United States District Court, District of Columbia
STAND UP FOR CALIFORNIA!, PATTY JOHNSON, JOE TEIXEIRA, and LYNN WHEAT, Plaintiffs,
UNITED STATES DEPARTMENT OF INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; and JOHN TAHSUDA III, in his official capacity as Acting Assistant Secretary-Indian Affairs, Defendants, and WILTON RANCHERIA, CALIFORNIA Intervenor-Defendant.
N. MCFADDEN, UNITED STATES DISTRICT JUDGE
case involves a uniquely Washingtonian question: when can a
federal employee act in the place of an absent agency or unit
head? This issue becomes acute during presidential
transitions, when thousands of senior political appointees
exit the government, often leaving their positions vacant for
months or even years. Congress addressed this question
through the Federal Vacancies Reform Act
(“FVRA”), 5 U.S.C. § 3345 et seq.,
and federal agencies have also developed complicated
succession and delegation regulations. As a result, it turns
out that, in practice, there are very few duties that cannot
be delegated to an “acting” officeholder, the
second-in-command (the “first assistant” to use
the FVRA's term), or even another official who acts in
the place of the principal pursuant to agency regulations or
Stand Up for California!, Patty Johnson, Joe Teixeira, and
Lynn Wheat (collectively, “Plaintiffs”) challenge
the decision of the United States Department of the Interior,
its Secretary of the Interior and Acting Assistant
Secretary-Indian Affairs in their official capacities, and
the Bureau of Indian Affairs (collectively, “Federal
Defendants” or the “Department”) to acquire
land in trust for the Wilton Rancheria Tribe of California
(“Wilton Rancheria” or the “Tribe”).
The Plaintiffs allege that in delegating to the Principal
Deputy Assistant Secretary-Indian Affairs and the Special
Assistant to the Director of the BIA the authority to act in
the place of the Assistant Secretary-Indian Affairs, the
Department violated its own regulations and the FVRA. This
Court granted the Wilton Rancheria's motion to intervene.
Minute Order, Feb. 24, 2017. Now pending before the Court are
the Plaintiffs' motion for summary judgment and the
Department's and Wilton Rancheria's (collectively,
the “Defendants”) cross-motions for summary
judgment. As jurisdiction and venue is proper in this Court,
upon consideration of the pleadings, relevant law, related
legal memoranda in opposition and in support, the
parties' representations at oral argument, and the entire
record, I find that no genuine issue of material fact exists
and that the actions taken by Department employees in lieu of
the Assistant Secretary-Indian Affairs (a vacant office at
the time) were not in violation of departmental regulations
or the FVRA. Accordingly, the Plaintiffs' motion for
summary judgment will be denied, and the Defendants'
cross-motions for summary judgment will be granted.
Wilton Rancheria has been landless for nearly 60 years. Mem.
of P. & A. in Opp. to Pls.' Mot. for Summary J. and
in Supp. of Wilton Rancheria, California's Cross-Mot. for
Summary J. (“Tribe's Cross-Mot. for Summary
J.”) 5, ECF No. 41. In 2013, the Tribe applied for the
Bureau of Indian Affairs (“BIA”) to acquire land
in trust on its behalf, identifying a 282-acre parcel near
Galt, California as the proposed site. See Am.
Compl. ¶ 31. After three years of examination of the
Galt site, the BIA published a notice of the final
environmental impact statement shortly after the November
2016 presidential election, but for a different, 36-acre
parcel of land in Elk Grove, California. See Id.
¶ 38. As the Plaintiffs understood for the significant
majority of the years-long process that the land to be
acquired was in Galt, not Elk Grove, the Plaintiffs
immediately sought to delay the acquisition of title to the
Elk Grove land by making several requests to the Secretary of
the Interior (“Secretary”). Id.
¶¶ 38, 40. When the Plaintiffs' requests were
refused, they filed suit in this District, seeking a
temporary restraining order and preliminary injunction
against the Department to prevent acquisition of title to the
land. Id. ¶ 41. Another judge of this District
denied the motions, after which the Plaintiffs formally
applied to the Department for a stay under 5 U.S.C. §
705. Minute Order, Jan. 13, 2017; Minute Order, Jan. 17,
2017; Am. Compl. ¶ 43.
than halting the process, the Department shifted into warp
speed-for a federal bureaucracy-to approve the application
for the Elk Grove site. On January 19, 2017, in the waning
hours of the Obama Administration, Lawrence Roberts, the
Principal Deputy Assistant Secretary-Indian Affairs, issued a
Record of Decision approving the Wilton Rancheria's
application and authorizing acquisition of the Elk Grove land
in trust for the Tribe. See Mot. to Intervene Ex. A
at 2-3. On February 10, 2017, Michael Black, signing as the
Acting Assistant Secretary-Indian Affairs, denied the
Plaintiffs' stay request, and the Plaintiffs filed an
internal administrative notice of appeal. Am. Compl.
¶¶ 55, 57. The Plaintiffs argued that the
Department violated its own regulations and the FVRA in
deciding to acquire land in trust for the Tribe. See
Mem. of P. & A. in Supp. of Pls.' Mot. for Summary J.
(“Pls.' Mem. for Summary J.”) Ex. E, ECF No.
33-1. In particular, the Plaintiffs construe the relevant
regulation for trust land acquisitions, 25 C.F.R. §
151.12(c), as reserving the decision-making authority for
final trust decisions exclusively to the Secretary or the
Assistant Secretary-Indian Affairs (the “ASIA, ”
in Department lingo). See id.
March 7, 2017, citing administrative appeals regulations, Mr.
Black exercised jurisdiction over the appeal as the Acting
AS-IA. Pls.' Mem. for Summary J. Ex. A, ECF No. 33-1. On
July 13, 2017, Mr. Black, signing as the Acting AS-IA,
dismissed the appeal, determining that the January 19, 2017
Record of Decision was a proper and final agency action.
See Id. Ex. F, ECF No. 33-1. Mr. Black reasoned that
the FVRA permitted the delegation of the non-exclusive
functions and duties of the AS-IA; and that Mr. Roberts, as
the Principal Deputy Assistant Secretary, was duly delegated
at the time, under the Department Manual, the nonexclusive
functions and duties of the AS-IA, including approving the
Tribe's application. See id.
parties then returned to this Court and the Plaintiffs filed
an amended complaint. Count One challenges Mr. Roberts'
January 19, 2017 Record of Decision approving the Tribe's
application as an ultra vires action in violation of
agency regulations and the FVRA. Am. Compl. ¶ 70. Count
Two challenges Mr. Black's decisions to acquire title in
trust for the Tribe (February 10, 2017), assume jurisdiction
over the Plaintiffs' appeal (March 7, 2017), and issue an
order dismissing the appeal (July 13, 2017) as violations of
agency regulations and the FVRA. Id. ¶ 82. The
parties' cross-motions for summary judgment, including
one by the Tribe as an intervenor-defendant, are now ripe.
Pls.' Mot. for Summary J., ECF No. 33; Mem. of P. &
A. in Opp. to Pls.' Mot. for Summary J. and in Supp. of
Fed. Defs.' Cross-Mot. for Summary J. (“Fed.
Defs.' Cross-Mot. for Summary J.”), ECF No. 40;
Tribe's Cross-Mot. for Summary J., ECF No.
prevail on summary judgment, the movant must show an absence
of a genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The Court views the evidence in the
light most favorable to the non-moving party. Johnson v.
Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).
Statutory and Regulatory Scheme
matter involves the interplay between Congress' statutory
scheme setting forth who is authorized to act for the United
States under what circumstances and the Department's
regulatory scheme implementing Congress' directives, I
begin my analysis with an overview of the applicable statutes
Indian Reorganization Act of 1934, Congress delegated to the
Department of the Interior authorization to acquire land in
trust for Indians tribes. 25 U.S.C. § 5108. The
Secretary has created procedures for these
“fee-to-trust” actions in the Code of Federal
Regulations. See 25 C.F.R. § 151.1 et
seq. In particular, Section 151.12 requires the
Secretary to review and approve or deny each request for land
acquisition. 25 C.F.R. § 151.12(a)-(b). The Secretary
may delegate this authority to the AS-IA or to an official in
the BIA, which is a bureau under the purview of the AS-IA. 78
Fed. Reg. 67, 928, 67, 929 (Dep't of the Interior Nov.
13, 2013); Department Manual 105 DM 2 Organizational
2013, Section 151.12 was revised to, among other things:
Provide clarification and transparency to the process for
issuing decisions by the Department, whether the decision is
made by the Secretary, Assistant Secretary-Indian Affairs
(AS-IA), or a Bureau of Indian Affairs (BIA) official; Ensure
notice of a BIA official decision to acquire land into trust,
and the right, if any, to file an administrative appeal of
such decision by requiring written notice to all interested
parties who have made themselves known in writing to the BIA
official . . . .
78 Fed. Reg. at 67, 929. The revised rule added new
subsections (c) and (d), which were summarily described as
housing certain requirements moved from subsections (a) and
(b), such as prompt notification, notification of appeal
rights, title examination, exhaustion of administrative
remedies, and publication in the Federal Register.
Id. at 67, 930-67, 931. The revisions also clarified
the “different means and timelines for challenging
decisions depending on whether the decision is issued by the
AS-IA or a BIA official.” Id. at 67, 929.
Accordingly, Section 151.12(c)-which is at the crux of the
current dispute-provides the applicable procedures when the
AS-IA issues a decision, whereas Section 151.12(d) provides
the applicable procedures when a BIA official issues a
decision. Under Section 151.12(c):
A decision made by the Secretary, or the Assistant
Secretary-Indian Affairs pursuant to delegated authority, is
a final agency action under 5 U.S.C. 704 upon issuance.
(1) If the Secretary or Assistant Secretary denies the
request, the Assistant Secretary shall promptly provide the
applicant with the decision.
(2) If the Secretary or Assistant Secretary approves the
request, the Assistant Secretary shall:
(i) Promptly provide the applicant with the decision;
(ii) Promptly publish in the Federal Register a notice of the
decision to acquire land in trust under this part; and
(iii) Immediately acquire the land in trust under §
151.14 on or after the date such decision is issued and upon
fulfillment of the requirements of § 151.13 and any
other Departmental requirements.
a decision properly made under Section 151.12(c) is a final
agency action and the ASIA may acquire the land in trust.
Under Section 151.12(d):
A decision made by a Bureau of Indian Affairs official
pursuant to delegated authority is not a final
agency action of the Department under 5 U.S.C. 704
until administrative remedies are exhausted under
part 2 of this chapter or until the time for filing a notice
of appeal has expired and no administrative appeal has been
(emphases added). The addition of subsections (c) and (d)
thus “makes explicit the requirement that prior to
seeking judicial review of a BIA official's decision, a
party must first exhaust the administrative remedies