of notice, if there was one, injured you in any way. [01:03:12] Speaker 01: You did what you would do if it's final. [01:03:17] Speaker 04: Council for the department and for the tribe represented that we had our administrative appeal. [01:03:25] Speaker 04: An administrative appeal before the IAEA is different from an appeal in court and also involves staying in the transfer, the transfer of land can't occur while that appeal is pending. [01:03:38] Speaker 01: Okay, but that time has passed. [01:03:40] Speaker 01: I don't understand. [01:03:41] Speaker 01: You think you would have gotten a better deal from the Bureau than you would from the [01:03:46] Speaker 01: Is it the Bureau of the Board, Compute Board? [01:03:49] Speaker 04: The Interior Board of Indian Appeals. [01:03:50] Speaker 01: Yeah. [01:03:52] Speaker 01: Then you would from a court. [01:03:53] Speaker 01: They can't make a decision that's inconsistent with what the policymakers from a policy point of view think. [01:03:59] Speaker 01: So I don't understand how you would benefit from an internal appeal. [01:04:05] Speaker 01: And you certainly haven't told us how. [01:04:09] Speaker 04: I think, well, one of the big issues is [01:04:13] Speaker 04: It mattered to stand up at that time because there were state proceedings pending a California Environmental Quality Act case was pending. [01:04:21] Speaker 04: And by immediately transferring the land into trust the citizens no longer had the right to pursue the claims that they had in state court because the state court lost jurisdiction. [01:04:33] Speaker 04: So from their perspective. [01:04:34] Speaker 04: it was important that if a final decision was going to be made, it'd be made by a PAS officer with the authority to make that decision so that they could continue their state proceedings while they also proceeded to appeal the NEPA documentation. [01:04:51] Speaker 01: Is there any indication in the federal notice that established this dual [01:04:58] Speaker 01: approach that the purpose here is to provide that opportunity rather than to just provide notice of when something's final? [01:05:07] Speaker 04: Well, the regulation is very clear that only a few decisions will be handled by an assistant secretary because those decisions raise significant policy questions and require additional layers of review. [01:05:23] Speaker 04: The purpose of the regulation wasn't simply to indicate whether a decision was final or not. [01:05:31] Speaker 04: It also creates other obligations. [01:05:34] Speaker 04: For example, the immediate transfer of land into trust, which occurred in February. [01:05:39] Speaker 04: It also requires publication in the Federal Register, which never occurred at all. [01:05:43] Speaker 04: The department has never actually published a notice of this decision per the regulations. [01:05:49] Speaker 04: To the extent there was question of it. [01:05:50] Speaker 01: You knew of the decision. [01:05:51] Speaker 01: So I appreciate the general value of publication. [01:05:57] Speaker 01: But generally, when somebody makes a complaint that it wasn't published, that's for the question of whether it's final yet and whether or not they're injured by lack of notice. [01:06:09] Speaker 01: And both of those are taken care of here. [01:06:13] Speaker 01: I'm not sure, it'll be one thing if this was a rule that's gonna go on and apply to others, but it's not, it's a decision in an individual case. [01:06:21] Speaker 04: Well, I do think it's a rule that will apply to others, your honor, in the sense that you have a regulation 25 CFR 2.4 that says any decision by a deputy is non-final and subject to appeal to the IBIA. [01:06:36] Speaker 04: You have 2.6 that says only decisions by the assistant secretary are final. [01:06:41] Speaker 04: And you have 25 CFR 151.12 that the defendants concede is intended to mirror those appeal regulations, which a district court in California interpreted as being exclusive. [01:06:58] Speaker 04: And so there, I think that there is a very real public interest in ensuring that before the department makes a trust decision and immediately acquires land that would precipitate the immediate acquisition of land and trust, it be done by an official that has the authority to do it. [01:07:17] Speaker 04: And in this case, what the regulations establish [01:07:21] Speaker 04: is that that person should be a PAS officer, the assistant secretary. [01:07:26] Speaker 04: And it's very clear in the preamble to the rule that only a few decisions are intended to be made by the assistant secretary because those decisions are important and all others are intended to go to the IBIA so that the department can ensure that its decision making is consistent and people can get their administrative [01:07:48] Speaker 04: appeal rights satisfied. [01:07:50] Speaker 04: So I do think there's a very important interest here. [01:07:57] Speaker 01: Okay, are there further questions? [01:08:00] Speaker 05: Thank you. [01:08:02] Speaker 01: Thank you very much. [01:08:03] Speaker 01: This was another very good argument today. [01:08:04] Speaker 01: We appreciate it. [01:08:05] Speaker 01: Thank you.