approve that request in the manner required by twenty seven ten b and twenty seven ten he of our group and he did so pursue it to an express delegation of authority by congress as a supreme court observed in the city of c improperly deemed the restoration act impliedly repealed second that the united she see unlawfully interpreted the restoration act of a statute that it does not administer third that the i g c's interpretation is not reasonable and on the idea that the i g r a slightly repeal the restoration act if if that's the case and you may say that it's not but if that's the case would you concede that under brand x our our prior clear then there is room for the agency to come to a different conclusion what the what this little one found was plainly clear unequivocal was whether cabazon band was incorporated into with go with this little one though your honor because the whole implied repeal of analysis in the slot of one had to do with the fundamentally different remedial schemes one related to class three gaming and whether the tribe could force state to negotiate a travel stay compact and with respect to the to the restoration act the question was can the state sue in federal court to enjoy a class three gam and because of that conflict the court felt bullied to get had to decide which of those two laws apply here for purposes of class two gaming which is a fundamentally different issue different analysis of the two statues can do work in harmony obviously to the extent that the tribes engaged in and authorized class to gaming or engaged in class to gaming that without in the ordinance that was approved by the end i g c state has full authority to proceed under the restoration act to seek an injunction to halt that conduct with ruth and of course the end i g c never found that the restoration act was to determine whether the n i g c has jurisdiction over the tribes restoration order for me to understand sort of at a granule level what the agency did i mean i've got a letter from the agency here the october eighth tw because if you look at the two letters all they say is that the department of interior concurred in our analysis and then the department of interior went on to find that actually the so hand is looking at this issue soley through the lens of the language in our view which is is the restoration act a sufficiently specific prohibition against class to gaming that the tribes do not fit within the class to johnson act which the senate report for uyghur says references gaming that utilizes mechanical devices as as defined in the johnson act and notes that this language was intended to make clear heard didn't legalize certain games that were already illegal as a matter of federal law then the center report goes on to identify the rhode island claims settlement act and the main indian claims settle  it in the statute and unlike the maine statute which requires that any future act of congress expressly state that it applies in maine the restoration act contains no savings clause that was intended to preserve it from the effect of future an act of laws in the margaret did come fourteen months after the restoration act was adopted and in fact the restoration act expressly makes the tribe eligible for the benefit of future laws and court uniformly characterize our group as a law that was and acted for the benefit of indian tribes so it is entirely possible for the so i don't want to be correct we don't think it is correct but it's entirely possible for it to be correct with respect to the administration of the restoration act which is the state one of the state's principal arguments it's important to recognize at the end i g c did not purport to administer the restoration act or to exercise its jurisdiction under the guise of the restoration that instead it analyzed its jurisdiction under the statute that it does it mr and it did so again pursuant to an unambiguous delegation of authority by congress chevron president holds that if depending on whether it thought the requirements of twenty seven ten be won or satisfied in the state's argument overlooks a number of cases where courts have deferred to agency action that entailed consideration of law outside the law that the agency administers the city of arlington held that there is no exception to the normal deferential standard of review for jurisdictional or legal questions concerning the coverage of of an the act and the court reached that conclusion based on earlier supreme court cases that chevron applies to cases in which an agency adopts the construction of a jurisdictional provision of a statute of ministers that implicates other laws in the court gave several examples in city new york the court unanimously concluded that the f c c did not exceed its statutory authority by preempting state laws and regulations related to cable television despite presumptions in favor of state sovereignty and in book more importantly and i think more on point the supreme court has also made clear that chevron applies when congress authorizes an agency to implement it statute in a lot of other federal law and holly farms the national labor agriculture in the fair labor standards act a statute administered not by the n l r b but by the department of labor rejecting the plain language argument that was advanced by the petitioners the court held that the n l r b s interpretation agriculture under the f l essay was reasonable and control under chevron the state obviously relies heavily on epic sips epic systems for contrary conclusion but that case doesn't modify city of arlington it doesn't mention the city or atlanta and also epic systems doesn't have any bearing on this case the the n l r b does not administer the federal arbitration which is a trans governmental statute for which agency interpretations statute about a different subject matter without a delegation of authority by congress to do so and for those reasons the court declined to apply chevron deference but in this case congress directed the united she see to determine whether substantive field of expertise in addition to the district court relied heavily on america's community bankers for a contrary conclusion but the court didn't fully appreciate  question in that case was whether that f b i see properly construed its authority in obligations under sections fourteen forty one and sections eighteen seventeen of title twelve section fourteen forty one was administered by the finance corporation and principly from its interpretation of a statute that it had mr even though it also interpreted a nother statute that was administered by a different agency and the same reasoning applies here the n i g c grounded its decision and i thus qualifying for review under shop will finally be the a circuits decision in santee suit came to the same conclusion the and i g c concluded that the game being played on the tribes lan was not a prohibited class three gaming device but a permissible class two gaming device in doing so the and i g c concluded that certain gaming they were excluded from the johnson act and although the united she c did not administer the jo she sees interpretation derives principly from that from margaret the statute that it administers and finally with respect to this letter want to whether it forecloses the united she sees determination here it's important to recognize that this letter once conclusion that congress intention once again explicit clear unambiguous relates to its holding that the word prohibited in the restoration act did not incorporate cabazon prohibit regulatory distinction but that conclusion does not mean that the restoration act prohibits class two gaming under iger section twenty seven ten big if anything it's led to one's conclusion means just the opposite that the restoration act both prohibits and regulates gaming and work class to gaming is only regulated i agree compose the conclusion that such gaming is permitted under i correct in fact this little one said that for but you also childish that you think you can prevail even interested in one are you nonetheless asking if that case should be reconsidered in bank we are not at this time or are we obviously raise the issue  you may it please the court the district court correctly concluded that binding precedent from this court resolves the issue of whether the tribe can take advantage of ignorance permissive gaming regime the district court also correctly concluded that in any event there is no cause to defer to the national indian gaming commission's decision essentially to abrogate a federal statute that congress did not charge that agency with administering on the first point this court recognized in his letter one that being subject to texas gaming law was the price demanded by some members of the texas congressional delegation to authorize federal restoration of the two restoration act tribes in order to secure that benefit those tribes willingly agreed to that condition the tribe now claims that is little one doesn't control this case because this is all grounded in a specific provision in a group that conflicts that represent sort of a pivot like you think in this case in the opening brief on page six they said point blank when they were asking for this court to take his letter want to back up they said that he has let a one court quote considered the same question and reach the opposite answer of the national indian gaming commission now the focus is on the supposed differences between those two cases but all of that is essentially irrelevant because it ignores that has led to one decided the necessary antecedent issue here and that is it's doesn't matter what a particular restoration act and examine the interplay between those two statutes and concluded quote that not only that the restoration act survives today but also that it had not governs the determination of whether gaming activity is proposed by the rest rish that tribes are allowed under texas law which functions as surrogate federal law is that is your argument that the restoration act is the more specific one and of the general rule of statutory construction defined more specific act prevails over the more general one that was part of this court's rationale in his little one and yes we believe that's correct but we also i mean that's still true isn't it yes it is still true i mean there is some language going the opposite away from the first circuit when we i can argue i can talk later about how that case is distinguishable but the aquanaut case comes to be the other conclusion there i guess but this is i mean deals with gaming on indian reservations there are lots of indian tribes the restoration that deals with gaming on these specific to tribes reservation lands it is not not necessarily uncommon to have these types of restoration acts but it's not incredibly common either like this there are the vast majority imagine of indian tribes would fall clearly under a greece purview but there are specific as as the and i g c even recognized here these these two tribes are to some extent uniquely situated because they made a deal you know order to get federal restoration when there was some opposition to it they made a deal to be bound by texas gaming law they had waited a couple years maybe they could have struck a different deal but this is the deal that they struck at the in order for i'm sorry to interrupt if for in order for brand x to sort of control in this case and allow us to avoid getting into the chevron issue correct me if i'm wrong it's not enough just to state the holding of these little one when i think you've done but brand x says that the prior decision must hold its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion and your position that what we did in a slow one follows from the unambiguous terms of the statute well i think that it yes i actually i believe that it does i think that the the court has led to one looked at the un and big u s terms of the restoration act and of a nigra now the court also engaged in looking at the legislative history and interpretive canons of construction as it was invited to by the parties in that case it was not a chevron deference case and this is why we talk about in our brief the the home concrete case where they were dealing with a similar situation where it be issue the maybe maybe today in today's environment the you you wouldn't have at the parties invitation addressed legislative history to big sur that the board i'm looking at is and i'm looking at his letter right here and it's a well look with all due respect to the is let a panel i mean the court says at the conclusion of a part of its analysis we find ourselves confronted with substantial legislative history to the contrary including the plain language of section one hundred seventy so it was was the panel including the pla language of the statute as part of the legislative history it was trying to imagine what this analysis wants it may not have been that the clearest opinion ever written by this court but it does engage with the language in both of the statutes i mean it points to the plain language of the restoration act makes it quite clear that all gaming activities that are prohibited by the laws of the state of texas are hereby prohibited on the reservation it subjects the tribes the same civil and criminal penalties that's when the court talks about the cabazon ban distinction how that can a is reference to other federal laws it looks to that language so i think the court there is maybe it's a bit of a mishmash between applying that the language of the statute and the legislative history and the kids of interpretation but it is at the end of the day it is the the whole thing that we're supposed to be getting at is whether the prior court opinion  there whether or not getting into this battle over whether it is the opinion of the court or just an opinion the plurality i mean you had four justices say what justice prior to there and then justice scalia would have gone even even further or and this is brand would even be an issue is justice prior trying to change the inquiry in brand x i mean as i read his plurality opinion response to look at whether the prior decisions said there were any gaps left by congress is sort of a proxy explicit clear unambiguous plain and specific specific this is not the first time this court has it has had to address brenda xom of the exelon women case that we talk about on page nineteen of our brief for two thousand and fourteen goes through a lot of these cases from other circuits that the tribe pointed to here to say that there's a brand x problem in this case and what you do is it's a it's a bit of an art and not a science to go back and look at an opinion that was not talking about chevron to determine whether the congressional intent was clear but you look at the at the language and so we discuss on pages eighteen to twenty one of our brief all these out of circuit cases and just to take a couple examples there's a dominion energy case of the first circuit where you know you had this earlier statute that was the court said was opaque and that it could find no sign of a plainly discernible congressional intent the rushed case out of the seventh circuit the earlier court opinion is back and forth language that was unclear at best and so it is to some element of degree of reading the tealeaves and i would are and i would maintain that there are probably some cases that are close to the line but is lead to one whether or not it was written as clearly as it could have been there does not seem to be any intention in the in the language of the pain itself to suggest that there is a gap that an agency could later fill just even putting aside the just to move on to that the second issue of this case and we would argue the easiest way for the panel to resolve this case is just  one is binding and that is our position but even putting that aside this case comes down to a private party asking for a deference to an agency determination that the statute it does not it minister has been abrogate by a here it's important to recall what was that issue in that case that involved a provision in the communications act that required state and local governments to act on wireless siting applications within a quote reasonable period of time after a request had been filed with the c the f c c went ahead and issued regulations as to what would constitute a reasonable period of time and justice scalia's opinion for the court noted that there was no question that the f c c that there was preemption of of  state and local regulations in this area it was only a question of the scope of the agency's authority and so he pointed out that talking about this in terms of what is jurisdictional and non jurisdictional misses the point the question is simply what congress authorized the agency to do so the city of arlington did not involve an issue like this like the one here were in agencies interpret in language in the statutes authorize to administer minister to override to effectively declare on think it quite clearly does i mean if you look at so in the letter to the alabama coast shot in private so that's on the record in the record at page fourteen seventy in page seventy four of their appendix is it that the n i g c chairman says comes out and says we must guidance from the department of the interior solicitor's office about how to interpret the interface between these two acts because the and i g c chairman recognizes that the analysis is not simply about it but the restoration that continues to apply to these two tribes so it has to do something with it when the restoration act applies and it has a gaming provision that would directly conflicts with the with the gaming provision in something has to  happen i think that there is language that suggests that the n i g c chairman is effectively relying on the determination that the restoration it was impliedly repealed but i think even in the absence of that language it just that would have to be the reality of it it would be a defacto impliedly repealed to read out a provision that explicitly says that demian activities are subject or governed by texas law no longer applies and we're going to do this whole class t thing and just focus on what's in it i also we have a difference of opinion i think between our two sides over the santee suit case out of the eighth circuit we think it's quite clear when you look at that case that there were two and the courts there made clear i mean if there's there's just the structure of the opinion itself that the language that's talking about deferring to the energy sees determinations is all about that first issue i don't know that particular order but it's directed at the interpretation of the simile and other things where one would expect the agency would have some degree of expertise the court on the other hand goes through the legal analysis did novo itself to talk about the interplay between and the restoration act it does not appear at all does not say and does not appear at all to be deferring to the agency there which makes sense because that is an area where we would expect an agency necessarily to have expertise more so than any court that is much more u to deciding which one of two statutes controls implying interpretive cans that have nothing to do with an expertise on gaming law and that the courts entirely with be the epic systems case just from this last her i mean they're like here the agency did not seek to interpret it statute in isolation the n l r b is construction of the national labor relations act which is a statute that ministers wasn't it interpreted that in a way that  invalidated portions of the arbitration at that doesn't it minister and they didn't just do this willy nilly i mean this was also grounded in that if you look at twenty nine u s c one fifty seven that's the provision in the n r a that was constru ing and this refers to the l r b's control over things that are considered concerted activities and so the n l r b to hirmand that that arbitration agreements barring class action claims affected were essentially concerted activities under its regulatory ambit so it was grounded in a statute that it ministers but the supreme court justice course its opinion said that that doesn't mean that deferen applies because the agency sought to interpret the statute the l or a that it ministers in a way that limits the work of a second statute that it doesn't minister and held that on no account might we agree that the that congress implicitly delegated authority to address the meaning of that second statute especially in a scenario like that we cite that case because a lot of these cases we keep going back and forth on are about the scope of construing a separate statute this is like the the holly farms case that they talk about in the american community bankers where you're making determinations that are to some degree linked to a separate statute and that it's just funny and only different to say i think i have the power to look at a definition in a separate statue or determine versus essentially saying this entire provision in a separate statute that we have no authority to administer is is gone has been impl repealed by the statute that gives us our authority with the psni of course with the other side says is that the i g directs the united g c to to figure out whether a certain kind of gaming has been prohibited by any other chairman to look to other federal law we would dispute that that displays congress unmistakable intent that any federal law that the m i g c chairman happens to consider as on point can be held implied lee repealed buddy and i g c chairman and all courts have to defer to that especially after it especially when that would mean what is what if you were to take out the implied repeal stuff and i know i know you'll have a difference of opinion on the basis for the agency action take out the implied repeal stuff when you have the united you see she's looking at the restoration act unnecessarily interpreting the terms of it to see if it's consistent with the question presented under the i g r in this case different now now do we differ different i mean i think that we're not as close to the line i guess because there was an implied repeal here but that is epic systems that is the santee suit case and so we would hold that still there there would not be deference to to to the agency's determination simply because something constitutes a federal law and it references generally federal law i mean that is we also we talk about th happens routinely all the time when we talk about the b i a a cases in our brief where in the board of immigration appeals frequently has to reference other laws that doesn't mean that the agency all of the all the sudden can be thought of as having particular expertise it brings to bear with the construction of laws that it does not deal with routinely because they're because it's charged to a different agency and it's not within that agency's area of expertise and i think i just want to address and also accorded no deference to the and i g c determination there there was a footnote where they said we're not addressing this we're just to sign this matter ourselves there was no savings clause or anything akin to a savings cla dealing with the acuna tribe that was the difference the first circuit made between it and in a main tribe here it's not true that there is nothing like a savings clause i mean the tribe relies on this this notion relies on this language talking about how future benefits and services would be applicable to the alabama shot it in the restoration that but as we are even the brief this is there's a separate provision that talks about the laws and rules of law later an act of law and consistent with the restoration act it says nothing about prohibiting indian gaming or preserving state or federal law against a later and acted federal law and because i wrote was not an act until fourteen months later it could not have been inconsistent law displaced by the restoration act congress always adopts a because savings clauses and clear and unambiguous terms as in the main settlement act which barred application of future federal laws in maine unless the federal law expressly it was made applicable in maine the fact that the savings clause in the main settlement act had already been on the books for seven years before the restoration act was and acted confirms that congress did not intend the restoration ac to contain such a savings because congress knows how to draft those clauses it didn't do so here and the argument that benefits doesn't mean the law of course all those benefits and services come from federal laws and the only way tribes get additional federal benefits and services is through additional federal laws and that's the whole point of our fourteen months after the restoration act congress adopted this law in order to benefit tribal government tribal self determination tribal economic development that was congress intent in the in an act in this law the the the issues here is is the restoration acts of fish at least specific to prohibit class to gaming and if you look at the language of the restoration act all it says is all gaming prohibited by the state of texas is prohibited on the tribes lands bingo is not prohibited by the state of texas it was not it's not prohibited now and it was not prohibited at the time that our growth was adopted so what the state is really arguing is because they regulate bingo that somehow that results in a prohibition and somehow makes this law sufficiently specific to exclude very odd indeed to have a d n i g c come to the conclusion that even though texas doesn't prohibit bingo somehow the restoration act is sufficiently specific as to preclude the application or to preclude the tribes ability to engage in class c s jurisdiction for purposes of class two gaming which again congress expressly authorized it to do obviously there for there are all kinds of ranges of chevron deference where at the edges if you're talking about implie delegation you know or if i think justice or switch wrote an opinion a few months ago saying to look it's clear enough that that was congress intent we're not going to give chevron deference but none of those issues are even remotely an issue here this is garden variety run of the mill chevron deference because congress expressly delegated this decision making authority to the and i g c and the n i g c clearly has the subject matter expertise to address these issues even as it relates to the restoration act because it's only looking at the gaming provisions and it is true that they that he and i g c asked the department of  look at issues but that's only because the department of interior has to make certain determinations under the law that it administers and those have to do with whether the tribe possesses sufficient jurisdiction to be entitled to gauge  to the extent the solicitor general went further and found implied repeal that's not a doctor that all by the end i g c chairman the letter only notes that the department of interior concurred with the n i gc's decision and also separately concluded that there was implied repeal but the two statutes here do can co exist in harmony to the extent that the tribe is not engaged in class to gaming pursuant to the class to before hearing the final two