STAND UP FOR CALIFORNIA! et al v. UNITED STATES DEPARTMENT OF INTERIOR et al
MEMORANDUM OPINION re Plaintiffs' 33 Motion for Summary Judgment, Defendants' 40 Cross-Motion for Summary Judgment, and Intervenor-Defendant's 41 Cross-Motion for Summary Judgment. Signed by Judge Trevor N. McFadden on 2/28/2018. (lctnm3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STAND UP FOR CALIFORNIA!, PATTY
JOHNSON, JOE TEIXEIRA, and LYNN
Case No. 1:17-cv-00058 (TNM)
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,
WILTON RANCHERIA, CALIFORNIA
This 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 orders.
Here, 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,1 and 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.
See 28 U.S.C. §§ 1331, 1391, 2201-2202; 5 U.S.C. §§ 702, 706.
The 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 282acre 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.
Rather 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.
On 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.
The 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
To 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).
A. Statutory and Regulatory Scheme
As this 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 and regulations.
The Amended Complaint alleges three other counts involving the Indian Reorganization Act,
the California Rancheria Termination Act, the Indian Gaming Regulatory Act, and the National
Environmental Policy Act. The Plaintiffs proffer that its motion raises issues of law that will
resolve those counts; accordingly, the parties have briefed cross-motions for summary judgment
only as to Counts One and Two. See Pls.’ Mot. for Summary J. 1.
In the 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 Chart.3
In 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
Available at https://elips.doi.gov/ELIPS/0/doc/4233/Page1.aspx (last visited February 28,
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
(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.
Therefore, 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 filed.
(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 available under 25 C.F.R. part 2.” 78 Fed. Reg. at 67,929.
Separate from, but in addition to its promulgated regulations, the Department has
established an internal Department Manual setting forth its operational procedures.4 The
Department Manual includes a series on the Secretary’s delegation of authority pursuant to 5
U.S.C. § 302, which permits the head of the agency to “delegate to subordinate officials the
Available at https://elips.doi.gov/ELIPS/Browse.aspx (last visited February 28, 2018).
authority vested in him.” See 5 U.S.C. § 302. Part 209, Chapter 8 sanctions the delegation of
authority to the AS-IA. Section 8.1 provides that, subject to certain limitations not applicable
here, the AS-IA “is authorized to exercise all of the authority of the Secretary,” and Section 8.4
provides that the “Principal Deputy Assistant Secretary is delegated all program and
administrative authorities of the [AS-IA] necessary to fulfill the responsibilities.” Department
Manual 209 DM 8 §§ 8.1, 8.4(A), ECF No. 33-1 Ex. H. The Principal Deputy Assistant
Secretary is also the “first assistant and principal advisor” to the AS-IA. Department Manual
110 DM 8 § 8.2, ECF No. 33-1 Ex. H. The Department Manual further provides that in the
absence of the AS-IA, the Principal Deputy Assistant Secretary is authorized to step into the ASIA’s shoes.5 See Department Manual 209 DM 8 §§ 8.1, 8.4(B). In other words, the AS-IA is
authorized to act on behalf of the Secretary, and the Principal Deputy Assistant Secretary has
broad authority to act on behalf of his boss, the AS-IA, or in lieu of the AS-IA if the AS-IA’s
office is vacant. See id.
Last, the FVRA is Congress’ practical response to the “problems that arise when our
Constitution confronts the realities of practical governance,” such as when the change in
presidential administrations leaves vacant certain positions requiring appointment by the
President and confirmation by the Senate (known as “PAS” positions). See SW General, Inc. v.
N.L.R.B., 796 F.3d 67, 69 (D.C. Cir. 2015); U.S. Const. art. II, § 2, cl. 2 (Appointments Clause).
The FVRA’s “default rule” is that the “first assistant” to the vacant PAS position automatically
This includes all limitations on the AS-IA, with one further exception not applicable here: the
Principal Deputy Assistant Secretary may not withdraw or reserve public lands under Section
204(a) of Public Law 94-579, otherwise known as the Federal Land Policy and Management Act
of 1976 (“FLPMA”). Department Manual 209 DM 8 §§ 8.1(B); 8.4(B); Fed. Defs.’ Mem. in
Response to the Court’s Request at Oral Arg., ECF No. 52. The land here is not public land as
defined by the FLPMA. See id.
assumes the “functions and duties” of the office for up to 210 days as the “acting” PAS official.
5 U.S.C §§ 3345(a)(1), 3346(a)(1); N.L.R.B. v. SW General, Inc., 137 S. Ct. 929, 935 (2017).
This includes any function or duty that is established by statute or regulation “to be performed by
the applicable officer (and only that officer).” 5 U.S.C. § 3348(a)(2). After the 210 days elapse,
should the PAS role continue to remain vacant, the FVRA, although silent on the issue, has been
deemed to “permit non-exclusive responsibilities to be delegated to other appropriate officers
and employees in the agency.” Guidance on Application of Federal Vacancies Reform Act of
1998, 23 Op. O.L.C. 60, 72 (1999).6 In the judgment of the Justice Department’s Office of Legal
Counsel, this reflects Congress’ understanding that if all duties to be performed by the vacant
PAS position had to be performed by the head of the agency, “the business of the government
could be seriously impaired.” Id.
B. Count One: The Record of Decision Was Not Ultra Vires Action
The Plaintiffs first challenge the January 19, 2017 Record of Decision signed by
Mr. Roberts, the Principal Deputy Assistant Secretary-Indian Affairs. The former AS-IA, Kevin
Washburn, resigned from office effective midnight on December 31, 2015. Pls.’ Mem. for
Summary J. Ex. F. Pursuant to the FVRA and the Department Manual, Mr. Roberts, as the
Principal Deputy Assistant Secretary and “first assistant” to the AS-IA, automatically became the
Acting AS-IA. See id; 5 U.S.C. § 3345(a)(1); Department Manual 110 DM 8 § 8.2. Mr. Roberts
served as the Acting AS-IA for 210 days (from January 1, 2016 to July 29, 2016) as permitted by
the FVRA, and then reverted to his position as the Principal Deputy Assistant Secretary. Pls.’
Available at https://www.justice.gov/olc/opinion/guidance-application-federal-vacanciesreform-act-1998 (last visited February 28, 2018).
Mem. for Summary J. 8; id. Ex. F; 5 U.S.C. § 3346(a)(1). The AS-IA position then remained
vacant without a PAS officer in the role.7 Thus, at the time Mr. Roberts issued the Record of
Decision, his title was the Principal Deputy Assistant Secretary-Indian Affairs. Mot. to Intervene
Ex. A at 2.
In short, the Plaintiffs argue that the Department’s regulations permit only the Secretary
and the AS-IA, both PAS positions, to make final trust decisions. See 25 C.F.R. § 151.12(c);
Pls.’ Mem. for Summary J. 9. It is undisputed that on January 19, 2017, Mr. Roberts was neither
appointed nor confirmed as the Secretary or AS-IA, nor was he the Acting AS-IA. The Plaintiffs
allege that his decision therefore must be invalid. See id. at 9-11. The Plaintiffs further allege
that Mr. Roberts’ purported exercise of authority to make a final fee-to-trust decision violated the
FVRA. Id. at 17-20.
The Defendants counter that 25 C.F.R. § 151.12 is not so limited as the Plaintiffs’ reading
and that at the time of the decision, Mr. Roberts was properly exercising the AS-IA’s authority
pursuant to delegated authority by the Secretary as established in the Department Manual, which
did not violate the FVRA. Fed. Defs.’ Cross-Mot. for Summary J. 6; Tribe’s Cross-Mot. for
Summary J. 8, ECF No. 41. Because the authority to make a final fee-to-trust decision is nonexclusive and therefore delegable, and the authority was properly delegated to the Principal
Deputy Assistant Secretary, I agree with the Defendants’ position that Mr. Roberts exercised
authority consistent with Section 151.12(c) and the Department Manual, and that this was not in
contravention of the FVRA.
The role is still vacant as of January 9, 2018. Tr. of Mot. Hr’g, 25, Jan. 9, 2018.
1. Section 151.12(c) Does Not Preclude Delegation to the Principal Deputy
The threshold question is whether 25 C.F.R. § 151.12(c) exclusively reserves final fee-totrust decision-making in the Secretary and AS-IA alone, or whether the authority is delegable to
others. For the authority to have been properly exercised by the Principal Deputy Assistant
Secretary (a position within the AS-IA’s office), standing in for the AS-IA, it must first be
delegable. For multiple reasons, I find that it is.
First, 25 C.F.R. § 151.12(c) must be interpreted against a background presumption of
delegability. As the D.C. Circuit has held, “[w]hen a statute delegates authority to a federal
officer or agency, subdelegation to a subordinate federal officer or agency is presumptively
permissible absent affirmative evidence of a contrary congressional intent.” U.S. Telecomm
Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004).8 Here, Congress delegated the authority to
acquire land in trust for Indian tribes to the Secretary of the Interior. See 25 U.S.C. § 5108 (“The
Secretary of the Interior is authorized, in his discretion, to acquire, through purchase . . . any
interest in lands . . . for the purpose of providing land for Indians.  Title to any lands or rights
acquired pursuant to this Act . . . shall be taken in the name of the United States in trust for the
Indian tribe . . . .”). There is no indication from the statute that Congress intended to preclude
subdelegation, and the Plaintiffs do not argue to the contrary. See id.; Reply Mem. in Supp. of
Pls.’ Mot. for Summary J. and in Opp. to Defs.’ Cross-Mot. for Summary J. (“Pls.’ Reply”) 8,
ECF No. 45.
As the first-level delegation is from Congress to the agency, intra-agency delegations are
subdelegations. In discussing intra-agency delegations in this opinion, I use the term
“delegation,” which should be understood as subdelegations.
This presumption is consistent with the landscape of statutes and regulations assigning
functions and duties to the AS-IA, and indeed to other senior Executive Branch officials. In
responding to an inquiry by the Secretary as to whether the duties of the AS-IA could be
delegated in the event of a vacant position, the Department’s Solicitor (its chief lawyer) advised
that the only duties that could not be delegated are those established by statute or regulation as
required to be performed by the AS-IA. Mem. from the Solicitor to the Sec’y of the Interior re
Redelegation of Duties of the Assistant Secretary-Indian Affairs (Jan. 28, 2005), ECF No. 40-1;
see also Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60,
72 (1999) (advising that non-exclusive responsibilities may be delegated). In surveying
Department statutes and regulations, the Solicitor identified only two statutes that seemed to
limit delegation of the AS-IA’s responsibilities (neither of which are relevant here), and did not
identify any regulations that precluded delegation of the AS-IA’s duties. Though the Solicitor’s
memorandum predates the promulgation of 25 C.F.R. § 151.12(c), it is nonetheless informative
as to the then-existing status quo of the Department’s regulations and further supports the general
presumption of delegability.9
This presumption is applicable and not overcome by any “affirmative evidence” in this
case. See U.S. Telecomm, 359 F.3d at 565. The plain text of the regulation does not reveal any
affirmative language precluding delegation, such as “may only be delegated to,” “may not [be]
delegate[d],” “may not be reledegated,” “shall not be redelegated,” or is “not subject to
Both the Federal Defendants and the Tribe argue that the memorandum provides evidence of
the Department’s interpretation of its own regulations which should be afforded deference under
Auer v. Robbins, 519 U.S. 452 (1997). Fed. Defs.’ Cross-Mot. for Summary J. 23; Tribe’s
Cross-Mot. for Summary J. 17. But in light of the clear import of the regulation against the
backdrop of the presumption of delegability and lack of affirmative evidence otherwise, I need
not determine whether Auer deference is appropriate here and reference the memorandum solely
to provide background on the dearth of Department regulations precluding delegation.
delegation.” See 25 C.F.R. § 151.12; Tribe’s Cross-Mot. for Summary J. 10-11. These types of
phrases have been invoked by Congress or the Secretary to clearly preclude delegation in other
contexts. See, e.g., 25 U.S.C. § 2103(d) (governing minerals agreements); id. § 5117(b)(2)
(governing demotion of certain BIA officials); id. § 2706(a) (exclusively vesting the Indian
Gaming Commission with certain powers); 43 C.F.R. § 3191.2(b) (governing delegation by the
Director regarding oil and gas leases); id. § 20.202(b)(1) (governing delegations of the Ethics
Counselor on disciplinary or remedial actions). Section 151.12, including subsections (c) and
(d), is devoid of any similar language prohibiting the delegation of a fee-to-trust decision. On
the regulation’s plain text, then, delegation by the Secretary to a subordinate other than the ASIA—in this case, the Principal Deputy Assistant Secretary—seems “presumptively permissible.”
See U.S. Telecomm Ass’n, 359 F.3d at 565.
Second, the context and comments relating to the regulation about which the Plaintiffs
complain do not suggest it is a delegation regulation. While an agency is “bound by its own
regulations,” Texas v. EPA, 726 F.3d 180, 200 (D.C. Cir. 2013) (internal quotations and citations
omitted), the regulation at issue here is not about the Secretary’s ability to delegate, nor does it
set forth the Secretary’s delegation structure. See 25 C.F.R. § 151.12 (“Action on requests”).
The regulation exemplifies “a situation where [the creating entity] has ‘mention[ed] a specific
individual only to make it clear that this official has a particular power rather than to exclude
delegation to other officials.’” Ethicon Endo-Surgery, Inc. v. Covidien LP, 812 F.3d 1023, 1033
(Fed. Cir. 2016) (quoting United States v. Mango, 199 F.3d 85, 90 (2d. Cir. 1999)). Rather, the
regulation describes, for the benefit of external parties, the Department’s process of reviewing
and taking action on acquisition requests. See id. Subsections (c) and (d), created during the
2013 revisions to Section 151.12, were promulgated in part to “[p]rovide clarification and
transparency to the process for issuing decisions by the Department, whether the decision is
made by the Secretary, [the AS-IA], or a [BIA] official” and sought to clarify the distinctions of
the “different means and timelines for challenging decisions” within “the context of trust
acquisition decisions.” 78 Fed. Reg. at 67,929. To that end, the revisions require the
Department to provide notice of a BIA official’s decision in order to enable parties to file an
administrative appeal and make explicit that parties must exhaust administrative remedies before
seeking judicial review. See id. This evidences an intent to clarify matters externally, not an
intent to internally restrict delegation. Cf. Ethicon Endo, 812 F.3d at 1032-33.
This finding is supported by the Secretary’s comments—or rather, the lack thereof—in
the preamble to the final rulemaking.10 None of the comments explicitly or implicitly address
delegation. The portion of the preamble “detail[ing] all revisions this new rule would make to
§ 151.12” lacks any indication that delegation is an intended subject of the changes. See id. at
67,930-67,932. The revisions instead focus on when judicial review may occur by deleting a 30day waiting period prior to seeking judicial review, providing notice of a BIA official’s decision
such that “[t]he time for unknown interested parties to file a notice of appeal begins to run upon
the date of first publication of such newspaper notice,” and clarifying that administrative review
Agency comments published in the Federal Register accompanying final rules suffer neither
the well-documented defects of selective citations to legislative history nor the dangers of
subsequent agency glosses on their own regulations. After all, while no one legislator or
committee can speak authoritatively to Congressional intent, see Green v. Bock Laundry Mach.
Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring), an agency head promulgating regulations
can explicate his own intent in the accompanying regulation that he alone authorized. And
contemporaneous statements are less susceptible to self-serving creativity than post-hoc glosses
from agencies attempting to gild the lily in the midst of litigation. In the pantheon of aids to
interpreting controlling text, therefore, Federal Register commentary is more helpful than most.
See also Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 53 (D.C. Cir. 1999)
(“Although the preamble does not ‘control’ the meaning of the regulation, it may serve as a
source of evidence concerning contemporaneous agency intent.”).
of a BIA official’s decision is unavailable if an interested party fails to exhaust administrative
remedies. Id. at 67,929-67,930. The import of all of these changes—and the conspicuous
absence of any substantive discussion in the preamble of Section 151.12(c) or (d), even though
the revisions created those subsections—is that the revisions to Section 151.12 sought to clarify
which decisions are final (i.e., immediately judicially reviewable) versus non-final, and were not,
as Plaintiffs suggest, promulgated to imbue the Secretary and the AS-IA with exclusive authority
to issue final fee-to-trust decisions.
Moreover, reading Section 151.12(c)’s references to the “AS-IA” narrowly (i.e., to mean
the AS-IA and no one else) would lead to absurd results. See Holy Trinity Church v. United
States, 143 U.S. 457, 460 (“If a literal construction of the words of a statute be absurd, the act
must be so construed as to avoid the absurdity.”). According to the regulation, if the Secretary or
the AS-IA approves the fee-to-trust application, the AS-IA “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
25 C.F.R. § 151.12(c) (emphasis added). But of course the AS-IA himself does not personally
inform the applicant of his decision, publish a notice of the decision in the Federal Register, or
acquire the land in trust. Rather, he explicitly or implicitly delegates these duties to others.
Surely no one would contend that a fee-to-trust decision would be void if some administrator
rather than the AS-IA himself published the requisite notice in the Federal Register or if the BIA
acquired the land in trust at the direction of the AS-IA. If these administrative tasks—which by
the strict language of the regulation are assigned to the AS-IA—can be delegated to others, then
it is hard to see why the Department cannot also re-delegate other responsibilities of the AS-IA
that are discussed in the same subsection.
Third, while there do not appear to be any cases directly addressing the issue of whether
the authority to issue final fee-to-trust decisions is exclusive, delegation case law more broadly is
consistent with the AS-IA’s authority being delegable in this instance. The Plaintiffs primarily
rely on Giordano v. United States, in which the Supreme Court held that a provision providing
that “(t)he Attorney General, or any Assistant Attorney General specially designated by the
Attorney General” may authorize a wiretap application reserved the authority solely to those two
individuals and did not permit further delegation. 416 U.S. 505, 513-14 (1974); Tr. of Mot. Hr’g
7. Significantly, the Plaintiffs assert, the statute was devoid of language explicitly preventing
delegation, such as the terms “only” or “exclusively,” which are also lacking in 25 C.F.R.
§ 151.12. Id. The differences between the circumstances in Giordano and those presented here,
however, require a different outcome.
In Giordano, the Supreme Court examined the purpose of the legislation, which was to
generally prohibit wire intercepts, and found that “Congress legislated in considerable detail in
providing for applications and orders authorizing wiretapping and evinced the clear intent to
make doubly sure that the statutory authority be used with restraint.” 416 U.S. at 514-15. There,
delegation appeared “wholly at odds with the scheme and history of the Act.” Id. at 523. Here,
the Secretary’s 2013 rulemaking expressed no similar intent. To start, the statute in Giordano
generally served to restrict an action, whereas Section 151.12 and its subsection (c) do not share
the same overall goal to restrict. Rather than a prohibitive regulation, Section 151.12 is
procedural in nature, describing how fee-to-trust application requests are actioned and setting
forth the effects of those actions. Further, the Supreme Court in Giordano extensively analyzed
the statute’s legislative history and identified specific instances where Congress intended “the
authority to apply for court orders  to be narrowly confined but also declare[d] that it is to be
limited to those responsive to the political process.” Id. at 520. Here, not only is there a
fundamental difference in the nature of the regulation, but the Secretary’s commentary around
the rulemaking did not explicitly or implicitly approach the topic of delegation, much less
display an intent that final fee-to-trust decisions should be an exclusive power. And, as
explained above, Section 151.12 is neither a delegation regulation, nor can any of the Secretary’s
comments in promulgating the rulemaking be construed as such. See id. The “affirmative
evidence of a contrary  intent” is not present. See U.S. Telecomm Ass’n, 359 F.3d at 565.
The Second Circuit in United States v. Mango similarly distinguished Giordano based on
these characteristics. 199 F.3d 85, 90-91 (2d Cir. 1999). In Mango, the Second Circuit found
that the Clean Water Act’s provision granting authority to issue certain permits to the
“Secretary,” defined as “the Secretary of the Army, acting through the Chief of Engineers,” did
not preclude delegation to others. Id. at 86-87. The Second Circuit found that even though the
language at issue from the Clean Water Act “contains language somewhat similar to the wiretap
statute,” the absence of legislative history indicating that Congress considered and rejected
subdelegation distinguished it from Giordano. Id. at 90-91. As with Section 151.12, the relevant
provision of the Clean Water Act was not a specific delegation provision, and the scheme as a
whole was not intended to forbid a certain action. Mango’s holding and reasoning is more akin
to the circumstances presented by Section 151.12(c) than Giordano.
The Federal Circuit in Ethicon Endo-Surgery also analyzed whether there was clear
congressional intent to prohibit subdelegation in the context of the America Invents Act. The
statute provided that “[t]he Director shall . . . appoint such officers . . . as the Director considers
necessary, . . . and delegate to them such of the powers vested in the Office as the Director may
determine.” 812 F.3d at 1032-33. The appellant argued that this provision precluded the
Director from delegating authority to individuals that the Director did not appoint. Id. at 1033.
The court disagreed, describing this provision as “not primarily a delegation provision” and
instead as a “source of authority” for the Director’s appointments. Id. at 1033. In both Ethicon
Endo and Mango, the courts explained that “Congress 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.” Id.; 199 F.3d at 90 (citing Shook v. District of Columbia Financial Responsibility and
Management Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998)). Applying these principles
to this matter leads to the conclusion that Section 151.12(c) is not intended to preclude the
Secretary’s authority to delegate to others, and that delegation to the AS-IA is one such, but not
the only, permissible delegation.
The Defendants’ reading also finds support among the few district court cases that have
faced analogous issues. In Schaghticoke Tribal Nation v. Kempthorne, both the AS-IA and
Principal Assistant Deputy Secretary positions became vacant, and thus, there was no “first
assistant” to become Acting AS-IA. F. Supp. 2d 389, 420 (D. Conn. 2008). The Secretary
delegated the non-exclusive duties of the AS-IA to an Associate Deputy Secretary. Id. The
court examined the applicable statutes and regulations—in that case, pertaining to tribal
acknowledgements—and found that the relevant statutes did not assign the function
“exclusively” or “only” to the AS-IA, and that the relevant regulations similarly did not seem to
preclude delegation of the AS-IA’s duties. Id. at 420-21. In Sokaogon Chippewa Community v.
Babbitt, the court analyzed the scenario where the AS-IA was recused and delegated his
authority to make a final fee-to-trust decision to the Deputy Assistant Secretary-Indian Affairs.
929 F. Supp. 1165, 1182 (W.D. Wis. 1996). The court held that the AS-IA’s delegation of
authority was proper as the Department Manual provided for delegations “[i]n the absence of, or
under conditions specified by, the [AS-IA],” and that this recusal fell into the latter category. Id.
Accordingly, the decision was final for the department. While these cases involved different
statutes and regulations and predated the current form of Section 151.12 and the Department
Manual, their reasoning remains persuasive and promotes the Defendants’ reading.
The Plaintiffs’ counterarguments are unavailing as they all misunderstand or misread 25
C.F.R. § 151.12(c). To counter the presumption of delegability, the Plaintiffs assert that the
Secretary’s purported intention to limit delegation of trust decision-making authority controls
instead. Pls.’ Reply 8-9. The Plaintiffs look to the text of the regulation, look to the Secretary’s
comments in the preamble to the final rulemaking, and invoke legal maxims to support their
position. None of these sources, however, compels the Plaintiffs’ conclusion.
The Plaintiffs claim that the regulation’s text is clear that the only three roles that may
make fee-to-trust decisions are the Secretary, “the [AS-IA] pursuant to delegated authority,” or a
“[BIA] official pursuant to delegated authority” and that “magic words” are not necessary to
evidence the Secretary’s intent to preclude delegation. See 25 C.F.R. § 151.12(c)-(d); Pls.’
Reply 5; Tr. of Mot. Hr’g 6. Although the Plaintiffs’ assertion may be possible as a general
matter, that scenario is not presented here. It is evident from review of the 2013 revisions to
Section 151.12 that subsections (c) and (d) were promulgated not to restrict who may make trust
decisions, but to distinguish between final and non-final agency action and provide external
guidance as to when agency decisions must be administratively exhausted versus being
immediately judicially reviewable. See supra Part III.A.; see also 78 Fed. Reg. at 67,929.
The Plaintiffs emphasize a portion of the preamble under the heading “Who the Decision
Maker Should Be,” and contend that the response to one comment evidences a “reject[ion of] a
proposal for having the Deputy Assistant Secretary decide all the trust applications the Assistant
Secretary normally would decide to allow for administrative appeal.” Pls.’ Mem. for Summary
J. 10. This misreads the response. In addressing the suggestion, the Secretary explained that the
“AS-IA retains the discretion to issue a decision or assign responsibility to a Deputy Assistant
Secretary to issue the decision under 25 U.S.C. 2.20(c) [governing appeals before the Interior
Board of Indian Appeals].” 78 Fed. Reg. at 67,934 (emphases added). This response focuses on
the AS-IA’s authority and an instance where the AS-IA may delegate it, and is not a discussion
of the Secretary’s intention to constrain his authority on final fee-to-trust decisions.
To the extent the Plaintiffs turn to the preamble for support, the more informative crossreference supports the Defendants’ reading. In providing background to the rulemaking, the
Secretary explained, “[i]f the AS-IA issues the decision under this part, the decision is a ‘final
agency determination,’ and the decision is final for the Department. See 25 C.F.R. 2.6(c). A
party may then seek judicial review of this decision under the APA.” Id. at 67,929. The citation
to 25 C.F.R. § 2.6, “Finality of decisions,” which was promulgated prior to the 2013 revisions to
Section 151.12, is informative because it specifies that decisions by BIA officials become
effective when the time for filing a notice of appeal has expired and no notice of appeal has been
filed, but that decisions by the AS-IA are final and effective immediately. See 25 C.F.R.
§ 2.6(b)-(c). This provision may sound familiar because it is the same setup that Section 151.12
implemented, indicating that the 2013 revisions to 25 C.F.R. § 151.12 sought to mirror the
previously established dichotomy between decisions of BIA officials (not judicially reviewable
without administrative exhaustion) and the AS-IA (immediately judicially reviewable as final
The Plaintiffs also urge application of the legal maxim expressio unius est exclusio
alterius and the canon against superfluity. The Plaintiffs highlight the fact that the former
version of Section 151.12 only referred to the Secretary, whereas the 2013 revisions introduced
the “[AS-IA] pursuant to delegated authority” as an authorized final fee-to-trust decision-maker.
Pls.’ Mem. for Summary J. 8. According to the Plaintiffs, the Secretary’s addition of this phrase
necessarily means that: (i) all other roles—including the Principal Deputy Assistant Secretary—
are excluded (expressio unius), see Pls.’ Reply 5-6; and that (ii) the Defendants’ reading renders
the phrase “the [AS-IA] pursuant to delegated authority” superfluous because the Secretary is
already defined as the “Secretary of the Interior or authorized representative.” Id. at 7-8.
Even assuming that the canons of expressio unius and against superfluity apply with the
same force in interpreting regulations as they do with statutes,12 neither provides affirmative
evidence that the Secretary intended the fee-to-trust decision-making authority to be exclusive.
Section 2.6 has also been consistently interpreted by the Interior Board of Indian Appeals to
permit delegation of the AS-IA’s non-exclusive duties. See Forest County Potawatomi
Community v. Deputy Assistant Secretary-Indian Affairs, 48 IBIA 259 (2009) (holding that a
decision by the Associate Deputy Secretary acting pursuant to delegated authority by the AS-IA,
is final); Ramah Navajo Chapter v. Deputy Assistant Sec’y for Policy and Economic
Development-Indian Affairs, 49 IBIA 10 (2009) (finding proper delegation of the AS-IA’s
duties). To the extent that Section 2.6 informed the structure and intent of Section 151.12, these
cases corroborate the Defendants’ reading that the AS-IA’s non-exclusive decision-making
authority under Section 151.12 may be delegated.
The case law that the parties cite addressing basic interpretive principles primarily involve
statutes. At oral argument, Plaintiffs and the Department stated that the basic principles and
canons of statutory interpretation can generally be equally applied to regulations. Tr. of Mot.
Hr’g 12-12, 23-24. I note, however, that at least one canon may have less force in an
administrative setting. See Van Hollen, Jr. v. Fed. Election Comm’n, 811 F.3d 486, 493 (D.C.
Cir. 2016) (“The expressio unius canon operates differently in our review of agency action than
it does when we are directly interpreting a statute.”).
The significance that Plaintiffs ascribe to the 2013 modifications is prejudiced by their
overemphasis on the finality/non-finality of the action. As previously explained, the overall
purpose of the 2013 revisions focused on which trust decisions are subject to judicial review, and
when they become so subject. This necessarily implicates finality insofar as that only final
decisions are immediately reviewable, but the greater context of the 2013 revisions indicates that
the Secretary sought to clarify the applicable procedures and timelines for challenging agency
action. See 78 Fed. Reg. at 67,929. To that end, the revisions added subsections (c) and (d),
deleted a 30-day waiting period for final decisions, required BIA officials’ decisions to be
published, and reiterated that BIA officials’ decisions must be internally administratively
appealed before becoming judicially reviewable. Id. at 67,929-67,930. This broader context
shows an emphasis on a decision’s impact on the procedures to follow after a decision is
rendered. Thus, while Plaintiffs stress that the final nature of the decision informs who should be
making the decision (i.e., only the Secretary or the AS-IA), the opposite is true: Section 151.12
clarifies that it is the decision-maker (i.e., the Secretary, his authorized representative, the ASIA, an individual acting for the AS-IA under delegated authority, or a BIA official) who drives
whether the decision is final. When appropriately understood in this light, Section 151.12(c)’s
phrase “[AS-IA] pursuant to delegated authority” works to clarify that decisions made by the
AS-IA, or those that have properly stepped into his shoes, are final, but that decisions made at
the BIA-level are not. Consequently, the 2013 revisions do not evidence intent to make the
authority exclusive, and the Plaintiffs’ use of interpretive canons does not prove otherwise.13
The Plaintiffs’ constitutional argument similarly fails due to overemphasis on the finality of
the action. The Plaintiffs argue that the Appointments Clause “does not permit such significant
power [of taking land into trust] to be vested in an inferior officer,” but their accurate admission
that the Principal Deputy Assistant Secretary is an inferior officer defeats their argument. See
Pls.’ Mem. for Summary J. 15. Constitutional limitations on the scope of Executive Branch
Understanding the “[AS-IA] pursuant to delegated authority” as someone who is properly
carrying out the AS-IA’s delegated authority further comports with the background and purpose
of the 2013 amendments, and particularly the acknowledgement that the “vast majority of trust
acquisition decisions are delegated to and issued by BIA officials.” Id. at 67,929. Because
decisions by the Assistant Secretary’s office typically go through several layers of review before
issuance, id., it is consistent to establish a scheme that, in one subsection, addresses decisions
that are final; and in another subsection, sets apart the procedures following a decision at the
BIA-level, a subordinate agency under the AS-IA’s office, and clarifies that those decisions are
not final and must be administratively appealed. See 25 U.S.C. § 151.12(d); Department Manual
105 DM 2 Organizational Chart.
2. The Authority to Make Final Fee-to-Trust Decisions Was Properly Delegated
to Mr. Roberts
Having established that the authority to make final fee-to-trust decisions is non-exclusive,
I next must determine whether the authority was properly delegated to Mr. Roberts. I conclude
that it was.
The Department Manual Part 209, Chapter 8 concerns the office of the AS-IA, including
delegation to the AS-IA. As the Plaintiffs themselves recognize, in Section 8.1, the AS-IA is
delegated the authority to “exercise all of the authority of the Secretary,” with one limitation not
relevant here. Department Manual 209 DM 8 § 8.1; Pls.’ Mem. for Summary J. 16. Chapter 8
employee authority has focused on the line between officer and nonofficer, not principal and
inferior officer. See Edmond v. United States, 520 U.S. 651, 662 (1997). In any event, the
Principal Deputy Assistant Secretary is subject to supervision by the Deputy Secretary and
ultimately, the Secretary. Department Manual 105 DM 2 Organizational Chart; id. 110 DM 8
also describes the role and duties of the Principal Deputy Assistant Secretary, who, “[i]n the
absence of [the AS-IA] . . . may exercise the authority delegated in [Section 8.1 to the AS-IA],”
with one limitation not relevant here. Id.; Department Manual 209 DM 8 § 8.4(B).
On January 19, 2017, Mr. Roberts’ term as the Acting Secretary pursuant to the FVRA
had expired, and he was the Principal Deputy Assistant Secretary. The AS-IA position remained
vacant, with no acting or confirmed officer in the role. Thus, Mr. Roberts, as the Principal
Deputy Assistant Secretary, was authorized to exercise the AS-IA’s non-exclusive authority,
including the authority to make final fee-to-trust decisions. The Plaintiffs’ arguments to the
contrary are mistaken. The Plaintiffs primarily challenge the Department Manual as incapable of
“displac[ing] the contrary provisions of Section 151.12(c),” which the Plaintiffs proffered as
mandating final fee-to-trust decisions only to the Secretary or AS-IA. Pls.’ Mem. for Summary
J. 17. As I previously addressed that argument, and have now explained that Mr. Roberts’
authority properly flowed pursuant to the Department Manual, it is clear that the January 19,
2017 Record of Decision was final.14
The Plaintiffs also challenge Mr. Roberts’ authority based on several technical aspects of the
Department Manual. Pls.’ Mem. for Summary J. 16-17. However, the provisions that the
Plaintiffs take issue with, Section 8.3 of Part 209, and Section 2.5 of Part 302, pertain to the ASIA’s authority to redelegate, and to delegations of authority to PAS successors. See Department
Manual 209 DM 8 § 8.3; id. 302 DM 2 § 2.5. Neither section is applicable here, as Mr. Roberts,
in his role as the Principal Deputy Assistant Secretary, stepped into the shoes of the AS-IA to
exercise the AS-IA’s non-exclusive authority to make final fee-to-trust decisions. As this
authority is clear from the Department Manual, I need not consider whether the Deputy
Secretary’s letter of January 19, 2017 independently authorized Mr. Roberts’ actions. See Pls.’
Mem. for Summary J. Ex. I, ECF No. 33-1.
3. Mr. Roberts’ Exercise of the Non-Exclusive Authority to Make Final Fee-toTrust Decisions Did Not Violate the FVRA
Mr. Roberts’ action did not violate the FVRA. Under the FVRA, the “first assistant” to a
vacant PAS position automatically assumes the “functions and duties” of that office for up to 210
days. 5 U.S.C. §§ 3345(a)(1), 3346(a)(1). These “functions and duties” encompass all of the
obligations associated with that office, including any that are “required by [regulation or statute]
to be performed by the applicable officer (and only that officer).” Id. § 3348(a)(2). In other
words, during the 210-day period, the Acting officer may exercise duties both exclusive and nonexclusive to that office. After the 210-day period, in the continued absence of a PAS, the FVRA
“permits non-exclusive responsibilities to be delegated to other appropriate officers and
employees in the agency.” Guidance on Application of Federal Vacancies Reform Act of 1998,
23 Op. O.L.C. 60, 72 (1999); see also Schaghticoke Tribal Nation v. Kempthorne, F. Supp. 2d
389, 420 (D. Conn. 2008) (“Accordingly, any functions or duties not required by statute or
regulation to be performed by the official occupying that position may be reassigned to another
official within the agency or department.”).
Accordingly, Mr. Roberts was empowered, as the Acting AS-IA, to exercise the AS-IA’s
exclusive and non-exclusive duties between January 1, 2016 and July 29, 2016. See Pls.’ Mem.
for Summary J. 8. After that period, and on January 19, 2017, Mr. Roberts was empowered, as
the Principal Deputy Assistant Secretary, to perform the AS-IA’s non-exclusive duties, such as
the authority to issue final fee-to-trust decisions. This was, as explained in Part III.B.2, pursuant
to appropriately delegated authority, and does not violate the FVRA.15
As Mr. Roberts’ decision was properly made, I need not address whether Mr. Black’s
subsequent actions ratified it. As Plaintiffs explain, the FVRA prohibits post-hoc ratification.
Pls.’ Reply 12 (citing 5 U.S.C. § 3348(d)(2)). But since Mr. Roberts exercised non-exclusive
C. Count Two: Mr. Black’s Actions Were Not Ultra Vires
Plaintiffs’ secondary challenge is to Mr. Black’s decisions to acquire title in trust for the
Tribe (February 10, 2017), assume jurisdiction over the Plaintiffs’ internal administrative appeal
(March 7, 2017), and dismiss the appeal (July 13, 2017) as violations of agency regulations and
the FVRA. Am. Compl. ¶ 82. Mr. Black is the Special Assistant to the Director of the BIA. Id.
at 80; Fed. Defs. Answer to Pls.’ Am. Compl. ¶ 80.
On January 19, 2017, then-Secretary of the Interior Sally Jewell issued an order
“temporarily redelegating authority” for certain PAS positions effective at noon Eastern Standard
Time on January 20, 2017. Pls.’ Mem. for Summary J. Ex. G §§ 1, 5. The order delegated
Mr. Black the non-exclusive functions and duties of the AS-IA. Id. §§ 3-4.16 This defeats the
Plaintiffs’ challenge to Mr. Black’s February 10, 2017 decision to acquire title in trust for the
Tribe, as Mr. Black was performing the duties of the AS-IA under 25 C.F.R. § 151.12(c)(2)(iii).
The Plaintiffs’ argument that the responsibility to take land into trust is exclusive to the
AS-IA (and therefore not delegable) is unavailing because there is no positive indication that this
was intended to be an exclusive duty. Indeed, the Plaintiffs do not offer any evidence to support
this claim. See Pls.’ Mem. for Summary J. 19. To the contrary, there is evidence that taking
land into trust is non-exclusive, as a BIA official may “immediately acquire the land in trust”
upon the satisfaction of certain temporal or administrative requirements. 25 C.F.R.
§ 151(d)(2)(iv). That the BIA official has to wait longer to take the land into trust does not
authority that did not violate the FVRA as an initial matter, this argument does not advance their
This order superseded Mr. Roberts’ assumption of the non-exclusive responsibilities of the
AS-IA pursuant to Department Manual Part 209, Chapter 8, because Chapter 8 is “subject to the
limitations in” Department Manual Part 200 Chapter 1, Delegation of Authority by the Secretary
of the Interior.
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