good morning your honour's sean sherlock for the appellants i would like to reserve three minutes time for rebuttal and may it please the court the st issue i'd like to cover in my time here this morning is to address the district court's conclusion that congress plain language produces an absurd result the district court here reached its judgment only by concluding that ignorance plain language although clearly in an ambiguous exempting state compacts from the johnson act and not exempting secretary procedures from the johnson act nevertheless the plain language cannot be enforced because to do so would produce an absurd result my st point on this is that this is a quite extraordinary conclusion when you consider all of the opinions of the various courts that the u s supreme court this court the other circuit courts of appeal which have uniformly and repeatedly observed that it was remedial scheme is carefully crafted and intricate meticulously detailed and finely tuned our district court really stands alone in concluding that the language produces an absurd result and the standard the legal standard here for whether or not the court should depart from statutory language in the face of a purported absurd result is given to us by the u s supreme court's opinion in tennessee valley authority versus hill in that case the court tells us that the court should depart from the statutes plain text in the face of a purported absurd result only in rare and exceptional circumstances and this is the important part only when there is something to make plain the intent of congress that the letter of the statute should not prevail in here of course in this situation we have nothing to make that plain to the contrary what we have in the legislative history points in the other direction simply reaffirming the text of the statute and here the district court to reach its conclusion really had to strain to interpret the statutory language quite narrowly in quite a cramped manner that created and produced its own internal inconsistency and conflicts with other federal laws rather then interpretive language more naturally in a manner that would harmonize it both internally within itself and with other federal laws and in so doing the district court's opinion produces its own absurd results for example under the district court's opinion that the secretary lacked any discretion to consider other federal laws may not consider other federal law in in person prescribing the procedures we end up with a situation where a state and a tribe could collude as they appear to have done here to structure the procedures so that they can avoid federal laws and according to the district court's opinion there is nothing that the federal government or the courts can do about that  example arises under it reception twenty three dollars according to the district court's opinion in which the tribal state compact is to be treated as the functional equivalent with secretarial procedures then under section twenty three dollars when the secretary issues the procedures the federal government would lose exclusive jurisdiction over the state's gambling laws and the state would gain that jurisdiction back and that is exactly counter resolved when you consider that secretarial procedures are imposed upon the state by a federal officer after the state has declined or rejected its opportunity to regular gaming under procedures and so rather than just accept what the plain language of the statute tells us which is that there is no exemption from the johnson act for gaming under secretarial procedures we end up with this absurd and dangerous result whereby all of federal law can be trumped by a compact selected by a private mediator in a non public proceeding behind closed doors from between a compact one proposed proposed by a state you know section two thousand seven hundred and ten says that the secretary shall prescribe procedures quote consistent with the proposed compact selected by the mediator isn't the use of the word compact significant here the the compact i don't believe it is i don't believe that the argument turns on that your honor because to that point when the mediator selects in the process to that point it is a compact because the tribe proposed a compact the state proposed a compact the mediator selected from one of those compacts and still at that point there is an opportunity for the state to consent to that compact for sixty days time when it doesn't then it goes to the secretary and it becomes the secretary has to issue procedures and so clearly procedures are a different thing than a compact congress used a different name for them congress prescribed a different procedure for them and substantively they are quite different in that in a jurisdictional sense at a minimum and so the nd issue i'd like to address today is the issue of congressional intent and with regard to any concern that not allowing slot machine gaming under secretarial procedures will somehow got a grizz remedial remedy contrary to congress intent it's very important to remember that  and eighty eight when a girl was an active slot machines were illegal in california and most other states except for nevada and new jersey and so we know from this court's opinion in romsey that therefore the states had no obligation to negotiate or allow slot machine gaming on tribal lands at that time and so to to prohibit slot machine gaming in tribal casinos in the year two thousand and twenty under secretarial procedures we end up with a result that would be no different than it would have been following it reza doctrine in one thousand nine hundred and eighty eight and so we cannot say that there was any congressional intent that slot machine gaming should be allowed and tribal casinos the rd point i'd like to make is with regard to the indian cannon of construction and explain why that is the indian cannon of construction does not apply in this case and there are two cases i'd like to cite the court to the st is the supreme court's opinion in chickasaw  nation versus united states in chickasaw nation justice brier well the point being that the indian canon is no trump card justice prior writing for the courts majority in that case declined to apply the indian canon holding that other circumstances evidence in congressional intent can overcome the various canons of construction including the indian camp and that the indian canon is not inevitably stronger than the other canons of construction of specially when interpretation of congressional statute is at issue as opposed to a indian treaty when the nd more important point on  canon is this case this court's opinion in reading rancher ia versus jewel because while a very narrow interpretation of the secretary's discretion to modify secretarial procedures or a very narrow interpretation of the phrase consistent with may favor the tribe in this case it could work to the disadvantage of another tribe in a different case and so we know from this court's opinion in reading rancher reimburses jewel that the indian canon is to be applied to construction or to the interpretation of a statute all mean when to do so would uniformly benefit all tribes which it would not in this case and then the th and final point i would like to address this morning is why it is that need does so called rule of reason does not apply in this case to excuse the government from complying with nepa and the clean air act and when you look at all of the various cases on this issue the differentiating factor that distinguishes those cases in which need is required from those cases in which media is not required is whether there is some truly genuine irreconcilable conflict between the agency's duty under need to apply to the fullest extent possible versus its mandate under the underlying substantive statute and there are two cases from this circuit that i think are particularly applicable to our case the st san luis and delta mendota water authority versus jewel in that case it involved the question was whether or not the bureau of reclamation had to comply with the need before it implemented a biological opinion under the endangered species act the natural resources defense council argued that to require nepa compliance would conflict with the endangered species act goals by imposing additional procedural requirements on the bureau's efforts to protect endangered species and this court held nevertheless that the bureau did need to comply with the new and holding quote the statu does not permit case by case exceptions that assess how need interacts with the substantive statute at issue that was this court's opinion from two thousand and fourteen and that is exactly what the district court did here the next case would be  jones versus gordon which arose under the marine mammal protection act in that case despite a statutory timetable the very strict statutory time table requiring the agency to issue a permit within a given time and despite the agenc own regulation that required that timetable to begin as soon as practical this court held nevertheless that because it was not impossible for the agency to comply with the new it must comply with citing the congressional mandate to apply to quote unquote to the fullest extent possible and also citing congressional intent that the court's quote make as liberal an interpretation as they can to accommodate the application of ne now the other cases holding that new but does not apply upon which the district court in my friends on the other side namely department of transportation versus public citizen and the alaska wilderness league those cases are different because in those cases the agency had no discretion other than to make an up or down binary decision whether to grant or deny a permit or a plan based on whether or not the applicant had met the statutory  checklist of requirements and the court's made clear that the agencies in those cases had no discretion to impose any further environmental requirements upon those permits or plans here by contrast we have a situation where there is nothing in that prevents the secretary from complying with new power or the clean air act and there is no mandatory timeline there is no sealing off of the secretary's discretion to comply with these environmental laws and to hold otherwise would create a dangerous expansion of naples rule of reason contrary to congress's intent that need to be applied to the fullest extent possible if there are no questions your honor i'd like to reserve the remainder of my morning your honor may please the court my name is rachel heron on behalf of the federal police for your court's awareness and if it's agreeable i'll plan to use about nine minutes of the time that's been allotted to the alleys before yielding the podium to counsel for the interven area the question before this court is whether under the indian gaming regulatory act or agra a state's refusal to negotiate in good faith with an indian tribe condemns that tribe to conduct a lesser form of class three gaming on indian lands than that enjoyed by other tribes plaintiffs stand up says yes specifically stand up argues that class three game mean under secretarial procedures which are a substitute for gaming under a tribal state compact is lesser than gaming under a literal tribal state compact in two ways st that the scope of gaming under secretarial procedures is lesser because it  include slot machines and nd because any class three game in authorized or secretarial procedures must be preceded by a time consuming environmental analysis above and beyond the extensive environmental analysis that the secretary already performed at the time it took the slant into trust stand up is wrong for to reach stand up is wrong on both counts so if it's agreeable to your honor's i'd like to start  with the scope of game in question the slot machines question stand up presents this case as if it's a tradeoff between plain text versus some other policy goal that is the wrong framework this case is about plain text of a provision in a vacuum vs the text of a provision in the context of other text in the statute to elaborate on that everyone agrees that the remedial provisions of which are the provisions that provide for the issuance of secretarial procedures do not themselves contain any limitation on the types of class three gaming which is defined by statute to include slot machines that may be conducted under secretarial procedures to the contrary the statute says that secretarial procedures must allow for class three game mean without limiting language and further provides that that must be consistent with state law and a compact selected by a court appointed mediator or included the use of slot machines there so instead of relying on that provision which is the most direct governing authority on what secretarial procedures do where we would expect any limitation on what secretary of procedures can contain to occur stand up instead looks at section two thousand seven hundred and ten dollars d six of the statute which provides an express exemption from the johnson acts with regard to gaming conducted under a tribal state compact now i will readily admit that if we were looking at that language in a vacuum the most obvious reading would be that under a tribal state compact simply means under a literal tribal state compact but when we look at that language in the context of the statute at large we know that actually compact has a broader meeting specifically congress uses the word underage or the phrase under a tribal state compact in agro to refer to both gaming that is conducted under a literal compact or or rather and gaming that is conducted under the secretarial procedure substitute to a compact i think the clearest place that we can see that usage is in section two thousand seven hundred and ten dollars d one of the statute which says and i'm quoting authorizes class three game mean under secretarial procedures as well that statement in two thousand seven hundred and ten d one cannot be correct cannot be true in less we understand the reference to nothing in gives the secretary the authority to consider alternatives to the media or selected compact do you concede that need generally requires more than just a consideration a proposal alternatives i'm sorry i'm not quite sure i guess i'm just i'm just trying to figure out what why is or is it your position that it does not authorize the secretary to consider the environmental impacts here of the mediator selected compact or mitigation of its adverse impacts yes so i would phrase it this way we think it does not provide the secretary sufficient discretion to alter the environmental effects of the mediator selected compact terms to give rise to a requirement to conduct in the but analysis under the standard that's been set forth in public citizen so i guess does that mean then in prescribing these special procedures that the secretary is permitted to modify a mediator selected compact that by could violate federal law so i am not saying and this court need not decide that the secretary has no ability to deviate from the terms of a that were selected by the mediator for any reason the question is whether whatever amount of discretion the secretary has extends to including environmental conditions that were not part of one of selected compaq's and i understand why the secretary does not have that kind of discretion i think we again need to look at the context as you said secretarial procedures are a substitute for a tribal state compact and there are a substitute that occurs not when the tribe has done anything wrong but when a court has found that a state did not meet its statutory obligation to negotiate in good faith with the tribe in a circumstance where the state doesn't negotiate in good faith and where a tribal state compact is reached there is no dispute that the secretary of the interior does not have an opportunity in that process to alter the terms that were selected in order to account for environmental concerns to nonetheless find that in the secretarial procedures context the secretary has the discretion to alter the terms of the mediator selected compact in order to avoid various environmental concerns would create a disparate burden on tribes that are required to resort to the secretarial procedures as a result of the state's intransigence alerts the already for i think that's an inherent in the way that we in the in the statute there's no question that it would create a different burden in the secretarial procedures context than in the compact context so i think well in the compact context but would apply but in the sector procedures compact the same should be true of secretarial procedures at least in the absence of some text that clearly indicates the contrary here there is no such text that indicates the contrary because we have this this  language regarding what the secretary must do when it's issuing secretarial procedures st puts the court appointed mediator in the driver's seat not the secretary it could have designed a process where the secretary gets all sorts of you know free flowing discussion on what the the material inside these procedures would be but it's not what they chose and nd because there is a list of things that the secretary is to consider when it is putting the secretarial procedures in place need an environmental concerns are not listed i think that omission in the context of a situation where we would be setting up a disparate burden on tribes that must do a compact versus secretarial procedures shows you that there is no such discretion here i would like to yield the remainder of the time in less the court has a nother question for the united states thank you please the court daniel spinelli for north fork i'd like to start by picking up on the question about that the court asked the united states i think it's critical to understand that there was an environmental impact statement prepared  and a clean air act conformity determination prepared at the appropriate time in this process at the time when the secretary actually had discretion over whether or not north fork scheming project would go forward and over the scope and shape of that gaming project that was when the secretary issued its two part determination concluding that a gaming project would be in the best interest of the tribe and not detrimental to the surrounding community it generated a nine hundred dollars page environmental impact statement the process took several years it listed pages and pages of mitigation measures that north fork was required to undertake and concluded that with those mitigation measures it was appropriate to approve north fork's gaming project the secretarial procedures are not the same thing nor stand up challenge to the sufficiency of the environmental impact statement and the conformity determination in the district court for the district of columbia solution the environmental review occurred when the land was taken in trust it occurred your honor in conjunction with the two prior secretary two prior agency actions that are relevant in this case st the secretary made a two part determination under it gra concluding that gaming on north fork's madeira property would be in the best interest of the tribe and not detrimental to the surrounding community that included a full process an environmental impact statement and that process was also relied on when the secretary issued its trust determination taking the midyear a parcel into trust for north fork so when when stand up calls the secretarial procedures the approval of a gaming project that's not accurate that approval happened through the two heart determination process so it doesn't matter that the secretary is not involved in negotiating the compact between the tribe and the state well no in this case it it doesn't matter the point is that there was a full environmental impact analysis conducted during when the two part determination was made the state's governor then concurred in the two part determination so this the state has not challenge the sufficiency of the environmental analysis the state is not challenging the secretarial procedures as you observed in the previous case the state is not here we have a private interest group purporting to assert the state's interests and so would it be appropriate or why wouldn't it be appropriate for the secretary to supplement the prior environmental review there wasn't a need to do so the project is the same so the secretarial procedures pacifically incorporate all the mitigation measures in the environmental impact statement and say that the tribe has to abide by those procedures and the the project is the same project that was approved through that earlier process if there had been a need to do so could have been done to supplement the review i don't believe the secretary has the discretion when issuing secretarial procedures to undertake that kind of environmental review for the reason that the united states explained what secretarial procedures are a substitute for a compact they're designed to be as close as possible to what the state and the tribe would have agreed on had they reached agreement and in this case the state and the tribe each submitted compacts to the mediator that were virtually identical and the secretarial procedures are consistent with that when the secretary approves a compact no one has ever suggested that the secretary needs to go through new procedures and secretarial procedures are no different but in any event i think the point is that when the secretary did have the discretion over this project to consider whether environmental impacts meant it shouldn't go forward at all or should only go forward in some different form the secretary under took that analysis and that analysis  sufficiency of that analysis was affirmed by the district court and the d c circuit do we have a sense of how much additional time it would take to go through the environmental analysis or the conformity review  the tribe has been trying to get this project off the ground now for fifteen years it's been in litigation for a very long time and it doesn't make any sense either from a need for perspective or from an effective to require the secretary to undergo the same lengthy procedure again simply because california did not execute a compact with north i say a word about agro or just briefly or beyond your time so i'll give you one bit ok thank you your honor i just want to make one point which is this court has several decisions that discuss in detail the remedial provisions as one spokane is one the indian gaming cases are another all of those are cited in our briefs and what those cases say is that a group created the compact mechanism to give states a voice regarding to gaming on tribal lands but not to give it a veto if a state doesn't negotiate in good faith with the tribe over any form of class three gaming that's offered in the sta the secretary can intervene to impose a gaming arrangement without the affected states approval that's ring combat here no one disputed that california was obligated to negotiate with north fork over a class three gaming devices california has decided to allow slot machines and what it says is that once the state has made that decision it has to negotiate on a level playing field with everyone with all the tribes and indeed the state and the tribe both proposed identical compacts to the mediator both of which were centered on the use of gaming devices and in order for secretarial procedures that didn't allow north fork to operate class three gaming devices wouldn't have satisfied either requirement for secretarial procedures they wouldn't have allowed class three gaming which is a defined grow that includes gaming devices should be conducted nor would they have been consistent with a mediator selected compact and they wouldn't have provided north fork with the remedy it was entitled to thank you thank you unless a judge told you it with regard to my friend's comment about the i r having been prepared at an earlier stage in and it's true there was an e i are prepared at an earlier stage but it was not for the same project the project is different now under the secretarial procedures the comment that the project is the same is simply not true the project that was approved and we've covered this in our brief the project that was approved under the prior  determination in the it regaining determination was a sixty eight thousand dollars square foot casino floor in a single casino with two thousand slot machines but now under the secretarial procedures we have up to two casinos with up to two thousand five hundred dollars machines and unlimited size of the casino gaming floor and so the project is very much different the other thing i would point out on this issue is that there was no reliance by the secretary on that prior e i a s underneath in fact in addition to the statement in the approval letter stating that this these secretarial procedures are separate from the secretary's prior determinations we don't have that prior e i a s in the administrative record in this case demonstrating that there was no effort or intent by the matter off the ground for by years i mean the congress seemed to express intent that this procedure moved in a pretty quickly well and this does seems like it would really slow things now not for years the statutory or at least the regulatory timeframe for preparation of an e i yes that would be the minimum amount of time and and granted they can take longer than one hundred and twenty days but there's no reason to believe it would be years particularly where they already have a foundation to work from with the prior e i a s and in fact i would also point out that the department of the interior has its own need to regulations at forty three c f r part forty six and specifically section forty six one hundred and twenty which guide the agency when it is going to approve a project that is different from you know that varies from a project analyzed under a prior us and and in those cases you know was it dramatically different in terms of the modification i just i'm sorry your honor i don't know the history behind all of those details with those particular procedures but and whether or not complied even if it was not just because the secretary may have not complied with the law in two or three prior instances over the last thirty years seems to me a poor reason to to give that practice the force of force of law and overcome nepa if there are no further questions thank you and thank you very much thank you all for your presentations here this morning really appreciate the oral arguments to san francisco thank you