Stand Up for California ! v. United States Department of the Interior

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2020 Decided April 16, 2021
No. 19-5285
S TAND UP FOR C ALIFORNIA !, ET AL.,
APPELLANTS
v.
UNITED S TATES D EPARTMENT OF THE INTERIOR , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00058)
Jennifer A. MacLean argued the cause for appellants.
With her on the briefs was Benjamin S. Sharp.
Brian C. Toth, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Jeffrey Bossert Clark, Assistant Attorney General, Eric
Grant, Deputy Assistant Attorney General, and Mary Gabrielle
Sprague, Attorney.
Jessica L. Ellsworth argued the cause for appellee Wilton
Rancheria, California. With her on the brief was Benjamin A.
Field. Neal K. Katyal entered an appearance.

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Before: GARLAND*, P ILLARD and WILKINS , Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS .
WILKINS , Circuit Judge: This appeal comes after a seven-
year effort by the Department of the Interior (“Department”) to
acquire land in trust on behalf of the Wilton Rancheria
(“Wilton” or “Tribe”) to build a casino. After the Department
finalized the acquisition of a parcel of land in Elk Grove,
California, Stand Up for California! (“Stand Up”), Patty
Johnson, Joe Teixeira, and Lynn Wheat (collectively
“Appellants”) sued the Department. They brought a litany of
claims, including claims that the Department (1) impermissibly
delegated the authority to make a final agency action to acquire
the land to an official who could not wield this authority, (2)
was barred from acquiring land in trust on behalf of Wilton’s
members, and (3) failed to adhere to its National
Environmental Protection Act obligations when it selected the
Elk Grove location. Appellants and the Department cross-
moved for summary judgment, and the District Court granted
the Department’s motions on all counts. For the reasons set
forth below, we affirm the District Court.
I.
The Wilton Rancheria is an Indian tribe based in the
Sacramento area.1 Wilton’s members are descendants of
* Judge Garland was a member of the panel at the time this case was
submitted but did not participate in the final disposition of the case.
1 A rancheria is a small Indian settlement in California. See Stand
Up for California! v. U.S. Dep’t of Interior, 879 F.3d 1177, 1179
(D.C. Cir. 2018); William Wood, The Trajectory of Indian Country
in California: Rancherías, Villages, Pueblos, Missions, Ranchos,

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Miwok and Niensen speakers. As with its general policy
regarding tribal sovereignty, the federal government’s
approach to Wilton has gone through “drastic fits and starts,”
vacillating “between coercing assimilation and encouraging
tribal self-government.” Philip P. Frickey, Congressional
Intent, Practical Reasoning, and the Dynamic Nature of
Federal Indian Law, 78 C ALIF . L. R EV. 1137, 1138 (1990).
Wilton was first federally recognized in 1927, when Congress
initiated a program that provided land to Indians who were not
on reservations. After Congress passed the Indian
Reorganization Act in 1934, Wilton adopted a constitution.
In 1958, however, Congress disestablished Wilton and
forty other reservations through the California Rancheria Act
(“Rancheria Act”). Pub. L. No. 85–671, 72 Stat. 619 (1958).
The Rancheria Act directed the Secretary of the Interior
(“Secretary”) to dissolve the trusts in which the Secretary held
land for forty-one rancherias and tribes, including Wilton, and
to distribute the assets. The Secretary was directed to consult
with the affected tribes and prepare a plan to distribute the
assets or to sell the assets and distribute the profits to the
affected tribes’ members. Pursuant to this mandate, the
Secretary terminated the government-to-government
relationship with Wilton and began consultations with the
Tribe’s members to transfer federal land trust ownership to
individual fee ownership. In 1959, the Department approved a
distribution plan that would terminate the federal trusteeship of
the Tribe, distribute the assets to the Tribe’s members, and
revoke the Tribe’s constitution and bylaws. Once the Tribe’s
assets had been distributed, the distribution agreement
stipulated that the Tribe’s members were no longer entitled to
the federal government’s services because of their status as
Indians. In 1964, the Department announced in the Federal
Reservations, Colonies, and Rancherias, 44 TULSA L. REV. 317, 319
(2008).

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Register that the Wilton Tribe’s members were no longer
entitled to services reserved for Indians. Termination of
Federal Supervision, 29 Fed. Reg. 13,146 (Sept. 15, 1964).
In 1979, members of several California rancherias,
including Wilton members, brought a class action against the
Department for unlawfully terminating the federal
government’s trust relationship with their tribes. Four years
later, the government settled and “agree[d] to ‘restore[] and
confirm[]’ Indian status for some who had lost it” pursuant to
the Rancheria Act, including seventeen tribes that had lost their
tribal status under the Act. Stand Up for California! v. U.S.
Dep’t of Interior, 879 F.3d 1177, 1184 (D.C. Cir. 2017)
(quoting Stipulation for Entry of Judgment, Hardwick, No. C-
79-1710-SW, ¶¶ 2–4 (Aug. 3, 1983)). But Wilton was
excluded from the settlement agreement because the district
court mistakenly concluded that “[n]o class member from
[Wilton] currently owns property within the original rancheria
boundaries.” Wilton Miwok Rancheria v. Salazar, 2010 WL
693420, at *2 (N.D. Cal. Feb. 23, 2010) (quoting Certificate of
Counsel re Hearing on Approval of Settlement of Class
Actions, Hardwick, No. C-79-1710-SW (Nov. 16, 1983)).
Almost forty years later, members of the Tribe sued the
Department, seeking federal recognition of the Wilton
Rancheria and the acquisition of certain land into trust by the
government on the Tribe’s behalf. Id. at *3. Two years later,
the Tribe and the government entered into a settlement
agreement. The Department acknowledged that “the United
States failed to comply with the Rancheria Act in terminating
the Wilton Rancheria and distributing its assets.” Id. The
Department thus recognized that the Tribe was not lawfully
terminated. The Department also agreed to restore federal
recognition of the Tribe and to “accept in trust certain lands
formerly belonging to” Wilton. Id. at *3. In June 2009, the
district court in California entered the settlement agreement as

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a stipulated judgment. After the case settled, the Department
published notice of the restoration of Wilton’s status as a
federally recognized tribe. Since then, the Wilton Rancheria
has been listed on the Department’s annual list of federally
recognized tribes.
In 2013, Wilton petitioned the Department to acquire land
in trust on the Tribe’s behalf so that it could build a casino. The
Tribe proposed a 282-acre plot near Galt, California. Pursuant
to the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321–4347, the Department began the process to assess the
environmental effect a casino would have. After soliciting
public comment, the Department published a scoping report for
its environmental impact statement (“EIS”). The scoping
report identified seven alternatives for the land acquisition,
including a 30-acre parcel in Elk Grove and the Galt site, which
the report described as Wilton’s “proposed action,” see 40
C.F.R. § 1502.14; 43 C.F.R. § 46.30, but it did not identify a
preferred alternative. See 43 C.F.R. § 46.420(d) (defining the
“preferred alternative” as the alternative that the agency
“believes would best accomplish the purpose and need of the
proposed action while fulfilling its statutory mission and
responsibilities, giving consideration to economic,
environmental, technical, and other factors”). Two years later,
the Department published the draft EIS, where it considered the
alternatives in detail. It then held a public hearing on the draft
EIS. At the hearing, multiple parties—including one of the
plaintiffs in this litigation—spoke in favor of the Elk Grove
location. Following the hearing, Wilton changed its preference
and submitted a request that the Department acquire the Elk
Grove location rather than the Galt location.
In November 2016, the Department requested comment
from interested parties about a potential casino in the Elk Grove
location. The list of notified parties included the State of
California, the City of Elk Grove, and Stand Up. Stand Up

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responded that transferring title to the Elk Grove location
would moot multiple pending state-court challenges seeking to
prevent the acquisition and urged the Department to delay title
transfer. The Department denied Stand Up’s request. The
Department then published its final EIS, which identified the
Elk Grove location as the preferred alternative.
On January 19, 2017, the Department issued a Record of
Decision (“ROD”) that constituted the final agency action to
acquire the Elk Grove location in trust on Wilton’s behalf.
Lawrence Roberts—the Principal Deputy Assistant Secretary–
Indian Affairs—signed the ROD pursuant to delegated
authority. Roberts had served as Acting Assistant Secretary–
Indian Affairs (“AS–IA”), but after his acting status lapsed
pursuant to the Federal Vacancies Reform Act (“FVRA”),
Roberts continued to exercise the non-exclusive functions and
duties of the AS–IA. The same day Roberts issued the ROD,
then-Deputy Secretary Michael Connor had issued a
memorandum (“Connor Memorandum”) that sought to clarify
that Roberts was exercising non-exclusive functions and duties
of the AS–IA. On February 10, the Department acquired title
to the Elk Grove location. Michael Black, who had assumed
the role of Acting AS–IA in the new presidential
administration, signed off on this acquisition after denying
Stand Up’s administrative appeal for a stay pending judicial
review.
Appellants brought this lawsuit prior to the issuance of the
Department’s ROD and sought a temporary restraining order,
which the District Court denied. Appellants’ lawsuit alleged,
inter alia, that (1) the FVRA and Department regulations
precluded the Principal Deputy from exercising the authority
to sign off on the ROD acquiring the Elk Grove land in trust;
(2) Principal Deputy Roberts was acting without authority
when he acquired the title in trust for the Tribe; (3) the
Department could not acquire land in trust on behalf of

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Wilton’s members pursuant to the Rancheria Act; and (4) the
Department violated NEPA and the APA by failing to prepare
a supplemental or new EIS after it selected the Elk Grove
location as its preferred alternative. Wilton intervened on
behalf of the Department. After the parties cross-moved for
summary judgment, the District Court granted the
Department’s summary judgment motions. This appeal
followed.
We review the District Court’s grant of summary
judgment de novo. W. Surety Co. v. U.S. Eng’g Constr., LLC,
955 F.3d 100, 104 (D.C. Cir. 2020). We “evaluat[e] the
administrative record directly and invalidat[e] the
Department’s actions only if, based on that record, they are
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” Stand Up!, 879 F.3d at 1181
(internal quotation omitted).
II.
We begin with Appellants’ challenge to the Department’s
redelegation of final decision-making authority to the Principal
Deputy. First, Appellants claim that the regulation in question
prohibits redelegation beyond the AS–IA. Second, Appellants
argue that even if the regulation permitted redelegation, the
Department failed to properly redelegate this power to
Principal Deputy Roberts.
We reject both of Appellants’ challenges. First, the text,
structure, and purpose of the regulation confirm that the
Department has the power to redelegate final decision-making
authority. Second, the Department properly redelegated the
final decision-making authority to Principal Deputy Roberts.
We therefore affirm the District Court’s grant of summary
judgment to the government on these claims.

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A.
The Bureau of Indian Affairs (“BIA”) has promulgated
regulations governing who can make land acquisitions on
behalf of Indian tribes. The regulations define “Secretary” as
“the Secretary of the Interior or authorized representative.” 25
C.F.R. § 151.2. The Secretary must review each request for the
acquisition of land. 25 C.F.R. § 151.12(a). Section 151.12(c)
states that “[a] decision made by the Secretary, or the [AS–IA]
pursuant to delegated authority, is a final agency action.” 25
C.F.R. § 151.12(c). In contrast, Section 151.12(d) provides
that “[a] decision made by a [BIA] official pursuant to
delegated authority is not a final agency action of the
Department . . . until administrative remedies are exhausted.”
Id. § 151.12(d).
To determine whether redelegation of final decision-
making authority is permissible, we must first assess whether
the power is an exclusive function or duty of the Secretary or
the AS–IA. The FVRA forecloses the delegation of exclusive
duties and authorities to a successor official after expiration of
the statutorily authorized 210-day period of acting-capacity
service. The FVRA also establishes that a function or duty is
exclusive when it is either “established by statute, and . . .
required by statute to be performed by the applicable officer
(and only that officer)” or when it “is established by regulation
and . . . is required by such regulation to be performed by the
applicable officer (and only that officer).” 5 U.S.C. §
3348(a)(2)(A)–(B).2 If Congress wants to make clear that a
2 Although Appellants have not raised their FVRA claims on appeal,
the statute still provides guideposts to which we should adhere in
analyzing the challenge to delegated authority. Cf. United Sav. Ass’n
of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365,
371 (1988) (“[C]onstruction . . . is a holistic endeavor. A provision
that may seem ambiguous in isolation is often clarified by the

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function or duty is exclusive, it may do so through clear
statutory mandates. See, e.g., 25 U.S.C. § 3407(a) (“The
Secretary shall have exclusive authority to approve or
disapprove a plan submitted by an Indian tribe . . . .” (emphasis
added)). Alternatively, as the Supreme Court recognized in
United States v. Giordano, a statute may foreclose redelegation
when its text, “fairly read” in light of the statutory purpose,
evinces a congressional desire to render a function or duty
exclusive and non-redelegable. 416 U.S. 505, 514 (1974).
Should Congress remain silent on the issue, however, the
FVRA provides the Executive Branch with leeway to set out
which functions or duties are exclusive and which are not. See
5 U.S.C. § 3348(a)(2)(A)–(B); see also FEDERAL VACANCIES
R EFORM ACT OF 1998, S. Rep. No. 105–250, at 31 (“We must
be clear that the non-delegable duties we intend to have
performed only by the agency head in the event of a vacancy
. . . are only those expressly vested by law or regulation
exclusively in the vacant position. In this regard, we
acknowledge and appreciate the Majority’s statement that ‘all
the normal functions of government thus could still be
performed.’”). Appellants do not argue that any statute vests
exclusive authority with the Secretary or the AS–IA, and we
are unaware of any such statute. We must therefore determine
whether the Department itself has cabined this authority.
Relying on the text of Section 151.12, Appellants argue
that the Department has restricted final decision-making
authority to the Secretary or to the AS–IA. Appellants contend
that because Section 151.12(c) provides that final decisions can
be made by the AS–IA “pursuant to delegated authority,” while
Section 151.12(d) sets out the procedures for non-final
decisions made by BIA officials, the Department has made
remainder of the statutory scheme . . . because only one of the
permissible meanings produces a substantive effect that is
compatible with the rest of the law.”).

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final decision-making authority an exclusive function. We
disagree. While Section 151.12 certainly contemplates that the
actions of the Secretary and the AS–IA will constitute final
agency action, when fairly read, it does not foreclose
redelegation of these duties.
To begin, we hold that, contrary to Appellants’ assertions,
the presumption in favor of redelegability applies to
regulations. We have previously recognized that “[w]hen a
statute delegates authority to a federal officer or agency,
subdelegation to a subordinate federal officer . . . is
presumptively permissible absent affirmative evidence of a
contrary congressional intent.” U.S. Telecom Ass’n v. FCC,
359 F.3d 554, 565 (D.C. Cir. 2004); see also Kobach v. U.S.
Election Assistance Comm’n, 772 F.3d 1183, 1190 (10th Cir.
2014) (“[C]ircuits that have spoken on this issue are unanimous
in permitting subdelegations to subordinates, even where the
enabling statute is silent, so long as the enabling statute and its
legislative history do not indicate a prohibition on
subdelegation.”). And while we have never held that this
presumption applies to regulations, we conclude that it does so
today. Indeed, the presumption in favor of redelegability may
be more appropriate for regulations than it is for statutes
because an agency has many tools to quickly reverse an
unintended redelegation. Should any lower-ranking official
exceed his or her powers and attempt to exercise an exclusive
function or duty pursuant to a redelegation, the Secretary or the
Deputy Secretary could simply invalidate any action taken
pursuant to the claimed authority. In contrast, as a practical
matter it is harder for Congress to claw back any function or
duty that a lower-ranking official exercises contrary to
Congress’s intent to reserve it for the Secretary. And while an
agency could amend its regulations to change which functions
or duties are exclusive, Congress ensured that an agency cannot
suddenly render an exclusive function or duty non-exclusive by
requiring the regulation to be in effect during the 180 days

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preceding any vacancy. 5 U.S.C. § 3348(a)(2)(B)(ii). An
agency thus cannot amend its regulations to render an exclusive
function non-exclusive as an end-run around the restrictions
Congress set for acting officers in the FVRA. Given these
considerations, we hold that the presumption in favor of
redelegability applies to regulations.
With this presumption in mind, we turn to the text. As
with statutes, regulations must be construed holistically. See
Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 356 n.10 (D.C. Cir.
1993); see also Carlson v. Postal Regulatory Comm’n, 938
F.3d 337, 349 (D.C. Cir. 2019) (“[I]n expounding a statute, we
must not be guided by a single sentence . . . but look to the
provisions of the whole law.” (quoting Del. Dep’t of Nat. Res.
& Envtl. Control v. EPA, 895 F.3d 90, 97 (D.C. Cir. 2018))).
Here, the regulatory text provides two methods by which the
Department can acquire land in trust. Section 151.12(d)
contemplates that the decision to take land into trust may be
delegated to a BIA official, but the BIA official’s decision
would be subject to administrative review. 25 C.F.R. §
151.12(d). Alternatively, the Department may acquire the land
in trust through “[a] decision made by the Secretary, or the
[AS–IA] pursuant to delegated authority,” which “is a final
agency action” and not subject to the administrative review
process. Id. § 151.12(c). But the regulation also defines
“Secretary” to include any “authorized representative.” Id. §
151.2(a). Because of this inclusive definition, we conclude that
the regulation’s text, when fairly read, contemplates
redelegation of the Section 151.12(c) authority by the
Secretary.
The Department’s other regulations confirm our reading of
Section 151.12. As other regulations make clear, the
Department knows how to use language that renders a function
or duty exclusive to a particular official. See, e.g., 25 C.F.R. §
33.3 (“The administrative and programmatic authorities of the

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Assistant Secretary–Indian Affairs pertaining to Indian
education functions shall not be delegated to other than the
Director, Office of Indian Education Programs.”); id. §
262.5(a) (“Area Directors may delegate this authority to
Agency Superintendents, but only . . . to those who have
adequate professional support available.”); 43 C.F.R. §
20.202(b)(1) (“Each Ethics Counselor shall . . . [o]rder
disciplinary or remedial action . . . . This authority may not be
redelegated.”). But in promulgating Section 151.12, the
Department refrained from using any similar language.
Appellants argue that the Department shut the door on
redelegation in providing that the AS–IA will act “pursuant to
delegated authority.” 25 C.F.R. § 151.12(c). But this language
pales in comparison to the language the Department typically
uses to bar redelegation. The Department’s decision not to use
such prohibitory language thus supports our conclusion that a
fair reading of the regulation permits redelegation beyond the
AS–IA.
Appellants invoke the expressio unius canon to argue that
the regulation’s explicit mention of the AS–IA forecloses
redelegation beyond the AS–IA. But as we have made clear,
the expressio unius canon “is often misused” because drafters
include duplicative language to ensure “that the mentioned
item is covered—without meaning to exclude the unmentioned
ones.” Shook v. D.C. Fin. Resp. & Mgmt. Assistance Auth., 132
F.3d 775, 782 (D.C. Cir. 1998). Moreover, as the Second
Circuit has recognized, the expressio unius canon carries even
less weight in the redelegation context, where the statute or
regulation “may mention a specific official only to make it
clear that this official has a particular power rather than to
exclude delegation to other officials.” United States v. Mango,
199 F.3d 85, 90 (2d Cir. 1999). Section 151.12(c) is
emblematic of the shortcomings of the expressio unius canon
in the redelegation context. Although the regulation explicitly
mentions the AS–IA, it incorporates the definition of

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“Secretary” from Section 151.2(a) which includes any
“authorized representative.” Nothing else in the regulation’s
text suggests that the Department intended to limit the
redelegation to the AS–IA, and invoking the expressio unius
canon would require us to ignore the regulation’s definition of
“Secretary.” Instead, we believe it a fairer reading of the
regulation that the Department was merely making clear that
the AS–IA had been delegated the authority of final decision-
making, not that the AS–IA alone could exercise this authority.
We therefore decline to apply the expressio unius canon to
Section 151.12.
Section 151.12’s purpose also supports our reading of the
regulation. As with statutes, we may look to the purpose and
drafting history of the regulation to confirm whether our
interpretation of the text comports with the Department’s intent
in promulgating Section 151.12. See U.S. Telecom Ass’n, 359
F.3d at 565; Giordano, 416 U.S. at 514. Here, the
Department’s goal in amending Section 151.12 affirms our
understanding that the Department did not intend to prohibit
redelegation of this function. Section 151.12 was amended in
2013 to “[p]rovide clarification and transparency to the process
for issuing decisions by the Department, whether the decision
is made by the Secretary, [AS–IA], or a [BIA] official.” Land
Acquisitions: Appeals of Land Acquisition Decisions, 78 Fed.
Reg. 67,928, 67,929 (Nov. 13, 2013). The Department was not
focused on who could wield the authority to make final
decisions. Rather, the Department sought to clarify whether an
acquisition of land was final and what means of review were
available to aggrieved parties: The decisions of the Secretary
and AS–IA are final and appealable, it explained, and the
decisions of BIA officials are not. In adopting that rule of
finality, the Department said nothing of the authority of other
Department officials, such as the Deputy AS–IA, to act. And
in any event, finality is a benefit as well as a limitation. Instead
of being required to proceed through the administrative appeals

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process, a decision made under Section 151.12(c) permits
aggrieved parties to immediately seek judicial review before an
Article III court.3 The Department’s purpose in promulgating
Section 151.12 thus confirms that the Department did not seek
to foreclose redelegation of final decisions to acquire land into
trust.
Appellants’ reliance on Giordano is misplaced. There, the
Supreme Court interpreted a statute where Congress provided
that “[t]he Attorney General, or any Assistant Attorney General
specially designated by the Attorney General” could authorize
a wiretap, Giordano, 416 U.S. at 513 (quoting 18 U.S.C. §
2516(1)), but the challenged decision was made by the
Attorney General’s Executive Assistant. Id. Although the
Court concluded that the statute’s text, when “fairly read, was
intended to limit the power to authorize wiretap applications,”
id. at 514, it reached this conclusion after contrasting the
narrow delegation of Section 2516(1) with 28 U.S.C. § 510,
which granted the Attorney General broad authority to delegate
his power. Thus, because the statute in question used narrower
language than the broader delegation, the Court determined
that the Attorney General was restricted in his ability to
delegate his wiretapping authority. In the present case,
however, other regulations show that when the Department
intends to render a function or duty exclusive, it says so clearly.
And unlike the statute at issue in Giordano, see id. at 514–21,
the history of Section 151.12 does not evince an intent by the
drafters to restrict who could wield final decision-making
3 It is also noteworthy that the Department has maintained its position
that this function is redelegable over three presidential
administrations. Appellants stress the breakneck speed that the
Obama administration undertook to finalize the acquisition, but over
four years later, two administrations never wavered from the position
that this authority is redelegable.

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authority, 78 Fed. Reg. at 67,929. We therefore hold that
Section 151.12 permits redelegation beyond the AS–IA.
B.
We next turn to Appellants’ argument that the Department
failed to properly redelegate the final decision-making
authority to Principal Deputy Roberts. Appellants contend that
because the Department did not adhere to the redelegation
procedures set forth in the Departmental Manual, the
redelegation—either through automatic redelegation or
through the Connor Memorandum—was impermissible. We
reject Appellants’ challenge.
Even if violation of the Departmental Manual supported a
third-party claim—which we doubt, see Schweiker v. Hansen,
450 U.S. 785, 789–90 (1981); Chiron Corp. & PerSeptive
Biosystems, Inc. v. NTSB, 198 F.3d 935, 944 (D.C. Cir.
1999)—Appellants’ challenge still fails on its merits. Principal
Deputy Roberts began serving as the Acting AS–IA in January
2016. After his term as AS–IA lapsed pursuant to the FVRA,
Roberts reverted to his position as Principal Deputy. But under
the Departmental Manual, the Principal Deputy “may exercise
the [non-exclusive] authority delegated” to the AS–IA “[i]n the
[AS–IA’s] absence.” 209 DM 8.4A. Appellants attempt to
distinguish an “absence” from a “vacancy,” but they forfeited
this argument by failing to raise it in the District Court. See
Weinstein v. Islamic Republic of Iran, 831 F.3d 470, 483 (D.C.
Cir. 2016) (“To preserve an argument on appeal a party must
raise it both in district court and before us.”). Regardless, for
purposes of delegation under this regulation, a vacancy may be
treated as a type of absence. Appellants’ reliance on other
provisions of the Departmental Manual where the Department
uses the term “vacancy” is misplaced, as those provisions deal
specifically with succession, not redelegation. See 302 DM
1.1. As discussed above, final decision-making authority
pursuant to Section 151.12 is a non-exclusive function, so this

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is not an issue of a succession, but rather an issue of
redelegation. Thus, “absence” can certainly include a
“vacancy” in office, particularly when the functions at issue are
non-exclusive. Therefore, the Department did not violate any
of the provisions by automatically redelegating the AS–IA’s
non-exclusive functions and duties to the Principal Deputy.
In any event, any failure to automatically redelegate this
non-exclusive function was corrected when the Department
issued the Connor Memorandum. The Departmental Manual
acknowledges that it can be superseded by any “appropriate
authority,” including but expressly not limited to “a Secretary’s
order.” J.A. 248 (listing permissible appropriate authority,
“e.g., a change in statute, regulation, or Executive order; a
Secretary’s Order or a court decision; etc.” (emphasis added)).
As the Connor Memorandum explained, the Department
intended for Principal Deputy Roberts to exercise the
nonexclusive functions and duties of the AS–IA, but the
succession order incorrectly identified Roberts’s position. So,
although “[t]he Department typically uses succession orders to
delegate authority,” the Department issued the Connor
Memorandum to “confirm [Roberts’s] authority to exercise the
functions and duties of the AS–IA that are not required by law
or regulation to be performed only by the AS–IA.” J.A. 276.
And given that the Departmental Manual permits deviation
from the procedures by any appropriate authority, the Connor
Memorandum, issued by the Deputy Secretary of the Interior,
permissibly redelegated final decision-making authority to
Roberts.4 Thus, to the extent that the delegation was not
4 Appellants also secondarily argue that Deputy Secretary Connor
was not properly delegated the authority to redelegate final decision-
making authority to Principal Deputy Roberts. But Appellants
forfeited this argument by failing to raise it before the District Court.
Weinstein, 831 F.3d at 483.

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automatically made, it was correctly done through the Connor
Memorandum.
III.
Appellants also appeal the District Court’s grant of
summary judgment to the Department on Appellants’
Rancheria Act claim. Appellants claim that they do not
challenge the court-approved settlement agreement that
reestablished federal recognition of Wilton. Instead,
Appellants argue that because the Department distributed
assets to Wilton members pursuant to the Rancheria Act,
Wilton members are no longer entitled to the federal
government’s services on account of their status as Indians.
We reject this argument as specious.
As Appellants are well aware, we have previously
recognized that a court-approved settlement can invalidate the
effect of the Rancheria Act. In another lawsuit brought by
Stand Up, we concluded that a court-approved settlement
agreement is sufficient to restore recognition of a tribe and to
restore Indian status for members of that tribe notwithstanding
the Rancheria Act. Stand Up!, 879 F.3d at 1184. The
settlement agreement, which a federal court approved, stated
that Wilton “was not lawfully terminated, and the Rancheria’s
assets were not distributed, in accordance with the” Rancheria
Act. J.A. 901. The court made clear that the Rancheria Act did
not apply to Wilton because the Tribe’s assets were not
distributed pursuant to the law. Pursuant to this agreement, the
Department published notice in the Federal Register stating
that Wilton and its members were “relieved from the
application of section 10(b) of” the Rancheria Act. Restoration
of Wilton Rancheria, 74 Fed. Reg. 33,468, 33,468 (July 13,
2009). It is therefore irrelevant that some Wilton members may
have received assets because those assets were not distributed
pursuant to the statute. The Rancheria Act has no force on the
Department with regards to the Wilton Rancheria.

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As a fallback, Appellants contend that the District Court
erred by relying on the Federally Recognized Indian Tribe List
Act of 1994 (“List Act”). Pub. L. No. 103–454, 108 Stat. 4791,
4792 (Nov. 2, 1994). Appellants argue that the List Act did not
authorize the restoration of congressionally-terminated tribes
through court-approved settlements in its substantive
provisions, so the Rancheria Act still controls. Appellants are
mistaken. While it is true that the District Court relied on the
“Findings” section of the List Act, the “Findings” section
acknowledges that “Indian tribes presently may be recognized
. . . by a decision of a United States court.” Id. § 103(3). This
finding comports with decades of court-approved settlements
reestablishing federal recognition of Indian tribes. See, e.g.,
Hardwick v. United States, No. C-79-1710-SW (N.D. Cal.
1979); Table Bluff Band of Indians v. Andrus, 532 F. Supp. 255,
258, 259–61, 265 (N.D. Cal. 1981); Smith v. United States, 515
F. Supp. 56, 61–62 (N.D. Cal. 1978); Duncan v. Andrus, 517
F. Supp. 1, 5–6 (N.D. Cal. 1977); see also Stand Up!, 879 F.3d
at 1185 (discussing validity of the Hardwick settlement). It is
therefore irrelevant that the List Act failed to expressly
authorize the recognition of tribes through court decisions
because it confirmed that courts could do so. And that is
precisely what the court did when it approved the settlement
agreement. Therefore, the court-approved settlement
agreement recognizing Wilton and invalidating the Rancheria
Act’s application to Wilton comports with the List Act.
Because a court-approved settlement agreement reversed
the termination of the Wilton Rancheria pursuant to the
Rancheria Act, we affirm the District Court’s grant of summary
judgment to the Department.
IV.
Finally, Appellants challenge the District Court’s grant of
summary judgment to the Department on their NEPA claims.
Appellants argue that, at a minimum, the Department should

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have prepared either a supplemental EIS or a new EIS after it
selected the Elk Grove location as the site for the casino. This
contention also has no merit.
Congress enacted NEPA in 1970. 42 U.S.C. §§ 4321–
4347. When an agency takes a “major Federal action[],” NEPA
requires the responsible official to prepare a “detailed
statement . . . on (i) the environmental impact of the proposed
action, (ii) any adverse environmental effects which cannot be
avoided . . . , (iii) alternatives to the proposed action, (iv) the
relationship between local short-term uses . . . and . . . long-
term productivity, and (v) any irreversible and irretrievable
commitments of resources.” 42 U.S.C. § 4332(C). This
“detailed statement” has become known as an EIS.
An EIS goes through two stages: the draft EIS and the
final EIS. 40 C.F.R. § 1502.9. Id. The principal agency—
here, the Department of the Interior— prepares the draft EIS in
conjunction with cooperating agencies and obtain comments
regarding the proposed federal action. 40 C.F.R. § 1502.9(a).
In the draft EIS, the principal agency must “[i]dentify the
agency’s preferred alternative . . . , if one or more exists.” 40
C.F.R. § 1502.14(e). The final EIS must address all comments
and discuss responsive opposing views it did not discuss
adequately in the draft statement. 40 C.F.R. § 1502.9(b); id. §
1503.4(a). In responding to comments in the final EIS, the
agency is permitted to (1) “[m]odify alternatives including the
proposed action,” (2) “[d]evelop and evaluate alternatives not
previously given serious consideration,” (3) modify or
supplement its analyses, (4) make factual corrections, or (5)
explain why the comments do not merit further agency
response. 40 C.F.R. § 1503.4(a)(1)–(4). The agency must also
identify preferred alternatives in the final EIS unless prohibited
by law. 40 C.F.R. § 1502.14(e).
Where necessary, an agency must also prepare a
supplemental EIS. An agency must prepare a supplemental

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EIS if (1) “[t]he agency makes substantial changes in the
proposed action that are relevant to environmental concerns,”
or (2) “[t]here are significant new circumstances or information
relevant to environmental concerns and bearing on the
proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i)–
(ii). An agency may also prepare a supplemental EIS if it
determines that doing so would further NEPA’s purpose. 40
C.F.R. § 1502.9(c)(2).
When we review an EIS prepared under NEPA, our “role
is ‘simply to ensure that the agency has adequately considered
and disclosed the environmental impact of its actions and that
its decision is not arbitrary or capricious.’” Nat’l Comm. for
the New River v. FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004)
(quoting Baltimore Gas & Elec. v. NRDC, 462 U.S. 87, 97–98
(1983)). We must “ensure that the agency took a ‘hard look’
at the environmental consequences of its decision to go forward
with the project.” Id. (quoting City of Olmsted Falls v. FAA,
292 F.3d 261, 269 (D.C. Cir. 2002)). In determining whether
an agency is required to supplement its EIS, we also apply the
arbitrary-and-capricious standard. Marsh v. Oregon Nat. Res.
Council, 490 U.S. 360, 376 (1989).
In Marsh v. Oregon Natural Resources Council, the
Supreme Court evaluated whether NEPA required an agency
to prepare a supplemental EIS after finalizing the EIS. 490
U.S. 360 (1989). The Court concluded that, “the decision
whether to prepare a supplemental EIS is similar to the decision
whether to prepare an EIS in the first instance.” Id. at 374. If
the federal action is pending, then the new information that
comes to light must be “sufficient to show that the remaining
action will affect the quality of the human environment in a
significant manner or to a significant extent not already
considered” to require a supplemental EIS. Id. (internal
alteration and quotation omitted). Put simply, courts must
apply the rule of reason, which “turns on the value of the new

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information to the still pending decisionmaking process.” Id.
at 374. In turn, we have held that “[t]he overarching question
is whether an EIS’s deficiencies are significant enough to
undermine informed public comment and informed
decisionmaking.” Mayo v. Reynolds, 875 F.3d 11, 20 (D.C.
Cir. 2017) (quoting Sierra Club v. FERC, 867 F.3d 1357, 1368
(D.C. Cir. 2017)).
Under this standard, we conclude that the Department was
not required to prepare a supplemental or a new EIS when it
selected the Elk Grove location. As we have time and again
made clear, “a [supplemental EIS] must be prepared only
where new information ‘provides a seriously different picture
of the environmental landscape.’” Friends of Capital Crescent
Trail v. FTA, 877 F.3d 1051, 1060 (D.C. Cir. 2017) (quoting
Nat’l Comm. for the New River v. FERC, 373 F.3d 1323, 1330
(D.C. Cir. 2004)). The Department’s identification in the final
EIS of a preferred action among the alternatives it had assessed
did not result in a serious change in the environmental
landscape. Nor does the fact that the Department buttressed its
analysis in the final EIS help Stand Up’s argument. To support
its argument that new information affecting the environmental
analysis came to light, Stand Up points to the hundreds of pages
of analysis that the Department included in the appendix of the
final EIS, but Stand Up fails to point to anything in these pages
that suggests a significant development, thereby requiring
supplementation.
Moreover, nothing prohibited the Department from
buttressing its analysis between the draft EIS and the final EIS.
In the final EIS, the agency must “respond to comments” and
“discuss . . . any responsible view which was not adequately
addressed in the draft” EIS. 40 C.F.R. § 1502.9(b); see also id.
§ 1503.4(a) (permitting the agency to respond to comments by
“[m]odify[ing] alternatives including the proposed action” and
“[s]upplement[ing], improv[ing], or modify[ing] its analyses”

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in the final EIS). But this requirement does not, as Stand Up
suggests, prohibit the Department from buttressing its initial
analysis. And the Seventh Circuit’s holding in Habitat
Education Center does not contradict this proposition. As
Stand Up acknowledges, the Seventh Circuit concluded that
when “[s]trictly construed,” NEPA regulations “permit an
agency to issue a final EIS that does no more than incorporate
a previously issued draft EIS and respond to comments
received.” Habitat Educ. Ctr., Inc. v. U.S. Forest Servs., 673
F.3d 518, 527 (7th Cir. 2012) (emphasis added). That does not
mean that an agency is prohibited from going further and
bolstering its analysis in the final EIS. The agency must only
be sure that the new analysis is not based on new information
that paints “a seriously different picture” of the impact of the
project.5
Nor did the Department’s decision to select the Elk Grove
location fail to properly notify the public of its plans.
“Publication of an EIS, both in draft and final form, also serves
a larger informational role” and “provides a springboard for
public comment.” Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 349 (1989). As such, we must review
“whether an EIS’s deficiencies are significant enough to
undermine informed public comment and informed
decisionmaking.” Mayo, 875 F.3d at 20 (quoting Sierra Club,
867 F.3d at 1368). But the designation of the Elk Grove site as
the preferred alternative did not deprive the public and
interested parties of the opportunity to meaningfully comment
on or evaluate the proposal. First, the Department listed the
5 And this determination is subject to considerable judicial deference.
See Friends of Capital Crescent Trail, 877 F.3d at 1059 (“If an
agency’s decision not to prepare a [supplemental EIS] turns on a
‘factual dispute the resolution of which implicated substantial agency
expertise,’ the court defers to the agency’s judgment.” (quoting
Marsh, 490 U.S. at 376)).

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Elk Grove site as an alternative proposal. J.A. 968, 970.
Second, the Department extensively analyzed the Elk Grove
site in its draft EIS. J.A. 1191, 1271–1275, 1279–1324, 1329–
1338. The Department also published the draft EIS online and
made it available in the Galt public library, which is only a few
miles away from Elk Grove. J.A. 969. Third, the Department’s
inclusion of the Elk Grove site triggered public comment,
including by Stand Up and Lynn Wheat, two of the plaintiffs
in this litigation. Thus, not only did the Department provide
enough information in its draft EIS to allow for public
comment on the Elk Grove site, but it actually did lead to public
participation, including by Appellants. Therefore, the
Department satisfied its public notice requirements and was not
required to prepare a supplemental or a new EIS.
Appellants’ remaining arguments are similarly without
merit. First, Appellants argue that the Department failed to
follow NEPA regulations because it only made the City of Elk
Grove a cooperating agency later in the process. But as the
regulation that Appellants cite makes clear, the lead agency
must only request “the participation of each cooperating
agency in the NEPA process at the earliest possible time.” 40
C.F.R. § 1501.6 (emphasis added). Moreover, an agency could
“request the lead agency to designate it a cooperating agency,”
id., which is what the City of Elk Grove did, and the
Department granted that request. It was thus not error for the
Department to fail to promptly include the City of Elk Grove
as a cooperating agency.
Second, Appellants argue that the turnaround time
between the close of the final EIS’s comment period and the
issuance of the ROD is impermissibly short. Admittedly, the
two-day turnaround between the closure of the comment period
and the issuance of the ROD is not typical. But Appellants
offer no controlling precedent suggesting that the quick
turnaround was per se impermissible. And as the District Court

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recognized, the one case Appellants cite—a district court case
from North Carolina—is inapposite. There, the agency
acknowledged that it failed to respond to numerous comments
and had already reopened the NEPA process. North Carolina
Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 151
F. Supp. 2d 661, 676 (M.D.N.C 2001). Here, however,
Appellants have not claimed that the Department failed to
respond to any comments. Thus, while it may have been
unusual for the Department to have moved so quickly to issue
the ROD, that short turnaround in and of itself is insufficient to
invalidate the decision.
V.
Over seven years after the Department began the process
of acquiring land in trust on behalf of Wilton, it has maintained
its position that Wilton is a federally recognized tribe and that
the officials who made the decision properly followed the
Department’s regulations. In acquiring this land in trust, the
Department followed all of its statutory and regulatory
obligations to consider the environmental impact of this
acquisition. We therefore affirm.
So ordered.

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