establish geographic limitation on land acquisitions that can be considered taken into trust as part of the restoration of lands under the indian gaming regulatory acts so called rescored lance exception his prohibition on gaming on lands acquired after its anatomy date is even i believe the defendants agree the coroner need not look any further than the language used in the restoration act slimey answer and carter lake iowa that is not an ox or avoid counties nebraska the department's own rules support this interpretation and should have been applied when considering the tribe site specific gaming ordinance r interpretation now the restoration act or the the grandfather well the restoration act in particular in terms of considering it to be to include lan wame as opposed to the to the illicit in the in the act i would say that given the fact that the statute i think is subject to they should be granted in this to matter the bottom line is is that they have promulgated a regulation in which they purport to tell how these regulation that united two hundred and eleven that's where these lands should fall as mentioned earlier the p r i expressly authorizes or requires the secretary to take lands into trust with them both  therefore that geographic limitation can be ignored i don't believe should be entitled deference i think the supreme court have found that if you're going to take in consistent approaches throughout that again sion and that you're doing so merely for the i can gain yes eight to get a good litigation position the net deference should not be should not be granted and looking at the actual statutes here today the enacting the pocket restoration act congress did intend to limit trust acquisitions that part of the aka tribes restorationist lands located in traditional statutory tools construction to assist it in finding whether or not there is a plain meaning in this particular case i think it was mistake for the defendants to interpret the pocket restoration act in isolation  that in fact the indian gaming regulatory act does have relevance to this analysis and should have been taken into account and the two should have been considered together after all it's the state's challenge to this matter of a grows gaming prohibition on after choir lands and the restored lance exception so therefore congress would have understood the significance of designating within the p r a certain lands are geographically areas where the land additional at bridge in those same county pts it's within the section entitled restoration of rights that this instruction appear act congress did not need to draft more specific restriction on gaming because aren't for him it's gaming on after choir trust lantz not procured as part of a trial restoration so assistance because they predate growth so therefore the qualifying restored lance would not have had the same significance there was no exemption to take into account in geographic limitations necessarily would have been i were terminated by the federal government basically restore that which they were stripped of you know like other tribes the pocket restoration act does make available that the poc to show benefit from all a political federal eligible to game on those lands they must go through this so called two part terminations process so limiting restored lands to enumerated county not diminishing the pockets right under iraq compared to those other non terminated tribes nonetheless the p r a does allow for the discretionary use of ira with an ox and boy county it's and those lands arguably would be b store because they are within that same paragraph and the same geographic area it's so restricts where gaming may take place and it's long been recognized that not all lands obtained in trust  under the indian regular reorganization act would qualify as gaming eligible restore plants that there has to be some limitation and by defining that geographic area that provides a reasonable basis for how they think these restoration actually be applied however in this particular case the agencies went out of their way to implement the grandfather clause to avoid applying those those regulations and in this particular case they used both versions or parts of the grandfather clause the st being that there was a final agency decision and the nd that there was an outstanding legal opinion from one of the agencies well i would say there is no finally decision that the two thousand and seven decision was remanded for further consideration it was incomplete there was more judicial work to be done that's why we're here today dealing with the two thousand and seventeen decision that the court ordered the agencies to make as far as michael gross is legal opinion they claim that that triggered the grandfather under subsection b but grosses opinion didn't trigger that effect but i would ask you what it is two of the members i know said on this panel last time although the judge will as initial ruling on the prior judicial review was reversed would you consider that still be in effect you know i would think not and so lastly neither of the agencies are mr gross of the union address the question of whether or not the pocket restoration act is guiding as to how we should decide how they feel that this so called ambiguous grandfather should be applied but i would have looked at the purposes for a grandfather clause such as that they allow  that those preexisting restored lands determination stand undisturbed so we prevent undue hardship for those who we live in also promote finality of agency citizens neither of which those  one was negatively affected by any of these things instead it would appear to me that the grandfather clause is being used against instanced as litigation convenience five dr max that in other cases where are ambiguity in the grandfather was carrots of the agency apply both the common law reaction burst house and the agency regulations but in those cases they reached the topic why is there a final decision of the district court here it seems to me that the district court remanded the case to the agency for further analysis on restored lan if the agency had decided these were not restored lands there'd be no point to this appeal because the state would prevail and if the agency concludes that there are restored lands then were in a situation of potential piecemeal appeals where you have this appeal and then you have a follow on appeal about whether there restored lands analysis is correct so querrey why there's a final decision if you're citing team case please tell me what is the limiting principle on that and whether that's an outlier in the country on the definition of final decision as far as the of the question of  i understand that obviously that the court decides for itself whether whether it has jurisdiction in this particular instance that you know from the record the play that's actually sought permission from the district court to certify in a lock tory appeal on the question that that's now before you and dismissing are over ruling that the judge made a determination under the system factors that this was a final decision because the limited matter of the question that she remained it back to the government did not require a great deal of consideration or thought in fact the government had actually responded with a rematch decision prior to the court even ruling on those motions so the framework because there was just that that tiny bit of reconsideration of those discretionary factors that were going on out i understood that i mean i read her opinion of course and i understand that there's a law that says if the case is sent back for what the courts have called ministerial functions then the district court's order can be final but it seemed to me that there's a real question here whether the rule our request to find that the p r a you know was binding us to the restored lance question and the other matter and quite frankly at the end of the day i think the p r a question is is the true issue that will dictate knox and boyd counties nebraska this is in the appendix of fifty four to sixty nine the national i'm in gaming commission and incorporated that analysis into its november two thousand and seventeen decision  concluding furthermore that the partner lake is parcel it is properly considered restored land which the tribe make gain the just who are under took its own statutory interpretation of the restoration act and it reached the same conclusion as the agencies and in a very brief statement we think is suspenders that if there is any question about that we will defer  which mean of course text but considering all the tax read in context in the structure of the act as a whole including the legislative history the purposes of the statute and it must  be construed against the backdrop of other statutes which of course include it in reorganization act and the indian gaming regulatory act but also other pocket restoration excuse me other restoration act of which there look at the statute as a whole congress intended this secretary to retain authority under the indian reorganization act to take land into trust when you look at where that land was expected to be taken into trust you have section which the fines a large service area a team counties where the ponta people lived congress did not want to move the pa the people back to the historic reservation in boyd and knox counties they thought that would be arrest recipe for disaster so they instead expressed clear intent to allow the punk of people to remain living where they were living and to provide services to them under section five and under section and to provide economic development to them  area that is not completely included all the counties but from north to south and east to west the bell two hundred miles in each direction congress directed the secretary to submit an economic development plan back to it that plan was developed which does include the need for economic development which require taking land into trust in well different parts of the service area that plan was submitted back to congress in two thousand and congress did not disapprove it so that when you look at so thirty five and ten to get other understand the overall structure also the legislative history reveals that the reason why the tribe was insisting on a mandatory acquisition and boyd and knox counties that they wanted to establish their cultural center of it at a gathering place that was not identified as the core of their economic development there would carry the tribe but were under its current circumstances but there was a very specific desire for that land in their historic preservation area and that was in fact what the how the tribe as yours that land they do have a cultural center there they have a buffalo herd there that is where they have their annual powwow the community does gather there but that was not it was not congress's intent to limit economic development tribes is the same purpose as the restoration act so there is no reason why congress had focused on gaming in particular which it's not clear that it did that it would have reached the conclusion i would like any gaming there were car in boyd and knox county there is no reference to gaming in the park or restoration act there are there there is no because the minatory acquisition language is in section four called restoration of rights that suggests that that the congress meant that this would be the restored land haggis of course well let me point out the entire statute is called the punkah rest ration so one would think that restoration restored land status could come from any provision and of course the entire statute must be read as a whole but also when you look at the evolution of that provision section or as interior carefully did the title came before there was any reference to kno and boyd balinese the original bill would have a layout or whatever required interior to take land into trust where ever the tribe offered a parcel and the department of the interior said well that's very broad we don't think we should be a brick wired to take any lay and it's offered to us so the restriction on the mandatory acquisition was then restricted to boyd and restoration erik's and they have many of the same pieces but they rearranged differently and some of them have the same headings but text under this heading is different in this statute  mandatory idea was put under the having restoration of rights as i said it was added to that later other statutes have similar provisions under other captioned headings you need to look at the statute as a whole not just the caption and in this regard there are two other restoration acts that interior found particularly informative  souls but the court held that yes those mandated parcels qualified for the restored lands exception but that was not a limitation for other parcels we have to apply the fact based test and it went on to do so similarly a city of roseville versus norton the d c circuits decision in two thousand and three that interpreted the auburn indian restoration act of one thousand nine hundred and ninety four that act has three different provisions one had mandated acquisition for the land within that tribes historic preservation there was a nd provision that said the secretary may take landed to trust in a specific county and that there was a rd provision and that said the secretary may take land into its process through well that service area i believe that was a five county service area in central california and the d circuit looked at that and they rejected the notion that restored play and was limited to parcels the mandated parcels within the tribes historic reservation and it language of that statute but importantly it looks at the statute as a whole and it looked to the purpose of that restoration act which is the same purpose as the other restoration act which is to remedy the effect applications that take land into the process for gaming would be subject to the two thousand a regulations and at this point where thirty years out from the  ninety restoration act and under the temporal connection back for the tribe would not have that right so this is the one parcel that would qualify or restored lands say that if they just said something more general like lands acquired in knox and boyd counties shall be considered as a store then the maximum at least would have some relevance but you would still have to and the agency isn't title to deference or that point when the agency originally proposed the two thousand and eight regulations they were proposed in two thousand and six there was no grandfather untoward in that case the only issue was this historical connection issue and on that point there is no difference between the two thousand and eight regulation and the common law three factor test see if they don't prevail in this court to go on to argue that to ninety to twelve applies and the tribe doesn't satisfy those criteria we disagree with the arguments that they made in their reply brief about why that regulation isn't satisfied of course the you know the agencies would have to decide that in the st instance but the reasons that the tribe and what is the limiting principle on when a decision that remains to an agency is a final decision yes your honor we took a long look at  that case in deciding whether we would move to dismiss the appeal or lack of jurisdiction and we'll timidly did not file such a motion  hold that there would not be jurisdiction having got this far it would be useful to get an interpretation of the restoration act i know that already has put us in that position we do all this work so you need to kind of overlooked the jurisdictional problem maybe and that's where we are you decided not to move to dismiss maybe you thought system was judgment arguably and the district court decided not to retain jurisdiction and this really is a perfect bill ninety two b question and so i know i  override and those regulations that rinse your debt detail in the making process may have determined a different outcome in those particular cases i would just end with stating that i view this is the agency striving to have it both way the ruling allows gaming when their own regulations would not know that the state of nebraska is moving towards casino gaming how will they treat the trust lands the  lincoln the rules apply that's not bach knox or boyd counting no gaming allow i would ask you to please reverse the findings and determine as a matter of law that carter lake parcel does not qualify under eligible restored lance and thank you for your time today