United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2020 Decided April 16, 2021

No. 19-5285

STAND UP FOR CALIFORNIA!, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00058)

Jennifer A. MacLean argued the cause for appellants. 

With her on the briefs was Benjamin S. Sharp.

Brian C. Toth, Attorney, U.S. Department of Justice, 

argued the cause for federal appellees. With him on the brief 

were Jeffrey Bossert Clark, Assistant Attorney General, Eric 

Grant, Deputy Assistant Attorney General, and Mary Gabrielle 

Sprague, Attorney.

Jessica L. Ellsworth argued the cause for appellee Wilton 

Rancheria, California. With her on the brief was Benjamin A. 

Field. Neal K. Katyal entered an appearance.
2

Before: GARLAND*, PILLARD and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: This appeal comes after a sevenyear effort by the Department of the Interior (“Department”) to 

acquire land in trust on behalf of the Wilton Rancheria 

(“Wilton” or “Tribe”) to build a casino. After the Department 

finalized the acquisition of a parcel of land in Elk Grove, 

California, Stand Up for California! (“Stand Up”), Patty 

Johnson, Joe Teixeira, and Lynn Wheat (collectively 

“Appellants”) sued the Department. They brought a litany of 

claims, including claims that the Department (1) impermissibly 

delegated the authority to make a final agency action to acquire 

the land to an official who could not wield this authority, (2) 

was barred from acquiring land in trust on behalf of Wilton’s 

members, and (3) failed to adhere to its National 

Environmental Protection Act obligations when it selected the 

Elk Grove location. Appellants and the Department crossmoved for summary judgment, and the District Court granted 

the Department’s motions on all counts. For the reasons set 

forth below, we affirm the District Court.

I.

The Wilton Rancheria is an Indian tribe based in the 

Sacramento area.1

 Wilton’s members are descendants of 

* Judge Garland was a member of the panel at the time this case was 

submitted but did not participate in the final disposition of the case.

1 A rancheria is a small Indian settlement in California. See Stand 

Up for California! v. U.S. Dep’t of Interior, 879 F.3d 1177, 1179 

(D.C. Cir. 2018); William Wood, The Trajectory of Indian Country 

in California: Rancherías, Villages, Pueblos, Missions, Ranchos, 
3

Miwok and Niensen speakers. As with its general policy 

regarding tribal sovereignty, the federal government’s 

approach to Wilton has gone through “drastic fits and starts,” 

vacillating “between coercing assimilation and encouraging 

tribal self-government.” Philip P. Frickey, Congressional 

Intent, Practical Reasoning, and the Dynamic Nature of 

Federal Indian Law, 78 CALIF. L. REV. 1137, 1138 (1990). 

Wilton was first federally recognized in 1927, when Congress 

initiated a program that provided land to Indians who were not 

on reservations. After Congress passed the Indian 

Reorganization Act in 1934, Wilton adopted a constitution. 

In 1958, however, Congress disestablished Wilton and 

forty other reservations through the California Rancheria Act 

(“Rancheria Act”). Pub. L. No. 85–671, 72 Stat. 619 (1958). 

The Rancheria Act directed the Secretary of the Interior 

(“Secretary”) to dissolve the trusts in which the Secretary held 

land for forty-one rancherias and tribes, including Wilton, and 

to distribute the assets. The Secretary was directed to consult 

with the affected tribes and prepare a plan to distribute the 

assets or to sell the assets and distribute the profits to the 

affected tribes’ members. Pursuant to this mandate, the 

Secretary terminated the government-to-government 

relationship with Wilton and began consultations with the 

Tribe’s members to transfer federal land trust ownership to 

individual fee ownership. In 1959, the Department approved a 

distribution plan that would terminate the federal trusteeship of 

the Tribe, distribute the assets to the Tribe’s members, and 

revoke the Tribe’s constitution and bylaws. Once the Tribe’s 

assets had been distributed, the distribution agreement 

stipulated that the Tribe’s members were no longer entitled to 

the federal government’s services because of their status as 

Indians. In 1964, the Department announced in the Federal 

Reservations, Colonies, and Rancherias, 44 TULSA L. REV. 317, 319 

(2008).
4

Register that the Wilton Tribe’s members were no longer 

entitled to services reserved for Indians. Termination of 

Federal Supervision, 29 Fed. Reg. 13,146 (Sept. 15, 1964). 

In 1979, members of several California rancherias, 

including Wilton members, brought a class action against the 

Department for unlawfully terminating the federal 

government’s trust relationship with their tribes. Four years 

later, the government settled and “agree[d] to ‘restore[] and 

confirm[]’ Indian status for some who had lost it” pursuant to 

the Rancheria Act, including seventeen tribes that had lost their 

tribal status under the Act. Stand Up for California! v. U.S. 

Dep’t of Interior, 879 F.3d 1177, 1184 (D.C. Cir. 2017)

(quoting Stipulation for Entry of Judgment, Hardwick, No. C79-1710-SW, ¶¶ 2–4 (Aug. 3, 1983)). But Wilton was 

excluded from the settlement agreement because the district 

court mistakenly concluded that “[n]o class member from 

[Wilton] currently owns property within the original rancheria 

boundaries.” Wilton Miwok Rancheria v. Salazar, 2010 WL 

693420, at *2 (N.D. Cal. Feb. 23, 2010) (quoting Certificate of 

Counsel re Hearing on Approval of Settlement of Class 

Actions, Hardwick, No. C-79-1710-SW (Nov. 16, 1983)).

Almost forty years later, members of the Tribe sued the 

Department, seeking federal recognition of the Wilton 

Rancheria and the acquisition of certain land into trust by the 

government on the Tribe’s behalf. Id. at *3. Two years later, 

the Tribe and the government entered into a settlement 

agreement. The Department acknowledged that “the United 

States failed to comply with the Rancheria Act in terminating 

the Wilton Rancheria and distributing its assets.” Id. The 

Department thus recognized that the Tribe was not lawfully 

terminated. The Department also agreed to restore federal 

recognition of the Tribe and to “accept in trust certain lands 

formerly belonging to” Wilton. Id. at *3. In June 2009, the 

district court in California entered the settlement agreement as
5

a stipulated judgment. After the case settled, the Department 

published notice of the restoration of Wilton’s status as a 

federally recognized tribe. Since then, the Wilton Rancheria 

has been listed on the Department’s annual list of federally 

recognized tribes. 

In 2013, Wilton petitioned the Department to acquire land 

in trust on the Tribe’s behalf so that it could build a casino. The 

Tribe proposed a 282-acre plot near Galt, California. Pursuant 

to the National Environmental Policy Act (“NEPA”), 42 U.S.C. 

§§ 4321–4347, the Department began the process to assess the 

environmental effect a casino would have. After soliciting 

public comment, the Department published a scoping report for 

its environmental impact statement (“EIS”). The scoping 

report identified seven alternatives for the land acquisition, 

including a 30-acre parcel in Elk Grove and the Galt site, which 

the report described as Wilton’s “proposed action,” see 40 

C.F.R. § 1502.14; 43 C.F.R. § 46.30, but it did not identify a 

preferred alternative. See 43 C.F.R. § 46.420(d) (defining the

“preferred alternative” as the alternative that the agency 

“believes would best accomplish the purpose and need of the 

proposed action while fulfilling its statutory mission and 

responsibilities, giving consideration to economic, 

environmental, technical, and other factors”). Two years later, 

the Department published the draft EIS, where it considered the 

alternatives in detail. It then held a public hearing on the draft 

EIS. At the hearing, multiple parties—including one of the 

plaintiffs in this litigation—spoke in favor of the Elk Grove 

location. Following the hearing, Wilton changed its preference 

and submitted a request that the Department acquire the Elk 

Grove location rather than the Galt location.

In November 2016, the Department requested comment 

from interested parties about a potential casino in the Elk Grove 

location. The list of notified parties included the State of 

California, the City of Elk Grove, and Stand Up. Stand Up 
6

responded that transferring title to the Elk Grove location 

would moot multiple pending state-court challenges seeking to 

prevent the acquisition and urged the Department to delay title 

transfer. The Department denied Stand Up’s request. The 

Department then published its final EIS, which identified the 

Elk Grove location as the preferred alternative. 

On January 19, 2017, the Department issued a Record of 

Decision (“ROD”) that constituted the final agency action to 

acquire the Elk Grove location in trust on Wilton’s behalf. 

Lawrence Roberts—the Principal Deputy Assistant Secretary–

Indian Affairs—signed the ROD pursuant to delegated 

authority. Roberts had served as Acting Assistant Secretary–

Indian Affairs (“AS–IA”), but after his acting status lapsed 

pursuant to the Federal Vacancies Reform Act (“FVRA”), 

Roberts continued to exercise the non-exclusive functions and 

duties of the AS–IA. The same day Roberts issued the ROD, 

then-Deputy Secretary Michael Connor had issued a 

memorandum (“Connor Memorandum”) that sought to clarify 

that Roberts was exercising non-exclusive functions and duties 

of the AS–IA. On February 10, the Department acquired title 

to the Elk Grove location. Michael Black, who had assumed 

the role of Acting AS–IA in the new presidential 

administration, signed off on this acquisition after denying 

Stand Up’s administrative appeal for a stay pending judicial 

review.

Appellants brought this lawsuit prior to the issuance of the

Department’s ROD and sought a temporary restraining order, 

which the District Court denied. Appellants’ lawsuit alleged, 

inter alia, that (1) the FVRA and Department regulations

precluded the Principal Deputy from exercising the authority 

to sign off on the ROD acquiring the Elk Grove land in trust; 

(2) Principal Deputy Roberts was acting without authority 

when he acquired the title in trust for the Tribe; (3) the 

Department could not acquire land in trust on behalf of 
7

Wilton’s members pursuant to the Rancheria Act; and (4) the 

Department violated NEPA and the APA by failing to prepare 

a supplemental or new EIS after it selected the Elk Grove 

location as its preferred alternative. Wilton intervened on 

behalf of the Department. After the parties cross-moved for 

summary judgment, the District Court granted the 

Department’s summary judgment motions. This appeal 

followed.

We review the District Court’s grant of summary 

judgment de novo. W. Surety Co. v. U.S. Eng’g Constr., LLC, 

955 F.3d 100, 104 (D.C. Cir. 2020). We “evaluat[e] the 

administrative record directly and invalidat[e] the 

Department’s actions only if, based on that record, they are 

arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with the law.” Stand Up!, 879 F.3d at 1181

(internal quotation omitted).

II.

We begin with Appellants’ challenge to the Department’s 

redelegation of final decision-making authority to the Principal 

Deputy. First, Appellants claim that the regulation in question 

prohibits redelegation beyond the AS–IA. Second, Appellants

argue that even if the regulation permitted redelegation, the 

Department failed to properly redelegate this power to 

Principal Deputy Roberts.

We reject both of Appellants’ challenges. First, the text, 

structure, and purpose of the regulation confirm that the 

Department has the power to redelegate final decision-making

authority. Second, the Department properly redelegated the 

final decision-making authority to Principal Deputy Roberts. 

We therefore affirm the District Court’s grant of summary 

judgment to the government on these claims.
8

A.

The Bureau of Indian Affairs (“BIA”) has promulgated 

regulations governing who can make land acquisitions on 

behalf of Indian tribes. The regulations define “Secretary” as 

“the Secretary of the Interior or authorized representative.” 25 

C.F.R. § 151.2. The Secretary must review each request for the 

acquisition of land. 25 C.F.R. § 151.12(a). Section 151.12(c) 

states that “[a] decision made by the Secretary, or the [AS–IA] 

pursuant to delegated authority, is a final agency action.” 25 

C.F.R. § 151.12(c). In contrast, Section 151.12(d) provides 

that “[a] decision made by a [BIA] official pursuant to 

delegated authority is not a final agency action of the 

Department . . . until administrative remedies are exhausted.” 

Id. § 151.12(d). 

To determine whether redelegation of final decisionmaking authority is permissible, we must first assess whether 

the power is an exclusive function or duty of the Secretary or 

the AS–IA. The FVRA forecloses the delegation of exclusive 

duties and authorities to a successor official after expiration of 

the statutorily authorized 210-day period of acting-capacity 

service. The FVRA also establishes that a function or duty is 

exclusive when it is either “established by statute, and . . . 

required by statute to be performed by the applicable officer 

(and only that officer)” or when it “is established by regulation 

and . . . is required by such regulation to be performed by the 

applicable officer (and only that officer).” 5 U.S.C. § 

3348(a)(2)(A)–(B).2

 If Congress wants to make clear that a 

2 Although Appellants have not raised their FVRA claims on appeal, 

the statute still provides guideposts to which we should adhere in 

analyzing the challenge to delegated authority. Cf. United Sav. Ass’n 

of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 

371 (1988) (“[C]onstruction . . . is a holistic endeavor. A provision 

that may seem ambiguous in isolation is often clarified by the 
9

function or duty is exclusive, it may do so through clear 

statutory mandates. See, e.g., 25 U.S.C. § 3407(a) (“The 

Secretary shall have exclusive authority to approve or 

disapprove a plan submitted by an Indian tribe . . . .” (emphasis 

added)). Alternatively, as the Supreme Court recognized in 

United States v. Giordano, a statute may foreclose redelegation 

when its text, “fairly read” in light of the statutory purpose, 

evinces a congressional desire to render a function or duty 

exclusive and non-redelegable. 416 U.S. 505, 514 (1974). 

Should Congress remain silent on the issue, however, the 

FVRA provides the Executive Branch with leeway to set out 

which functions or duties are exclusive and which are not. See 

5 U.S.C. § 3348(a)(2)(A)–(B); see also FEDERAL VACANCIES 

REFORM ACT OF 1998, S. Rep. No. 105–250, at 31 (“We must 

be clear that the non-delegable duties we intend to have 

performed only by the agency head in the event of a vacancy

. . . are only those expressly vested by law or regulation 

exclusively in the vacant position. In this regard, we 

acknowledge and appreciate the Majority’s statement that ‘all 

the normal functions of government thus could still be 

performed.’”). Appellants do not argue that any statute vests

exclusive authority with the Secretary or the AS–IA, and we 

are unaware of any such statute. We must therefore determine 

whether the Department itself has cabined this authority.

Relying on the text of Section 151.12, Appellants argue 

that the Department has restricted final decision-making

authority to the Secretary or to the AS–IA. Appellants contend 

that because Section 151.12(c) provides that final decisions can 

be made by the AS–IA “pursuant to delegated authority,” while 

Section 151.12(d) sets out the procedures for non-final 

decisions made by BIA officials, the Department has made 

remainder of the statutory scheme . . . because only one of the 

permissible meanings produces a substantive effect that is 

compatible with the rest of the law.”).
10

final decision-making authority an exclusive function. We 

disagree. While Section 151.12 certainly contemplates that the 

actions of the Secretary and the AS–IA will constitute final 

agency action, when fairly read, it does not foreclose 

redelegation of these duties.

To begin, we hold that, contrary to Appellants’ assertions, 

the presumption in favor of redelegability applies to 

regulations. We have previously recognized that “[w]hen a 

statute delegates authority to a federal officer or agency, 

subdelegation to a subordinate federal officer . . . is 

presumptively permissible absent affirmative evidence of a 

contrary congressional intent.” U.S. Telecom Ass’n v. FCC, 

359 F.3d 554, 565 (D.C. Cir. 2004); see also Kobach v. U.S. 

Election Assistance Comm’n, 772 F.3d 1183, 1190 (10th Cir. 

2014) (“[C]ircuits that have spoken on this issue are unanimous 

in permitting subdelegations to subordinates, even where the 

enabling statute is silent, so long as the enabling statute and its 

legislative history do not indicate a prohibition on 

subdelegation.”). And while we have never held that this 

presumption applies to regulations, we conclude that it does so 

today. Indeed, the presumption in favor of redelegability may 

be more appropriate for regulations than it is for statutes 

because an agency has many tools to quickly reverse an 

unintended redelegation. Should any lower-ranking official 

exceed his or her powers and attempt to exercise an exclusive 

function or duty pursuant to a redelegation, the Secretary or the 

Deputy Secretary could simply invalidate any action taken 

pursuant to the claimed authority. In contrast, as a practical 

matter it is harder for Congress to claw back any function or 

duty that a lower-ranking official exercises contrary to

Congress’s intent to reserve it for the Secretary. And while an 

agency could amend its regulations to change which functions 

or duties are exclusive, Congress ensured that an agency cannot 

suddenly render an exclusive function or duty non-exclusive by 

requiring the regulation to be in effect during the 180 days 
11

preceding any vacancy. 5 U.S.C. § 3348(a)(2)(B)(ii). An 

agency thus cannot amend its regulations to render an exclusive 

function non-exclusive as an end-run around the restrictions 

Congress set for acting officers in the FVRA. Given these 

considerations, we hold that the presumption in favor of 

redelegability applies to regulations.

With this presumption in mind, we turn to the text. As 

with statutes, regulations must be construed holistically. See 

Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 356 n.10 (D.C. Cir. 

1993); see also Carlson v. Postal Regulatory Comm’n, 938 

F.3d 337, 349 (D.C. Cir. 2019) (“[I]n expounding a statute, we 

must not be guided by a single sentence . . . but look to the 

provisions of the whole law.” (quoting Del. Dep’t of Nat. Res. 

& Envtl. Control v. EPA, 895 F.3d 90, 97 (D.C. Cir. 2018))). 

Here, the regulatory text provides two methods by which the 

Department can acquire land in trust. Section 151.12(d) 

contemplates that the decision to take land into trust may be 

delegated to a BIA official, but the BIA official’s decision 

would be subject to administrative review. 25 C.F.R. § 

151.12(d). Alternatively, the Department may acquire the land 

in trust through “[a] decision made by the Secretary, or the 

[AS–IA] pursuant to delegated authority,” which “is a final 

agency action” and not subject to the administrative review 

process. Id. § 151.12(c). But the regulation also defines 

“Secretary” to include any “authorized representative.” Id. § 

151.2(a). Because of this inclusive definition, we conclude that 

the regulation’s text, when fairly read, contemplates 

redelegation of the Section 151.12(c) authority by the 

Secretary.

The Department’s other regulations confirm our reading of 

Section 151.12. As other regulations make clear, the 

Department knows how to use language that renders a function 

or duty exclusive to a particular official. See, e.g., 25 C.F.R. § 

33.3 (“The administrative and programmatic authorities of the 
12

Assistant Secretary–Indian Affairs pertaining to Indian 

education functions shall not be delegated to other than the 

Director, Office of Indian Education Programs.”); id. § 

262.5(a) (“Area Directors may delegate this authority to 

Agency Superintendents, but only . . . to those who have 

adequate professional support available.”); 43 C.F.R. § 

20.202(b)(1) (“Each Ethics Counselor shall . . . [o]rder 

disciplinary or remedial action . . . . This authority may not be 

redelegated.”). But in promulgating Section 151.12, the 

Department refrained from using any similar language. 

Appellants argue that the Department shut the door on 

redelegation in providing that the AS–IA will act “pursuant to 

delegated authority.” 25 C.F.R. § 151.12(c). But this language 

pales in comparison to the language the Department typically 

uses to bar redelegation. The Department’s decision not to use 

such prohibitory language thus supports our conclusion that a 

fair reading of the regulation permits redelegation beyond the 

AS–IA.

Appellants invoke the expressio unius canon to argue that 

the regulation’s explicit mention of the AS–IA forecloses 

redelegation beyond the AS–IA. But as we have made clear, 

the expressio unius canon “is often misused” because drafters

include duplicative language to ensure “that the mentioned 

item is covered—without meaning to exclude the unmentioned 

ones.” Shook v. D.C. Fin. Resp. & Mgmt. Assistance Auth., 132 

F.3d 775, 782 (D.C. Cir. 1998). Moreover, as the Second 

Circuit has recognized, the expressio unius canon carries even 

less weight in the redelegation context, where the statute or 

regulation “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.” United States v. Mango, 

199 F.3d 85, 90 (2d Cir. 1999). Section 151.12(c) is 

emblematic of the shortcomings of the expressio unius canon 

in the redelegation context. Although the regulation explicitly 

mentions the AS–IA, it incorporates the definition of 
13

“Secretary” from Section 151.2(a) which includes any 

“authorized representative.” Nothing else in the regulation’s 

text suggests that the Department intended to limit the 

redelegation to the AS–IA, and invoking the expressio unius 

canon would require us to ignore the regulation’s definition of 

“Secretary.” Instead, we believe it a fairer reading of the 

regulation that the Department was merely making clear that 

the AS–IA had been delegated the authority of final decisionmaking, not that the AS–IA alone could exercise this authority. 

We therefore decline to apply the expressio unius canon to 

Section 151.12.

Section 151.12’s purpose also supports our reading of the 

regulation. As with statutes, we may look to the purpose and 

drafting history of the regulation to confirm whether our 

interpretation of the text comports with the Department’s intent 

in promulgating Section 151.12. See U.S. Telecom Ass’n, 359 

F.3d at 565; Giordano, 416 U.S. at 514. Here, the 

Department’s goal in amending Section 151.12 affirms our 

understanding that the Department did not intend to prohibit 

redelegation of this function. Section 151.12 was amended in 

2013 to “[p]rovide clarification and transparency to the process 

for issuing decisions by the Department, whether the decision 

is made by the Secretary, [AS–IA], or a [BIA] official.” Land 

Acquisitions: Appeals of Land Acquisition Decisions, 78 Fed. 

Reg. 67,928, 67,929 (Nov. 13, 2013). The Department was not 

focused on who could wield the authority to make final 

decisions. Rather, the Department sought to clarify whether an 

acquisition of land was final and what means of review were 

available to aggrieved parties: The decisions of the Secretary 

and AS–IA are final and appealable, it explained, and the 

decisions of BIA officials are not. In adopting that rule of 

finality, the Department said nothing of the authority of other 

Department officials, such as the Deputy AS–IA, to act. And 

in any event, finality is a benefit as well as a limitation. Instead 

of being required to proceed through the administrative appeals 
14

process, a decision made under Section 151.12(c) permits 

aggrieved parties to immediately seek judicial review before an 

Article III court.

3

 The Department’s purpose in promulgating 

Section 151.12 thus confirms that the Department did not seek 

to foreclose redelegation of final decisions to acquire land into 

trust.

Appellants’ reliance on Giordano is misplaced. There, the 

Supreme Court interpreted a statute where Congress provided 

that “[t]he Attorney General, or any Assistant Attorney General 

specially designated by the Attorney General” could authorize 

a wiretap, Giordano, 416 U.S. at 513 (quoting 18 U.S.C. § 

2516(1)), but the challenged decision was made by the 

Attorney General’s Executive Assistant. Id. Although the 

Court concluded that the statute’s text, when “fairly read, was 

intended to limit the power to authorize wiretap applications,” 

id. at 514, it reached this conclusion after contrasting the 

narrow delegation of Section 2516(1) with 28 U.S.C. § 510, 

which granted the Attorney General broad authority to delegate 

his power. Thus, because the statute in question used narrower 

language than the broader delegation, the Court determined 

that the Attorney General was restricted in his ability to 

delegate his wiretapping authority. In the present case, 

however, other regulations show that when the Department 

intends to render a function or duty exclusive, it says so clearly. 

And unlike the statute at issue in Giordano, see id. at 514–21, 

the history of Section 151.12 does not evince an intent by the 

drafters to restrict who could wield final decision-making

3 It is also noteworthy that the Department has maintained its position 

that this function is redelegable over three presidential 

administrations. Appellants stress the breakneck speed that the 

Obama administration undertook to finalize the acquisition, but over

four years later, two administrations never wavered from the position 

that this authority is redelegable.
15

authority, 78 Fed. Reg. at 67,929. We therefore hold that 

Section 151.12 permits redelegation beyond the AS–IA.

B.

We next turn to Appellants’ argument that the Department 

failed to properly redelegate the final decision-making

authority to Principal Deputy Roberts. Appellants contend that

because the Department did not adhere to the redelegation 

procedures set forth in the Departmental Manual, the 

redelegation—either through automatic redelegation or 

through the Connor Memorandum—was impermissible. We 

reject Appellants’ challenge.

Even if violation of the Departmental Manual supported a 

third-party claim—which we doubt, see Schweiker v. Hansen,

450 U.S. 785, 789–90 (1981); Chiron Corp. & PerSeptive 

Biosystems, Inc. v. NTSB, 198 F.3d 935, 944 (D.C. Cir. 

1999)—Appellants’ challenge still fails on its merits. Principal 

Deputy Roberts began serving as the Acting AS–IA in January 

2016. After his term as AS–IA lapsed pursuant to the FVRA, 

Roberts reverted to his position as Principal Deputy. But under 

the Departmental Manual, the Principal Deputy “may exercise 

the [non-exclusive] authority delegated” to the AS–IA “[i]n the 

[AS–IA’s] absence.” 209 DM 8.4A. Appellants attempt to 

distinguish an “absence” from a “vacancy,” but they forfeited 

this argument by failing to raise it in the District Court. See 

Weinstein v. Islamic Republic of Iran, 831 F.3d 470, 483 (D.C. 

Cir. 2016) (“To preserve an argument on appeal a party must 

raise it both in district court and before us.”). Regardless, for 

purposes of delegation under this regulation, a vacancy may be

treated as a type of absence. Appellants’ reliance on other 

provisions of the Departmental Manual where the Department 

uses the term “vacancy” is misplaced, as those provisions deal 

specifically with succession, not redelegation. See 302 DM 

1.1. As discussed above, final decision-making authority 

pursuant to Section 151.12 is a non-exclusive function, so this 
16

is not an issue of a succession, but rather an issue of 

redelegation. Thus, “absence” can certainly include a 

“vacancy” in office, particularly when the functions at issue are 

non-exclusive. Therefore, the Department did not violate any 

of the provisions by automatically redelegating the AS–IA’s 

non-exclusive functions and duties to the Principal Deputy.

In any event, any failure to automatically redelegate this 

non-exclusive function was corrected when the Department 

issued the Connor Memorandum. The Departmental Manual 

acknowledges that it can be superseded by any “appropriate 

authority,” including but expressly not limited to “a Secretary’s 

order.” J.A. 248 (listing permissible appropriate authority,

“e.g., a change in statute, regulation, or Executive order; a 

Secretary’s Order or a court decision; etc.” (emphasis added)). 

As the Connor Memorandum explained, the Department 

intended for Principal Deputy Roberts to exercise the 

nonexclusive functions and duties of the AS–IA, but the 

succession order incorrectly identified Roberts’s position. So, 

although “[t]he Department typically uses succession orders to 

delegate authority,” the Department issued the Connor 

Memorandum to “confirm [Roberts’s] authority to exercise the 

functions and duties of the AS–IA that are not required by law 

or regulation to be performed only by the AS–IA.” J.A. 276. 

And given that the Departmental Manual permits deviation 

from the procedures by any appropriate authority, the Connor 

Memorandum, issued by the Deputy Secretary of the Interior, 

permissibly redelegated final decision-making authority to 

Roberts.4

 Thus, to the extent that the delegation was not 

4 Appellants also secondarily argue that Deputy Secretary Connor 

was not properly delegated the authority to redelegate final decisionmaking authority to Principal Deputy Roberts. But Appellants

forfeited this argument by failing to raise it before the District Court. 

Weinstein, 831 F.3d at 483.
17

automatically made, it was correctly done through the Connor 

Memorandum.

III.

Appellants also appeal the District Court’s grant of 

summary judgment to the Department on Appellants’

Rancheria Act claim. Appellants claim that they do not 

challenge the court-approved settlement agreement that 

reestablished federal recognition of Wilton. Instead, 

Appellants argue that because the Department distributed 

assets to Wilton members pursuant to the Rancheria Act, 

Wilton members are no longer entitled to the federal 

government’s services on account of their status as Indians. 

We reject this argument as specious.

As Appellants are well aware, we have previously 

recognized that a court-approved settlement can invalidate the 

effect of the Rancheria Act. In another lawsuit brought by 

Stand Up, we concluded that a court-approved settlement 

agreement is sufficient to restore recognition of a tribe and to 

restore Indian status for members of that tribe notwithstanding 

the Rancheria Act. Stand Up!, 879 F.3d at 1184. The 

settlement agreement, which a federal court approved, stated 

that Wilton “was not lawfully terminated, and the Rancheria’s 

assets were not distributed, in accordance with the” Rancheria 

Act. J.A. 901. The court made clear that the Rancheria Act did 

not apply to Wilton because the Tribe’s assets were not 

distributed pursuant to the law. Pursuant to this agreement, the 

Department published notice in the Federal Register stating 

that Wilton and its members were “relieved from the 

application of section 10(b) of” the Rancheria Act. Restoration 

of Wilton Rancheria, 74 Fed. Reg. 33,468, 33,468 (July 13, 

2009). It is therefore irrelevant thatsome Wilton members may 

have received assets because those assets were not distributed 

pursuant to the statute. The Rancheria Act has no force on the 

Department with regards to the Wilton Rancheria.
18

As a fallback, Appellants contend that the District Court 

erred by relying on the Federally Recognized Indian Tribe List 

Act of 1994 (“List Act”). Pub. L. No. 103–454, 108 Stat. 4791, 

4792 (Nov. 2, 1994). Appellants argue that the List Act did not 

authorize the restoration of congressionally-terminated tribes

through court-approved settlements in its substantive 

provisions, so the Rancheria Act still controls. Appellants are 

mistaken. While it is true that the District Court relied on the 

“Findings” section of the List Act, the “Findings” section 

acknowledges that “Indian tribes presently may be recognized 

. . . by a decision of a United States court.” Id. § 103(3). This 

finding comports with decades of court-approved settlements 

reestablishing federal recognition of Indian tribes. See, e.g., 

Hardwick v. United States, No. C-79-1710-SW (N.D. Cal. 

1979); Table Bluff Band of Indians v. Andrus, 532 F. Supp. 255, 

258, 259–61, 265 (N.D. Cal. 1981); Smith v. United States, 515 

F. Supp. 56, 61–62 (N.D. Cal. 1978); Duncan v. Andrus, 517 

F. Supp. 1, 5–6 (N.D. Cal. 1977); see also Stand Up!, 879 F.3d 

at 1185 (discussing validity of the Hardwick settlement). It is 

therefore irrelevant that the List Act failed to expressly 

authorize the recognition of tribes through court decisions 

because it confirmed that courts could do so. And that is 

precisely what the court did when it approved the settlement 

agreement. Therefore, the court-approved settlement 

agreement recognizing Wilton and invalidating the Rancheria 

Act’s application to Wilton comports with the List Act. 

Because a court-approved settlement agreement reversed 

the termination of the Wilton Rancheria pursuant to the 

Rancheria Act, we affirm the District Court’s grant of summary 

judgment to the Department. 

IV.

Finally, Appellants challenge the District Court’s grant of 

summary judgment to the Department on their NEPA claims. 

Appellants argue that, at a minimum, the Department should 
19

have prepared either a supplemental EIS or a new EIS after it 

selected the Elk Grove location as the site for the casino. This 

contention also has no merit.

Congress enacted NEPA in 1970. 42 U.S.C. §§ 4321–

4347. When an agency takes a “major Federal action[],” NEPA 

requires the responsible official to prepare a “detailed 

statement . . . on (i) the environmental impact of the proposed 

action, (ii) any adverse environmental effects which cannot be 

avoided . . . , (iii) alternatives to the proposed action, (iv) the 

relationship between local short-term uses . . . and . . . longterm productivity, and (v) any irreversible and irretrievable 

commitments of resources.” 42 U.S.C. § 4332(C). This 

“detailed statement” has become known as an EIS.

An EIS goes through two stages: the draft EIS and the 

final EIS. 40 C.F.R. § 1502.9. Id. The principal agency—

here, the Department of the Interior— prepares the draft EIS in 

conjunction with cooperating agencies and obtain comments 

regarding the proposed federal action. 40 C.F.R. § 1502.9(a). 

In the draft EIS, the principal agency must “[i]dentify the 

agency’s preferred alternative . . . , if one or more exists.” 40 

C.F.R. § 1502.14(e). The final EIS must address all comments 

and discuss responsive opposing views it did not discuss 

adequately in the draft statement. 40 C.F.R. § 1502.9(b); id. § 

1503.4(a). In responding to comments in the final EIS, the 

agency is permitted to (1) “[m]odify alternatives including the 

proposed action,” (2) “[d]evelop and evaluate alternatives not 

previously given serious consideration,” (3) modify or 

supplement its analyses, (4) make factual corrections, or (5) 

explain why the comments do not merit further agency 

response. 40 C.F.R. § 1503.4(a)(1)–(4). The agency must also 

identify preferred alternatives in the final EIS unless prohibited 

by law. 40 C.F.R. § 1502.14(e).

Where necessary, an agency must also prepare a 

supplemental EIS. An agency must prepare a supplemental 
20

EIS if (1) “[t]he agency makes substantial changes in the 

proposed action that are relevant to environmental concerns,” 

or (2) “[t]here are significant new circumstances or information 

relevant to environmental concerns and bearing on the 

proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i)–

(ii). An agency may also prepare a supplemental EIS if it 

determines that doing so would further NEPA’s purpose. 40 

C.F.R. § 1502.9(c)(2).

When we review an EIS prepared under NEPA, our “role 

is ‘simply to ensure that the agency has adequately considered 

and disclosed the environmental impact of its actions and that 

its decision is not arbitrary or capricious.’” Nat’l Comm. for 

the New River v. FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004) 

(quoting Baltimore Gas & Elec. v. NRDC, 462 U.S. 87, 97–98 

(1983)). We must “ensure that the agency took a ‘hard look’ 

at the environmental consequences of its decision to go forward

with the project.” Id. (quoting City of Olmsted Falls v. FAA, 

292 F.3d 261, 269 (D.C. Cir. 2002)). In determining whether 

an agency is required to supplement its EIS, we also apply the 

arbitrary-and-capricious standard. Marsh v. Oregon Nat. Res. 

Council, 490 U.S. 360, 376 (1989).

In Marsh v. Oregon Natural Resources Council, the 

Supreme Court evaluated whether NEPA required an agency 

to prepare a supplemental EIS after finalizing the EIS. 490 

U.S. 360 (1989). The Court concluded that, “the decision 

whether to prepare a supplemental EIS is similar to the decision 

whether to prepare an EIS in the first instance.” Id. at 374. If 

the federal action is pending, then the new information that 

comes to light must be “sufficient to show that the remaining 

action will affect the quality of the human environment in a 

significant manner or to a significant extent not already 

considered” to require a supplemental EIS. Id. (internal 

alteration and quotation omitted). Put simply, courts must 

apply the rule of reason, which “turns on the value of the new 
21

information to the still pending decisionmaking process.” Id. 

at 374. In turn, we have held that “[t]he overarching question 

is whether an EIS’s deficiencies are significant enough to 

undermine informed public comment and informed 

decisionmaking.” Mayo v. Reynolds, 875 F.3d 11, 20 (D.C. 

Cir. 2017) (quoting Sierra Club v. FERC, 867 F.3d 1357, 1368 

(D.C. Cir. 2017)).

Under this standard, we conclude that the Department was 

not required to prepare a supplemental or a new EIS when it 

selected the Elk Grove location. As we have time and again 

made clear, “a [supplemental EIS] must be prepared only 

where new information ‘provides a seriously different picture 

of the environmental landscape.’” Friends of Capital Crescent 

Trail v. FTA, 877 F.3d 1051, 1060 (D.C. Cir. 2017) (quoting 

Nat’l Comm. for the New River v. FERC, 373 F.3d 1323, 1330 

(D.C. Cir. 2004)). The Department’s identification in the final 

EIS of a preferred action among the alternatives it had assessed 

did not result in a serious change in the environmental 

landscape. Nor does the fact that the Department buttressed its 

analysis in the final EIS help Stand Up’s argument. To support 

its argument that new information affecting the environmental 

analysis came to light, Stand Up points to the hundreds of pages 

of analysis that the Department included in the appendix of the 

final EIS, but Stand Up fails to point to anything in these pages 

that suggests a significant development, thereby requiring 

supplementation. 

Moreover, nothing prohibited the Department from 

buttressing its analysis between the draft EIS and the final EIS. 

In the final EIS, the agency must “respond to comments” and 

“discuss . . . any responsible view which was not adequately 

addressed in the draft” EIS. 40 C.F.R. § 1502.9(b); see also id. 

§ 1503.4(a) (permitting the agency to respond to comments by 

“[m]odify[ing] alternatives including the proposed action” and 

“[s]upplement[ing], improv[ing], or modify[ing] its analyses” 
22

in the final EIS). But this requirement does not, as Stand Up 

suggests, prohibit the Department from buttressing its initial 

analysis. And the Seventh Circuit’s holding in Habitat

Education Center does not contradict this proposition. As 

Stand Up acknowledges, the Seventh Circuit concluded that 

when “[s]trictly construed,” NEPA regulations “permit an 

agency to issue a final EIS that does no more than incorporate 

a previously issued draft EIS and respond to comments 

received.” Habitat Educ. Ctr., Inc. v. U.S. Forest Servs., 673 

F.3d 518, 527 (7th Cir. 2012) (emphasis added). That does not 

mean that an agency is prohibited from going further and 

bolstering its analysis in the final EIS. The agency must only 

be sure that the new analysis is not based on new information 

that paints “a seriously different picture” of the impact of the 

project.5

Nor did the Department’s decision to select the Elk Grove 

location fail to properly notify the public of its plans. 

“Publication of an EIS, both in draft and final form, also serves 

a larger informational role” and “provides a springboard for 

public comment.” Robertson v. Methow Valley Citizens 

Council, 490 U.S. 332, 349 (1989). As such, we must review 

“whether an EIS’s deficiencies are significant enough to 

undermine informed public comment and informed 

decisionmaking.” Mayo, 875 F.3d at 20 (quoting Sierra Club, 

867 F.3d at 1368). But the designation of the Elk Grove site as 

the preferred alternative did not deprive the public and 

interested parties of the opportunity to meaningfully comment 

on or evaluate the proposal. First, the Department listed the 

5 And this determination is subject to considerable judicial deference. 

See Friends of Capital Crescent Trail, 877 F.3d at 1059 (“If an 

agency’s decision not to prepare a [supplemental EIS] turns on a 

‘factual dispute the resolution of which implicated substantial agency 

expertise,’ the court defers to the agency’s judgment.” (quoting 

Marsh, 490 U.S. at 376)).
23

Elk Grove site as an alternative proposal. J.A. 968, 970. 

Second, the Department extensively analyzed the Elk Grove 

site in its draft EIS. J.A. 1191, 1271–1275, 1279–1324, 1329–

1338. The Department also published the draft EIS online and 

made it available in the Galt public library, which is only a few 

miles away from Elk Grove. J.A. 969. Third, the Department’s 

inclusion of the Elk Grove site triggered public comment, 

including by Stand Up and Lynn Wheat, two of the plaintiffs 

in this litigation. Thus, not only did the Department provide 

enough information in its draft EIS to allow for public 

comment on the Elk Grove site, but it actually did lead to public 

participation, including by Appellants. Therefore, the 

Department satisfied its public notice requirements and was not 

required to prepare a supplemental or a new EIS.

Appellants’ remaining arguments are similarly without 

merit. First, Appellants argue that the Department failed to 

follow NEPA regulations because it only made the City of Elk 

Grove a cooperating agency later in the process. But as the 

regulation that Appellants cite makes clear, the lead agency 

must only request “the participation of each cooperating 

agency in the NEPA process at the earliest possible time.” 40 

C.F.R. § 1501.6 (emphasis added). Moreover, an agency could 

“request the lead agency to designate it a cooperating agency,” 

id., which is what the City of Elk Grove did, and the 

Department granted that request. It was thus not error for the 

Department to fail to promptly include the City of Elk Grove 

as a cooperating agency.

Second, Appellants argue that the turnaround time 

between the close of the final EIS’s comment period and the 

issuance of the ROD is impermissibly short. Admittedly, the 

two-day turnaround between the closure of the comment period 

and the issuance of the ROD is not typical. But Appellants

offer no controlling precedent suggesting that the quick 

turnaround was per se impermissible. And as the District Court 
24

recognized, the one case Appellants cite—a district court case 

from North Carolina—is inapposite. There, the agency 

acknowledged that it failed to respond to numerous comments 

and had already reopened the NEPA process. North Carolina 

Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp., 151 

F. Supp. 2d 661, 676 (M.D.N.C 2001). Here, however, 

Appellants have not claimed that the Department failed to 

respond to any comments. Thus, while it may have been

unusual for the Department to have moved so quickly to issue 

the ROD, that short turnaround in and of itself is insufficient to 

invalidate the decision.

V.

Over seven years after the Department began the process 

of acquiring land in trust on behalf of Wilton, it has maintained 

its position that Wilton is a federally recognized tribe and that 

the officials who made the decision properly followed the 

Department’s regulations. In acquiring this land in trust, the 

Department followed all of its statutory and regulatory 

obligations to consider the environmental impact of this 

acquisition. We therefore affirm.

So ordered.