FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CACHIL DEHE BAND OF WINTUN 

INDIANS OF THE COLUSA INDIAN 

COMMUNITY, a federally recognized 

Indian Tribe,

Plaintiff-Appellant,

v.

RYAN K. ZINKE, Secretary of the 

Interior; KEVIN K. WASHBURN, 

Esquire, Assistant Secretary of the 

Interior - Indian Affairs; MICHAEL S.

BLACK, Director, United States 

Bureau of Indian Affairs; AMY 

DUTSCHKE, Director, Pacific Region, 

Bureau of Indian Affairs; ESTOM 

YUMEKA MAIDU TRIBE OF THE 

ENTERPRISE RANCHERIA,

CALIFORNIA; BUREAU OF INDIAN 

AFFAIRS; DEPARTMENT OF THE 

INTERIOR,

Defendants-Appellees.

No. 17-15245

D.C. No.

2:12-cv-03021-

TLN-AC
2 CACHIL DEHE BAND V. ZINKE

CITIZENS FOR A BETTER WAY;

STAND UP FOR CALIFORNIA!; GRASS 

VALLEY NEIGHBORS; WILLIAM F.

CONNELLY; JAMES M. GALLAGHER;

ANDY VASQUEZ; DAN LOGUE;

ROBERTO’S RESTAURANT; ROBERT 

EDWARDS,

Plaintiffs-Appellants,

v.

RYAN ZINKE, Secretary of the 

Interior; KEVIN K. WASHBURN, 

Esquire, Assistant Secretary of the 

Interior - Indian Affairs; MICHAEL S.

BLACK, Director, United States 

Bureau of Indian Affairs; AMY 

DUTSCHKE, Director, Pacific Region, 

Bureau of Indian Affairs; ESTOM 

YUMEKA MAIDU TRIBE OF THE 

ENTERPRISE RANCHERIA,

CALIFORNIA; BUREAU OF INDIAN 

AFFAIRS; DEPARTMENT OF THE 

INTERIOR,

Defendants-Appellees.

No. 17-15533

D.C. No.

2:12-cv-03021-

TLN-AC

OPINION
CACHIL DEHE BAND V. ZINKE 3

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted February 12, 2018

San Francisco, California

Filed May 2, 2018

Before: Michael Daly Hawkins, Carlos T. Bea,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Bea
4 CACHIL DEHE BAND V. ZINKE

SUMMARY*

Tribal Affairs

The panel affirmed the district court’s summary 

judgment in favor of the Estom Yumeka Maidu Tribe of the 

Enterprise Rancheria in an action seeking to enjoin the U.S. 

Department of the Interior’s Bureau of Indian Affairs 

(“BIA”) from taking a parcel of land into trust for Enterprise 

so that Enterprise could build a casino and hotel complex. 

Following the BIA’s decision to make the parcel 

acquisition, a nearby Indian Tribe with a casino of its own 

(“Colusa”), and various citizens’ groups and individuals 

opposed to the construction of the Enterprise Casino, alleged 

errors in the regulatory process and sued to enjoin the 

acquisition.

The panel held that the Department of the Interior had 

the statutory authority under the Indian Reorganization Act 

to take land into trust for Enterprise. The panel further held 

that, pursuant to the Act’s implementing regulations in 25 

C.F.R. § 151.11(a), the Secretary properly considered 

Enterprise’s “need” for the land. The panel also held that 

Interior’s incorrect legal description of the parcel in the 

Federal Register was a trivial error that was quickly 

corrected, and did not render the final Record of Decision 

arbitrary and capricious. 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CACHIL DEHE BAND V. ZINKE 5

The panel rejected plaintiffs’ challenges based on the 

Indian Gaming Regulatory Act. The panel held that the BIA 

properly consulted with Colusa. The panel rejected Colusa’s 

facial and as-applied challenges to the implementing 

regulation, 25 C.F.R. § 292.3, which mandated consultation 

with communities within twenty-five miles of the proposed 

trust acquisition, and concluded that Colusa was given an 

opportunity to consult. The panel also held that the 

Secretary’s finding that the proposed casino project would 

not be “detrimental to the surrounding community,” 25 

U.S.C. § 2719(b)(1)(A), was not arbitrary and capricious. 

The panel held that the district court did not err in striking a 

declaration, submitted by Colusa as extra-record evidence. 

In a matter of first impression, the panel found that it was 

within the expertise of the agency to determine the 

likelihood required mitigation measures will be followed, 

and the BIA’s determination that Enterprise would fulfill its 

required mitigation measures was not arbitrary or capricious.

The panel rejected plaintiffs’ challenges based on the 

National Environmental Policy Act. The panel held that the 

Final Environmental Impact Statement’s “purpose and 

need” statement was not “artificially limited.” The panel 

also held that Colusa waived any argument that Interior’s 

failure to consider its proposed alternatives represented a 

NEPA violation. The panel further held that Colusa did not 

establish that the Final Environmental Impact Statement 

relied on inadequate or flawed data. The panel also held that 

the Statement took a “hard look” at the environmental 

impacts of the proposed action. Finally, the panel held that 

Colusa did not present any evidence that the BIA failed to 

engage in adequate independent oversight over the 

preparation of the Draft Environmental Impact Statement or 

the Final Environmental Impact Statement, or that the 
6 CACHIL DEHE BAND V. ZINKE

consulting services Analytical Environmental Services may 

perform was in any way significant.

COUNSEL

George Forman (argued), Jay B. Shapiro, and Margaret C. 

Rosenfeld, Forman & Associates, San Rafael, California, for 

Plaintiff-Appellant Cachil Dehe Band of Wintun Indians of 

the Colusa Indian Community.

Benjamin S. Sharp (argued) and Jennifer A. MacLean,

Perkins Coie LLP Washington, D.C.; Brian Daluiso, Perkins

Coie LLP, San Diego, California; for Plaintiffs-Appellants

Citizens for a Better Way, Stand Up for California!, Grass 

Valley Neighbors, William F. Connelly, James M. 

Gallagher, Andy Vasquez, Dan Logue, Roberto’s 

Restaurant, and Robert Edwards.

Mary Gabrielle Sprague (argued) and John L. Smeltzer,

Attorneys; Eric Grant, Deputy Assistant Attorney General; 

Jeffrey H. Wood, Acting Assistant Attorney General; 

Appellate Section, Environment and Natural Resources 

Division, United States Department of Justice, Washington, 

D.C.; for Federal Defendants-Appellees.

Matthew G. Adams (argued) and Jessica L. Duggan,

Dentons US LLP, San Francisco, California; Michael S. 

Pfeffer and John A. Maier, Maier Pfeffer Kim Geary & 

Cohen LLP, Oakland, California; for Defendants-Appellees

Estom Yumeka Maidu Tribe of the Enterprise Rancheria, 

California.
CACHIL DEHE BAND V. ZINKE 7

Frank R. Lawrence and Zehava Zevit, Law Office of Frank 

Lawrence, Grass Valley, California, for Amicus Curiae 

Mooretown Rancheria of Maidu Indians of California.

OPINION

BEA, Circuit Judge:

On July 15, 2003, the Estom Yumeka Maidu Tribe of the 

Enterprise Rancheria (“Enterprise”) asked the Bureau of 

Indian Affairs (the “BIA”), a part of the United States 

Department of the Interior, to take a parcel of land into trust 

for them so that Enterprise could build a casino and hotel 

complex. In November 2012, after almost ten years of 

studies, expert reports, meetings, and other regulatory 

processing, the BIA agreed to the acquisition. Immediately 

following the BIA’s decision, several entities, including the 

Cachil Dehe Band of Wintun Indians of the Colusa Indian 

Community (“Colusa”), a nearby Indian Tribe with a casino 

of its own, and various citizens’ groups and individuals 

opposed to the construction of the Enterprise Casino 

(together, “Citizens”),1 alleged a host of errors in the lengthy 

regulatory process and sued to enjoin the trust acquisition. 

The district court granted summary judgment in favor of 

Enterprise. For the reasons that follow, we affirm.

 1 This group of concerned citizens includes the groups Citizens for 

a Better Way, Stand Up For California!, and Grass Valley Neighbors; 

individuals William F. Connelly, James M. Gallagher, Andy Vasquez, 

Dan Logue, Robert Edwards; and the business Roberto’s Restaurant.
8 CACHIL DEHE BAND V. ZINKE

I.

In 1915, a representative of the United States Indian 

Service visited Enterprise, California, and completed a 

census of fifty-one Indians “in and near Enterprise in Butte 

County, California.” That same year, the United States 

purchased two forty-acre parcels of land in trust for Indians 

living in Enterprise: (1) Enterprise 1, located approximately 

ten miles northeast of Oroville, and (2) Enterprise 2, located 

closer to Oroville (together, the “Enterprise Rancheria”). 

The United States continues to hold Enterprise 1 in trust; 

however, in 1965, the State of California purchased 

Enterprise 2 and flooded it to allow the construction of the 

Oroville dam. The parties agree that since 1915 Indians have 

been living on the Enterprise Rancheria, and the Enterprise 

Rancheria is an Indian Reservation.

In 1934, Congress enacted the Indian Reorganization 

Act, 25 U.S.C. § 5108 et seq., (the “IRA”). Section 18 of the 

IRA states that the Act “shall not apply to any reservation 

wherein a majority of the adult Indians, voting at a special 

election duly called by the Secretary of the Interior, shall 

vote against its application.” Id. § 5125. In due course, socalled Section 18 elections were held on Indian reservations 

around the country, including on Enterprise Rancheria on 

June 16, 1935.2

 2 Incidentally, the Indians in Enterprise voted against the application 

of the IRA. In 1983, Congress enacted the Indian Land Consolidation 

Act, Pub. L. No. 97-459, 96 Stat. 2517 (1983), which amended the IRA 

to provide that Section 5 of the IRA—the Section which allows for the 

taking of land into trust for Indians’ benefit—would apply 

notwithstanding a tribe’s rejection of the IRA pursuant to a Section 18 

election.
CACHIL DEHE BAND V. ZINKE 9

In 1979, the Department of the Interior began to publish 

lists of federally recognized tribes in the Federal Register. 

The “Enterprise Rancheria of Maidu Indians” has appeared 

on each list from 1979 to the present.

On August 13, 2002, Enterprise submitted a “fee-totrust” application to the Secretary of the Interior pursuant to 

the IRA, 25 U.S.C. § 5108, which authorizes the Secretary 

to take lands in trust for the benefit of “the Indian tribe or 

individual Indian for which the land is acquired.” The 

application asked the Secretary to accept into trust forty 

acres of land owned by Yuba County Entertainment, L.L.C., 

(the “Yuba Site”), located in Yuba County, California, so 

Enterprise could develop an off-reservation casino and hotel.

There are a number of regulatory hurdles which must be 

vaulted to take land into trust for off-reservation gaming. 

While the IRA allows for the Secretary to take land into trust 

for the benefit of Indians, the Indian Gaming Regulatory 

Act, 25 U.S.C. § 2701 et seq. (“IGRA”) generally prohibits 

gaming on such lands taken into trust after October 17, 1988. 

However, gaming is permitted if the Secretary determines, 

after consulting with the “Indian tribe and appropriate State 

and local officials, including officials of other nearby Indian 

tribes,” that the gaming would “not be detrimental to the 

surrounding community,” and if the Governor of the relevant 

state agrees with the Secretary’s determination. 25 U.S.C. 

§ 2719(b)(1)(A). This is referred to as the Secretarial twopart determination.

In addition to satisfying IGRA, more regulatory hurdles 

remain. The Department of the Interior and the applicant 

Tribe must satisfy the National Environmental Policy Act, 

42 U.S.C. § 4321 et seq, (“NEPA”). NEPA requires that all 

federal agencies considering actions “significantly affecting 

the quality of the human environment” prepare a “detailed 
10 CACHIL DEHE BAND V. ZINKE

statement” describing the “environmental impact of the 

proposed action,” “any adverse environmental effects which 

cannot be avoided should the proposal be implemented,” 

“alternatives to the proposed action,” “the relationship 

between local short-term uses of man’s environment and the 

maintenance and enhancement of long-term productivity,” 

and “any irreversible and irretrievable commitments of 

resources which would be involved in the proposed action 

should it be implemented.” Id. § 4332(C). The “detailed 

statement” is referred to as an Environmental Impact 

Statement (an “EIS”).

These various statutory and regulatory requirements 

created a lengthy administrative process.

First, on August 13, 2002, Enterprise submitted its “feeto-trust” application to the Secretary of the Interior. The 

application requested that Interior take title to the Yuba Site 

in trust so that the Tribe could build a 207,760 square foot 

casino and accompanying hotel. The application included a 

December 2001 document entitled “Gaming and Hotel 

Market Assessment: Marysville, California,” prepared by 

The Innovation Group. The assessment evaluated ten market 

areas in northern California, analyzed the characteristics of 

other existing tribal casinos, and estimated revenues and 

expenses for a casino/hotel for 2004–2008.

Second, Enterprise retained a consultant, Analytical 

Environmental Services (“AES”), to submit a draft 

Environmental Assessment (an “EA”).3 The draft EA was 

 3 Pursuant to 40 C.F.R. § 1508.9, an EA is “a concise public 

document for which a Federal agency is responsible that serves to . . .

[b]riefly provide sufficient evidence and analysis for determining 

whether to prepare an [EIS].”
CACHIL DEHE BAND V. ZINKE 11

submitted to the BIA on July 15, 2003. The BIA reviewed 

the draft EA and suggested numerous revisions. In May 

2004, the EA was finalized. The BIA made the EA available 

for public review and comment by publishing a Notice of 

Availability in a Marysville newspaper and mailing the EA 

to local, State, and tribal governments. On July 7, 2004, the 

BIA sent a copy of the EA to Colusa. Although NEPA and 

administrative regulations provide for the receipt of 

comments as to the EA, Colusa did not comment on it.

Third, after receipt of comments by others than Colusa 

on the EA, the BIA decided to prepare an EIS to analyze 

further the possible environmental effects of the proposed 

fee-to-trust acquisition. Toward that end, the BIA entered 

into a “Professional Services Third-Party Agreement” with 

AES on January 6, 2005. The Agreement states that the BIA 

would “provide AES the technical direction, review, and 

quality control for the preparation of the Scoping Report, 

EIS, technical studies, and other NEPA-related documents” 

and that AES would be the “project manager on behalf of 

[the] BIA.” Enterprise would pay AES’s fees.

Fourth, after having hired AES, the BIA engaged in a 

“scoping” process. “Scoping is a process that continues 

throughout the planning and early stages of preparation of an 

[EIS] . . . to engage State, local and tribal governments and 

the public in the early identification of concerns, potential 

impacts, relevant effects of past actions and possible 

alternative actions.” 43 C.F.R. § 46.235. A “scoping” 

meeting was held on June 9, 2005 in Marysville. The BIA 

also published a Notice of Intent to Prepare an EIS in the 

Federal Register on May 20, 2005, and in Marysville and 

Sacramento newspapers shortly thereafter. Comments to the 

scoping process were submitted in writing and at the public 

meeting. Colusa did not comment.
12 CACHIL DEHE BAND V. ZINKE

Fifth, having engaged in the scoping process, AES 

prepared a draft EIS (“DEIS”), which it completed under the 

BIA’s supervision in February 2008. The DEIS analyzed 

five potential alternatives to the regulatory action: 

A) Enterprise Rancheria’s proposed facility on the Yuba 

Site; B) a smaller casino without a hotel on the Yuba Site; 

C) a water park on the Yuba Site; D) a small casino on 

another site in Butte County; and E) no action. The DEIS 

recognized that while the proposed facility on the Yuba Site 

would benefit Enterprise, “the surrounding tribes that 

operate casinos could experience decreases in winnings, and 

potentially be adversely impacted by the decreases,” with the 

proposed casino/hotel project expected to capture 

“approximately $77 million [per year] in total gaming 

win[nings] from the local market.” The analysis was based 

on a study by the company Gaming Market Advisors from 

June 2006 contained in Appendix M of the DEIS, entitled 

“Socio-Economic, Growth Inducing and Environmental 

Justice Impact Study.”

The DEIS was made available for review and comment 

was invited through publication in the Federal Register, and 

in Chico, Marysville, Oroville, and Sacramento newspapers. 

A public hearing was held on April 9, 2008. While multiple 

comments on the project were submitted, including by 

Indian Tribes who were opposed to the project,4 again, 

Colusa did not submit any comments on the project.

 4 For example, on April 8, 2008, the Picayune Rancheria of the 

Chukchansi Indians expressed to the BIA its view that “[t]he acquisition 

of land outside of the tribe’s historic homelands solely to allow for a tribe 

to own a casino is inconsistent with the congressional intent behind the 

IRA.” The Chukchansi Indians are not a party to this lawsuit.
CACHIL DEHE BAND V. ZINKE 13

Sixth, in addition to complying with the regulatory steps 

required by NEPA, Enterprise and the BIA took the steps 

required under IGRA’s Secretarial two-part determination. 

In Part 1 of the Secretarial two-part determination, the 

Secretary of the Interior determines whether “a gaming 

establishment on newly acquired lands would be in the best 

interest of the Indian tribe and its members, and would not 

be detrimental to the surrounding community.” 25 U.S.C. 

§ 2719(b)(1)(A). In making his determination that the

project will not be “detrimental” to the surrounding 

community, the Secretary is required to seek the consultation 

of State and local officials, including officials of nearby 

Indian tribes and other communities surrounding the 

proposed site. 25 C.F.R. § 292.13. The regulations specify 

that the “surrounding community means local governments 

and nearby Indian tribes located within a twenty-five-mile 

radius of the site of the proposed gaming establishment.” Id.

§ 292.2. However, a local government or Indian tribe 

“located beyond the [twenty-five]-mile radius may petition 

for consultation if it can establish that its governmental 

functions, infrastructure or services will be directly, 

immediately and significantly impacted by the proposed 

gaming establishment.” Id.

The BIA commenced the consultation on January 16, 

2009, and sent letters to State and local officials within a 

twenty-five-mile radius of the Yuba Site soliciting their 

input on the proposed project. Colusa is not located within 

twenty-five miles of the proposed casino project. Colusa 

wrote to the BIA on June 23, 2009, and stated that Colusa 

should be consulted and that, given the potential impact of 

the proposed casino on Colusa’s own casino revenues, the 

BIA should not “slavish[ly] adhere[] to the arbitrary [twentyfive]-mile standard.” In response, the BIA provided Colusa 

with Enterprise’s fee-to-trust application and the two-part 
14 CACHIL DEHE BAND V. ZINKE

determination request. Colusa did not respond to the BIA’s 

letter.

Seventh, in May 2010 the BIA completed the final EIS 

(the “FEIS”). The FEIS retained the same five alternatives 

which were contained in the DEIS, and incorporated the 

same analysis as included in the DEIS with respect to the 

casino alternatives’ effects on other tribal casinos. The BIA 

made the FEIS available for public review and comment by 

publishing a Notice of Availability in the Federal Register 

and Chico, Marysville, and Oroville newspapers. Colusa 

then submitted a comment letter dated September 7, 2010.

The comment letter complained that the FEIS’s Purpose and 

Need Statement was unduly restrictive; the FEIS failed to 

consider reasonable alternatives; and Appendix M, which 

analyzed the effect of the proposed casino on other tribal 

casinos, relies on “conjecture rather than data.” The BIA 

responded to each of the comments.

Eighth, having published the FEIS and considered 

comments, the BIA published its Record of Decision under 

IGRA (the “IGRA ROD”) in September 2011. The IGRA 

ROD concluded that the project would “1) be in the best 

interest of the Tribe and its members; and 2) that it would 

not be detrimental to the surrounding community.” Pursuant 

to 25 U.S.C. § 2719(b)(1)(A), the BIA sought the 

concurrence of California Governor Jerry Brown in its 

decision. Governor Brown concurred by letter dated August 

30, 2012.

Finally, the BIA issued a Record of Decision under the 

IRA (“IRA ROD”) in November 2012 pursuant to 25 U.S.C. 

§ 5108. The IRA ROD concluded the trust acquisition on the 

Yuba Site would “provide the Tribe with the best 

opportunity for attracting and maintaining a significant, 

stable, long-term source of governmental revenue, and 
CACHIL DEHE BAND V. ZINKE 15

accordingly, the best prospects for maintaining and 

expanding tribal governmental programs to provide a wide 

range of health, education, housing, social, cultural, 

environmental, and other programs, as well as employment 

and career development opportunities for its members.”

II.

The lawsuits began immediately following the IRA 

ROD’s publication. The United Auburn Indian Community 

of the Auburn Rancheria (the “UAIC”) filed a complaint in 

the District of Columbia on December 12, 2012. Colusa filed 

a complaint in the Eastern District of California a few days 

later. On December 20, 2012, Citizens filed a complaint in 

the District of Columbia as well. The Citizens and UAIC 

cases were consolidated and transferred to the Eastern 

District of California. On January 23, 2013, the 

Citizens/UAIC case was further consolidated with Colusa’s 

into a single case. Enterprise intervened as a defendant. 

Citizens, Colusa, and UAIC immediately moved for 

injunctive relief to prevent the BIA from taking the land into 

trust for Enterprise. The motion for injunctive relief was 

denied. The Yuba Site was taken into trust on May 15, 2013.

The lawsuit, however, continued.

Before the district court, the UAIC, Citizens, and Colusa 

alleged that Interior violated NEPA, IGRA, the IRA, and the 

Clean Air Act, 42 U.S.C. § 7506(c). The parties cross-moved 

for summary judgment. In support of their motion for 

summary judgment, Colusa submitted a Declaration by 

economist Alan Meister, dated October 9, 2014, along with 

a two-page summary of a study Meister oversaw entitled 

“Economic Impacts of the Proposed Enterprise Rancheria 

Casino on the Colusa Indian Community & Colusa Casino 

Resort,” (together the “Meister Declaration”), which 

purports to demonstrate that Enterprise’s proposed casino 
16 CACHIL DEHE BAND V. ZINKE

will have a devastating economic impact on Colusa. As a 

result, the Meister Declaration is particularly relevant to 

Plaintiffs’ claim that Defendants violated IGRA, as IGRA 

requires the Secretary to determine that the proposed casino 

will not be “detrimental to the surrounding community.” 

25 U.S.C. § 2719(b)(1)(A).

The regulatory process ended when the IRA ROD was 

issued on November 21, 2012. However, the Meister 

Declaration first appeared as an exhibit in support of 

Colusa’s 2014 motion for summary judgment, and therefore 

was not in the Administrative Record considered by the 

Agency. Interior moved to strike the Meister Declaration 

from the district court record. The district court granted the 

motion to strike the Meister Declaration because it postdates the Agency decision.

On September 23, 2015, the district court granted 

Defendants’ motion for summary judgment on each of 

plaintiffs’ claims. Plaintiffs also filed a motion for 

reconsideration, which the district court denied on January 

20, 2017.

Both Colusa and Citizens timely appealed the district 

court’s decision, and those appeals were consolidated into 

this action. The UAIC is not a plaintiff in this action.

III.

We review the district court’s grant of summary 

judgment de novo, Schneider v. Vennard (In re Apple 

Computer Sec. Litig.), 886 F.2d 1109, 1112 (9th Cir. 1989), 

and its order to strike the Meister Declaration for abuse of 

discretion, Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 

970, 973 (9th Cir. 2010). Under the Administrative 

Procedure Act, 5 U.S.C. § 706 et. seq., an agency’s action 
CACHIL DEHE BAND V. ZINKE 17

may be reversed only if it was arbitrary, capricious, an abuse 

of discretion, or otherwise contrary to law. Mt. St. Helens 

Mining & Recovery Ltd. P’ship v. United States, 384 F.3d 

721, 727 (9th Cir. 2004).

IV.

Citizens and Colusa raise a host of statutory, regulatory, 

and procedural challenges to the Enterprise trust 

acquisition.5

A. Challenges Based on the Indian Reorganization 

Act

1. Statutory Authority for Trust Acquisition

As a preliminary matter, Citizens argues that the 

Department of the Interior does not have the statutory 

authority under the IRA to take land into trust for Enterprise. 

Citizens argues that while Enterprise may be recognized as 

an Indian Tribe today, Interior has failed to establish that 

Enterprise was an Indian Tribe under federal jurisdiction in 

1934, the year the IRA was passed.

Citizens is incorrect. 25 U.S.C. § 5108 authorizes the 

Interior to take land into trust “for the purpose of providing 

land for Indians.” The IRA defines “Indians” as “all persons 

of Indian descent who are members of any recognized Indian 

 5 Colusa has also moved for judicial notice of the notices granting 

petitions for review in the California Supreme Court of Stand Up for 

California! v. State, 211 Cal. Rptr. 3d 490 (Ct. App. 2016) and United 

Auburn Indian Community of Auburn Rancheria v. Brown, 208 Cal. 

Rptr. 3d 487 (Ct. App. 2016). Those cases are potentially relevant only 

to Colusa’s separate motion to stay, which we have already denied. See

Dkt. No. 31. The motion for judicial notice is therefore DENIED.
18 CACHIL DEHE BAND V. ZINKE

tribe” that was “under Federal jurisdiction” at the time of the 

IRA’s enactment. 25 U.S.C. § 5129, Carcieri v. Salazar, 

555 U.S. 379, 382 (2009). The IRA further states that “[t]he 

term ‘tribe’ wherever used in this Act shall be construed to 

refer to any Indian tribe, organized band, pueblo, or the 

Indians residing on one reservation.” 25 U.S.C. § 5129 

(emphasis added). The parties agree that the Enterprise 

Rancheria is a reservation, and that Indians have lived on it 

since at least 1915.6 Therefore, Indians have been living 

together on the Enterprise Rancheria reservation since at 

least 1915—Enterprise is, by the terms of the IRA, a tribe 

for whom Interior may acquire land in trust. 25 U.S.C. 

§ 5129.

The Enterprise tribe was also “under Federal 

jurisdiction” at the time of the IRA’s enactment. IRA Section 

18 included an opt-out provision, and Enterprise voted to opt 

out in an election held on June 16, 1935. In the IRA ROD, 

the BIA states that “[t]he calling of a Section 18 election at 

the Tribe’s Reservation conclusively establishes that the 

Tribe was under federal jurisdiction.”

Citizens disputes that the Section 18 election 

demonstrates the existence of a single tribe on the 

reservation. Citizens reasons that contemporaneous accounts 

from the Department of Interior show that Indians with 

differing tribal ancestries often lived together on the same 

reservation, and that in any event the voting record from the 

Section 18 election does not describe any specific tribal 

affiliation of those Indians who voted. Taken together, 

 6 As Citizens acknowledges, the record establishes that the United 

States purchased the land which became known as the Enterprise 

Rancheria in 1915 so that certain Indians “may have a permanent home 

on this land.”
CACHIL DEHE BAND V. ZINKE 19

Citizens concludes that, while the Section 18 election may 

be evidence that individual Indians were living at the 

reservation, the election does not demonstrate that those 

Indians were part of a single recognized tribe. The 

individuals who voted in that election may have had multiple 

tribal affiliations, or no affiliation at all.

Citizens’ argument ignores the expansive definition of 

“tribe” contained in the IRA. Specifically, the IRA’s 

definition of “tribe” includes “Indians residing on one 

reservation.” 25 U.S.C. § 5129. Citizens’ observation that 

there may have been individuals with differing tribal 

ancestries who voted in the 1935 election is irrelevant: there 

is nothing to suggest that Congress precluded Indians from 

holding multiple tribal identities.7 See Cty. of Amador v. U.S. 

Dep’t of the Interior, 872 F.3d 1012, 1015, 1028 (9th Cir. 

2017) (determining that the Ione Band is an Indian Tribe 

despite having its origin as “the amalgamation of several 

‘tribelets’ indigenous to Amador county”).

To hold otherwise would also invite a circuit split. In 

Stand Up For California! v. United States Department of

Interior, 879 F. 3d 1177 (D.C. Cir. 2018), the D.C. Circuit 

concluded that a 1935 Section 18 election may be used to 

demonstrate the existence of an Indian Tribe under federal 

jurisdiction for purposes of the IRA. See id. at 1181–83. The 

posture of that case is nearly identical to this one. In Stand 

Up for California!, the plaintiff objected to Interior’s 

acquisition of a tract of land for the benefit of the North Fork 

Rancheria of Mono Indians (the “North Fork”) so that the 

 7 Cf. Act of Aug. 11, 1964, Pub. L. No. 88-419, 78 Stat. 390, 391 

(clarifying that a prior statute which stripped Indian status from certain 

reservation residents left those affected wholly bereft of Indian status 

only if they were “not members of any other tribe or band.”)
20 CACHIL DEHE BAND V. ZINKE

North Fork could build a casino. As in this case, the North 

Fork Record of Decision cited a Section 18 election held on 

the North Fork reservation shortly after the passage of the 

IRA as evidence the North Fork Indians were a “tribe” 

“under federal jurisdiction” in 1934. Id. at 1182–84. The 

plaintiff argued that the election was “insufficient to 

establish, broadly, that the participants in the North Fork’s 

[S]ection 18 election belonged to any one tribe.” Id. at 1182. 

The D.C. Circuit analyzed the “IRA’s clear text,” and 

concluded that the “‘Indians residing on one reservation’ 

comprise a ‘tribe’ under the Act.’” Id. at 1183 (citing 

25 U.S.C. § 5129). The D.C. Circuit therefore concluded 

that a Section 18 election held on a reservation represents 

adequate evidence of the tribe’s existence, as “‘nothing in 

the text of [the IRA] requires a tribe’ within the meaning of 

the statute ‘to be “single,” “unified,” or comprised of 

members of the same historically cohesive or 

ethnographically homogenous tribe.’” Id. (alterations in 

original) (quoting Stand Up for California! v. U.S. Dep’t of 

the Interior, 204 F. Supp. 3d 212, 289 (D.D.C. 2016)). We 

agree.

To summarize, Citizens is correct that the BIA has an 

affirmative obligation to show that Enterprise was a “tribe” 

under federal jurisdiction in 1934. But because of the IRA’s 

expansive definition of “tribe,” evidence demonstrating that 

a group of Indians was “residing on one reservation” in 1934 

would suffice to demonstrate that those Indians were in a 

“tribe” pursuant to the IRA. The parties do not dispute that 

Indians have been residing on Enterprise Rancheria, a 

reservation, since the Rancheria was established in 1915.8

 8 We also agree with the D.C. Circuit in Stand Up for California!

that we may consider the record evidence describing the 1915 land 

acquisition. See Stand Up for California!, 879 F.3d at 1183 (“Stand Up 
CACHIL DEHE BAND V. ZINKE 21

The Section 18 election further demonstrates the “tribe” was 

under federal jurisdiction when the IRA was enacted. The 

Interior therefore had authority to take land into trust for 

Enterprise’s benefit.

2. “Need” for the land

The implementing regulations for the IRA, which are 

contained in 25 C.F.R. Part 151, explain that the Secretary 

may take land into trust for tribes if “the acquisition of the 

land is necessary to facilitate tribal self-determination, 

economic development, or Indian housing.” 25 C.F.R. 

§ 151.3(a)(3). Among other things, the Secretary must 

specifically consider “[t]he need of the individual Indian or 

the tribe for additional land.” 25 C.F.R. § 151.11(a).9 The 

 

insists that we may not consider this purchase because the Department 

treated the section 18 election alone as ‘conclusively establish[ing] that 

the [North Fork] was under Federal jurisdiction’ in 1934. Stand Up 

misreads the Department’s decision. Although the Department treated 

the election held ‘at the Tribe’s Reservation’ as dispositive of the 

government’s jurisdictional relationship with the reservation's residents, 

it presupposed that the reservation was a ‘Tribe’s.’ The source of that 

presupposition becomes clear in the decision's very next section, where 

the Department characterized the 1916 Rancheria purchase as 

establishing the North Fork’s ‘tribal land.’”). So too here. In our case, 

the IRA ROD states that the “Section 18 election at the Tribe’s 

Reservation conclusively establishes that the Tribe was under federal 

jurisdiction.” That statement presupposes that the reservation was the 

Tribe’s. As in Stand Up for California!, the source of that presupposition 

appears in the very next section, wherein the IRA ROD describes the 

land purchased in 1915 as the “Tribe’s . . . land holdings.”

9 The other considerations include, (a) the statutory authority for the 

acquisition and any limitations contained in such authority; (c) “the 

purposes for which the land will be used”; (e) if the land acquired is in 

unrestricted fee status, the impact on the State resulting from the removal 

of the land from the tax rolls; (f) “jurisdictional problems and potential 
22 CACHIL DEHE BAND V. ZINKE

IRA ROD explained that Enterprise had limited land

holdings, and with such limited holdings, “the Tribe has 

been unable to exercise many of its sovereign powers. The 

Tribe’s office is located on non-Indian fee land, and there is 

no usable land base for tribal housing programs of any kind 

or economic development. The Tribe needs the subject 

parcel held in trust in order to better exercise its sovereign 

responsibility to provide economic development to its tribal 

citizens.”

Colusa argues in their opening brief that the IRA ROD 

“did not find that Enterprise had a ‘need’ for the Yuba Parcel

. . . so much as a ‘desire’ for it.” In other words, this 

particular parcel is not essential for Enterprise’s economic 

development, and Enterprise therefore does not need it, as 

other parcels might provide adequate opportunity for 

economic development.

Colusa asks the impossible. It is unclear how any trust 

application can prove a negative and demonstrate that a 

single parcel of land—and only that particular parcel—will 

suffice. Colusa points to no case, and we are aware of none, 

where a court has mandated such an undertaking. By 

contrast, in South Dakota v. United States Department of the 

Interior, 423 F.3d 790, 801 (8th Cir. 2005), the Eighth 

Circuit rejected a similar argument. In that case, the court 

 

conflicts of land use which may arise”; (g) if the land is acquired in fee 

status, whether the BIA is equipped to discharge additional 

responsibilities; (h) the extent to which the applicant provided 

information that allows the Secretary to comply with 516 DM 6, 

appendix 4, National Environmental Policy Act Revised Implementing 

Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substance 

Determinations. 25 C.F.R. § 151.11 (a), incorporating by reference 

25 C.F.R. § 151.10 (a)-(c), (e)–(h).
CACHIL DEHE BAND V. ZINKE 23

considered the State of South Dakota’s appeal of Interior’s 

decision to take certain land into trust for the Lower Brule 

Sioux Tribe. Id. at 793. One of the plaintiff’s arguments was 

that the Secretary did not describe sufficiently the tribe’s 

“need” for the land. Id. at 801. The panel determined that it 

is “sufficient for the Department’s analysis to express the 

Tribe’s needs and conclude generally that IRA purposes 

were served.” Id.

10 We agree. Interior determined that 

Enterprise needed economic development; the Yuba Site 

provides an opportunity for Enterprise to engage in that 

development.

Second, Colusa argues that the existence of other parcels 

owned by Enterprise somehow undercuts Enterprise’s need 

for the land. Colusa notes that Enterprise previously 

purchased land in Butte County, with funds granted by the 

United States Department of Housing and Urban 

Development and one of the authorized uses for that land is 

economic development. But the existence of other land does 

not undercut Enterprise’s “need” for the Yuba parcel. 

Indeed, Colusa had recognized in its 2010 comments on the 

FEIS that Enterprise intends to use the sixty-three-acre 

parcel for tribal member housing purposes. Enterprise 

secured a place for its members to live. That does not render 

arbitrary or capricious its acquisition of a place for them to 

work as well.

 10 South Dakota had argued that the Secretary did not provide 

enough detail describing why it was necessary to take the land into trust 

status rather than fee status. The Eight Circuit determined that “it would 

be an unreasonable interpretation of 25 C.F.R. § 151.10(b) to require the 

Secretary to detail specifically why trust status is more beneficial than 

fee status.” South Dakota, 423 F.3d at 801.
24 CACHIL DEHE BAND V. ZINKE

3. Mis-description of the Parcel

On December 3, 2012, Interior published in the Federal 

Register a Notice of Final Agency Determination to take 

land into trust for the benefit of Enterprise Rancheria, 

77 Fed. Reg. 71612. That Notice included a description of 

the land to be taken into trust. However, the notice provided 

an incorrect legal description of an eighty-acre parcel—the 

parcel which would be divided prior to the transfer of forty 

acres into trust for Enterprise’s benefit. Interior corrected 

this error in the legal description the following month. See 

78 Fed. Reg. 114 (Jan. 2, 2013).

Colusa infers from this mis-description that Interior did 

not actually know what piece of land was being taken into 

trust, thereby rendering the final ROD arbitrary and 

capricious.

However, the administrative record is replete with 

descriptions of the correct forty-acre parcel, including 

detailed maps. The mis-description was a trivial error that 

was quickly corrected. Colusa cites no case law, and we are 

aware of none, indicating that such trivial errors require the 

invalidation of an ROD.

B. Challenges based on the Indian Gaming 

Regulatory Act

IGRA generally prohibits gaming on lands which the 

Government has taken into trust for an Indian tribe after 

1988, 25 U.S.C. § 2719(a). However, gaming may be 

allowed when

the Secretary, after consultation with the 

Indian tribe and appropriate State and local 

officials, including officials of other nearby 
CACHIL DEHE BAND V. ZINKE 25

Indian tribes, determines that a gaming 

establishment on newly acquired lands would 

be in the best interest of the Indian tribe and 

its members, and would not be detrimental to 

the surrounding community, but only if the 

Governor of the State in which the gaming 

activity is to be conducted concurs in the 

Secretary’s determination.

Id. § 2719(b)(1)(A). This process is referred to as a 

“Secretarial Determination.” Pursuant to the statute and its 

implementing regulations, there are four basic steps to a 

Secretarial Determination: 1) the Secretary consults with 

relevant State and local officials, including “nearby” Indian 

tribes; 2) the Secretary determines, after consultation, that 

the proposed site is in the best interest of the tribe which will 

engage in the gaming; 3) the Secretary determines that the 

proposed site will not be “detrimental to the surrounding 

community”; and 4) the Secretary receives the concurrence 

from the Governor of the affected State (in this case, 

California). See id. According to the implementing 

regulations, a tribe is “nearby” when it is within twenty-five 

miles of the proposed site. 25 C.F.R. § 292.2.

Colusa describes three alleged errors in this process. 

First, Colusa argues that the BIA erred when it failed to 

consult with Colusa. Second, Colusa argues that the 

regulation which mandates consultation only with those 

communities within twenty-five miles of the proposed trust 

acquisition is invalid. Finally, Colusa argues that the 

Secretary’s finding that the proposed casino project would 

not be “detrimental to the surrounding community,” 

25 U.S.C. § 2719(b)(1)(A), was arbitrary and capricious. To 

support that argument, Colusa contends that a document it 

submitted on summary judgment—the Meister 
26 CACHIL DEHE BAND V. ZINKE

Declaration—shows that the casino project would be 

detrimental to Colusa and should not have been stricken by 

the district court.

Citizens argues the IGRA ROD’s determination that the 

proposed acquisition would not be “detrimental to the 

surrounding community” is arbitrary and capricious because 

the IGRA ROD fails to explain how necessary mitigation 

measures will be enforced.

1. The BIA’s consultation with Colusa

IGRA requires the Department of the Interior to consult 

with “nearby” Indian tribes when Interior considers a trust 

acquisition for the purpose of Indian gaming. The 

implementing regulations, 25 C.F.R. § 292.2, define as 

“nearby” those tribes located within a twenty-five mile 

radius. A tribe “located beyond the [twenty-five]-mile radius 

may petition for consultation if it can establish that its 

governmental functions, infrastructure or services will be 

directly, immediately and significantly impacted by the

proposed gaming establishment.” 25 C.F.R. § 292.2. Colusa 

is located more than twenty-five miles from the location of 

the proposed hotel and casino project.

On January 16, 2009, the BIA sent letters to State and 

local officials within a twenty-five-mile radius of the Yuba 

Site to solicit input and “consult” on the proposed project. 

These State and local officials did not include members of 

Colusa. On June 23, 2009, Colusa wrote to the BIA and 

stated that Colusa, despite being located more than twentyfive miles from the Yuba Site, should be consulted. On July 

18, 2009 the BIA wrote a letter back to Colusa. That letter 

enclosed a number of documents including Enterprise’s feeto-trust application, and explained that although “pursuant to 

25 C.F.R. Part 292 you do not qualify as a nearby tribe for 
CACHIL DEHE BAND V. ZINKE 27

purposes of consultation under this part, you may submit 

comments and/or documents that establish that your 

governmental functions, infrastructure or services will be 

directly, immediately and significantly impacted by the 

proposed gaming establishment.” Colusa never responded to 

the BIA’s letter.

Nothing more was required of the BIA. It allowed 

Colusa, pursuant to the implementing regulations, to petition 

for consultation. Colusa chose not to do so.

2. Colusa’s challenge to 25 C.F.R. § 292.2

Colusa next argues that the implementing regulations 

defining “nearby” as within twenty-five miles are invalid. 

Colusa appears to bring both a facial and an as-applied 

challenge to the twenty-five mile radius.11

Both challenges fail. To prevail in a facial challenge, 

Colusa “must establish that no set of circumstances exists 

under which the regulation would be valid.” Reno v. Flores, 

507 U.S. 292, 301 (1993) (alteration in original omitted) 

(quoting United States v. Salerno, 481 U.S. 739, 745 

(1987)). Colusa has not attempted to do so beyond its 

conclusory condemnation of the regulation. Colusa does not 

explain why in all circumstances, a definition of the word 

“nearby” as meaning “within twenty-five miles” is arbitrary 

and capricious. Colusa is also unable to show the regulation 

was invalid as it was applied to them. Colusa has not 

proffered any evidence establishing that the procedure in 

25 C.F.R. § 292.2, which requires tribes like Colusa to 

 11 We say “appears” to bring facial and as-applied challenges 

because the words “facial” and “as-applied” are not specifically used in 

Colusa’s briefing.
28 CACHIL DEHE BAND V. ZINKE

petition for consultation, is especially burdensome, or even 

that it would have been difficult for Colusa to show that its 

“infrastructure or services will be directly, immediately and 

significantly impacted by the proposed gaming 

establishment.” 25 C.F.R. § 292.2. In any event, regardless 

of the twenty-five-mile radius for consultation of Tribes 

within that area, Colusa was given an opportunity to consult. 

Colusa’s as-applied challenge therefore also fails.

3. The Meister Declaration

IGRA requires that the proposed trust acquisition “not be 

detrimental to the surrounding community.” 25 U.S.C. 

§ 2719(b)(1)(A). In support of its determination that the 

proposed casino will not be detrimental, the FEIS, which is 

explicitly referenced by the IGRA ROD, included a study on 

the economic impact of the casino. Contained in Appendix 

M of the FEIS, the study, entitled “Socio-Economic, Growth 

Inducing and Environmental Justice Impact Study,” 

employed a so-called “gravity model” to determine the likely 

effect of the proposed casino on competitor casinos.12 The 

 12 As Appendix M explains, the gravity model is an application of 

Newton’s Universal Law of Gravitation. Newton’s Law states that every 

particle in the universe attracts every other particle with a force that is 

directly proportional to the product of their masses, and inversely 

proportional to the square of the distance between them. With respect to 

commerce, the gravity model posits that two equally sized commercial 

establishments which are equidistant from a given individual will have 

the same “pull” on that individual. Should one of the establishments be 

twice the size of the other, it will have twice the pull on the individual. 

In the study contained in Appendix M, AES states that “[b]y estimating 

the revenue levels at each of the casino properties within the competitive 

set, researching the number of gaming positions provided within each, 

visiting each facility to understand the relative aesthetic attractiveness 

(including a consideration of non-gaming amenities), and utilizing 
CACHIL DEHE BAND V. ZINKE 29

Appendix M study concluded that “those casinos closest to 

the subject Enterprise Rancheria are expected to experience 

the greatest loss of revenue,” with a total “cannibalization” 

of approximately “$76.8 million in gaming win[nings] from 

the local market area.” It further concluded that the loss in 

revenues would be distributed among twelve competing 

casinos, with the “two market leaders, Thunder Valley and 

Cache Creek, absorbing nearly 2/3 of the drop in revenue.” 

The study estimated that Colusa’s casino would lose 

approximately $4.3 million per year. Colusa does not argue 

that $4.3 million per year represents a detrimental loss.

Nevertheless, on summary judgment Colusa disputed the 

conclusions of the Appendix M study. In support of its 

summary judgment motion Colusa submitted the Meister 

Declaration, which concluded that the Enterprise casino 

would have a larger economic impact on Colusa’s casino 

than indicated by the study in Appendix M. The Meister 

Declaration did not provide the data on which its conclusion 

was based.

The district court struck the Meister Declaration because 

it represents extra-record evidence. It correctly noted that the 

Ninth Circuit allows for a court to review material outside of 

the administrative record in four narrow circumstances:

1) where the extra-record evidence is 

“necessary to determine whether the agency 

has considered all relevant factors and has 

explained its decision”;

 

gaming factors from proprietary and public sources, the model can be 

calibrated to current market conditions.”
30 CACHIL DEHE BAND V. ZINKE

2) where “the agency has relied on 

documents not in the record”;

3) where “supplementing the record is 

necessary to explain technical terms or 

complex subject matter”; or

4) where “plaintiffs make a showing of 

agency bad faith.”

Sw. Ctr. For Biological Diversity v. U.S. Forest Serv.,

100 F.3d 1443, 1451 (9th Cir. 1996) (internal citations 

omitted). Colusa does not dispute the district court’s 

rejection of exception 4 (agency bad faith) or exception 2 

(reliance on material not in the administrative record).

The district court did not abuse its discretion when it 

determined that the Meister Declaration was not “necessary 

to explain technical terms or complex subject matter” 

(exception 3). The Meister Declaration does not explain 

technical terms or elucidate complex subject matter. It 

endorses the methodology employed by the 2006 study 

contained in Appendix M, but criticizes that study as reliant 

on bad data. The Meister Declaration was provided to rebut 

Appendix M, not to explain it.

The district court also did not abuse its discretion when 

it determined that the Meister Declaration was not 

“necessary to determine whether the agency has considered 

all relevant factors” (exception 1). The Meister Declaration 

provides new analysis regarding the economic effects of the 

proposed gaming site on competing casinos. But the 

economic effects on other tribes’ casinos is a problem that 

the BIA considered, even if the specific data proffered in the 

Meister Declaration was not available to the BIA.
CACHIL DEHE BAND V. ZINKE 31

Further, even if one of the enumerated exceptions did 

apply, it would be of no matter, because “exceptions to the 

normal rule regarding consideration of extra-record 

materials only apply to information available at the time, not 

post-decisional information.” Tri-Valley CAREs v. U.S. 

Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) 

(original alterations and internal quotation marks omitted);

see also id. at 1130–31 (“[P]ost-decision information may 

not be advanced as a new rationalization either for sustaining 

or attacking an agency's decision because it inevitably leads 

the reviewing court to substitute its judgment for that of the 

agency.” (internal quotation marks omitted)). The Meister 

Declaration was executed June 24, 2014 and the study it 

contains is dated May 2013. The Meister Declaration and its 

accompanying study therefore post-date the 2011 IGRA 

ROD by approximately two years.

Nor is it clear whether the data pre-dates or post-dates 

the Agency decision. The Meister Declaration attached a 

single exhibit—a two page “report” which summarizes 

Meister’s projections regarding Colusa’s revenues. That 

report makes predictive statements about the effect of the 

Enterprise project on Colusa’s revenues in 2016 through 

2018, and states that it is “based on actual data from both the 

Colusa Casino Resort and the Colusa Indian Community.” 

However, the report does not state the years from which the 

data were drawn, or describe the data with any specificity. 

The data were never provided to Interior.

Because the Meister Declaration is not necessary to 

determine whether the agency has considered all relevant 

factors and has explained its decision, Sw. Ctr. For 

Biological Diversity, 100 F.3d at 1451, and because the 

analysis contained within it post-dates the IGRA ROD, the 
32 CACHIL DEHE BAND V. ZINKE

district court did not abuse its discretion when it granted the 

motion to strike.

4. Enforcement of Mitigation Measures

Citizens also argues that the Secretary’s determination 

that there will be no detrimental harm to the surrounding 

community was arbitrary and capricious. Citizens asserts 

that the mitigation measures to which Enterprise agreed, and 

which the IGRA ROD acknowledges are necessary to 

prevent detrimental harm to the surrounding community, are 

not enforceable. Citizens argues that as a result it was 

arbitrary and capricious for the BIA to rely on such 

“illusory” mitigation.

In the IGRA ROD, Interior states that it has “considered 

potential effects to the environment, including potential 

impacts to local governments and other tribes, has adopted 

all practicable means to avoid or minimize environmental 

harm, and has determined that potentially significant effects 

will be adequately addressed by . . . mitigation measures.” 

The IGRA ROD further states that the “Preferred 

Alternative”—i.e., the selection of the Yuba Site for the 

casino project—would be implemented “subject to 

implementation of the mitigation measures.” The IGRA 

ROD contains approximately twenty pages of detailed 

mitigation measures, ranging from the requirement that 

Enterprise “install a trash compactor for cardboard and paper 

products,” to the requirement that Enterprise implement 

water conservation measures. The mitigation measures also 

include less specific requirements; for example, Enterprise 

is told to “enter into [a Memorandum of Understanding] or 

provide for a similar agreement to reimburse the affected law 

enforcement department for the provision of law 

enforcement services [which would] include compensation 

for increased equipment or staffing needs.” In addition, the 
CACHIL DEHE BAND V. ZINKE 33

IGRA ROD adopted by reference the mitigation measures 

listed in the FEIS.

Again, Citizens concedes that the many mitigation 

measures listed, if implemented, would be adequate. 

Citizens contends however that there is no guarantee the 

measures will be implemented at all. Due to Tribal sovereign 

immunity, which insulates Enterprise from suit, the 

jurisdictions that are affected by negative externalities of the 

casino project may not be able to compel Enterprise to live 

up to its mitigation obligations. See, e.g., Michigan v. Bay 

Mills Indian Cmty., 134 S. Ct. 2024, 2028 (2014) (holding 

that tribes enjoy sovereign immunity from suit for on- and 

off-reservation activities). Citizens concludes that such 

failure to include enforcement mechanisms renders 

mitigation “illusory.”

In a matter of first impression, we find that it is within 

the expertise of the Agency to determine the likelihood 

required mitigation measures will be followed, and the 

BIA’s determination that Enterprise would fulfill its required 

mitigation measures was not arbitrary or capricious. In 

National Association of Home Builders v. Defenders of 

Wildlife, 551 U.S. 644 (2007), the Supreme Court 

summarized what a reviewing court may consider when it 

determines whether an agency decision is arbitrary and 

capricious. The Court ruled that,

[r]eview under the arbitrary and capricious 

standard is deferential; we will not vacate an 

agency’s decision unless it has relied on 

factors which Congress had not intended it to 

consider, entirely failed to consider an 

important aspect of the problem, offered an 

explanation for its decision that runs counter 

to the evidence before the agency, or is so 
34 CACHIL DEHE BAND V. ZINKE

implausible that it could not be ascribed to a 

difference in view or the product of agency 

expertise. We will, however, uphold a 

decision of less than ideal clarity if the 

agency’s path may reasonably be discerned.

Id. at 658 (internal quotation marks and citations omitted). 

Citizens does not allege that there were factors which the 

BIA considered which “Congress had not intended it to 

consider” or that an explanation was offered that “runs 

counter to the evidence before the agency.” Id. Neither is the 

BIA’s conclusion that Enterprise would engage in the 

agreed-upon mitigation “so implausible that it could not be

. . . the product of agency expertise.” Id.

Only one factor described in Defenders of Wildlife—that 

a decision may be arbitrary and capricious if the agency 

“entirely failed to consider an important aspect of the 

problem”—is arguably applicable, as mitigation is an 

important factor for the BIA to consider. However, Citizens 

does not argue that the agency “failed to consider” 

mitigation. It argues that the mitigation the agency 

considered was “illusory” because of the difficulties in 

enforcement; i.e., that the agency’s prediction that 

mitigation would take place is unreasonable. But “[t]he 

‘arbitrary and capricious’ standard is particularly deferential 

in matters implicating predictive judgments.” Stand Up For 

California!, 879 F.3d at 1188 (quoting Rural Cellular Ass’n 

v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009)). And indeed, 

Citizens has not argued that it is unlikely or “implausible” 

that the needed mitigation will take place. Citizens has not 

presented, for example, an economic argument describing 

why it is unlikely that Enterprise will fulfill its mitigation 

obligations. Absent more, we will not speculate upon 

reasons Enterprise may decide not to live up to its 
CACHIL DEHE BAND V. ZINKE 35

agreements. The Agency concluded they will, and absent 

evidence, we will not gainsay the Agency’s conclusion.

C. Challenges based on the National Environmental 

Policy Act

While NEPA establishes a “national policy [to] 

encourage productive and enjoyable harmony between man 

and his environment,” 42 U.S.C. § 4321, “NEPA itself does 

not mandate particular results,” Robertson v. Methow Valley 

Citizens Council, 490 U.S. 332, 350 (1989). “Rather, NEPA 

imposes only procedural requirements on federal agencies 

with a particular focus on requiring agencies to undertake 

analyses of the environmental impact of their proposals and 

actions.” Dep’t of Transp. v. Public Citizen ̧541 U.S. 752, 

756–57 (2004). Colusa argues that the FEIS was 

procedurally deficient in a number of ways.

1. Purpose and Need Statement

NEPA’s implementing regulations require that an EIS 

contain a statement describing the “purpose and need” of the 

project, which “shall briefly specify the underlying purpose 

and need to which the agency is responding in proposing the 

alternatives including the proposed action,” 40 C.F.R. 

§ 1502.13. Further, in the EIS, the agency must “[r]igorously 

explore and objectively evaluate all reasonable alternatives, 

and for alternatives which were eliminated from detailed 

study, briefly discuss the reasons for their having been 

eliminated.” 40 C.F.R. § 1502.14. While agencies enjoy 

“considerable discretion,” to define the purpose and need of 

a project, Friends of Se.’s Future v. Morrison, 153 F.3d 

1059, 1066 (9th Cir. 1998), in doing so “an agency cannot 

define its objectives in unreasonably narrow terms,” City of 

Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 

1155 (9th Cir. 1997). “Courts evaluate an agency’s statement 
36 CACHIL DEHE BAND V. ZINKE

of purpose under a reasonableness standard...and in 

assessing reasonableness, must consider the statutory 

context of the federal action at issue...[while] [a]gencies 

enjoy considerable discretion in defining the purpose and 

need of a project...they may not define the project’s 

objectives in terms so unreasonably narrow, that only one 

alternative would accomplish the goals of the project.” 

HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 

1230 (9th Cir. 2014) (citations and internal quotation marks 

omitted).

Colusa argues the FEIS’s “purpose and need” statement 

was “artificially limited.” It was not.

The FEIS explained that the objectives of the trust 

acquisition were to

• Restore trust land to the Tribe in an amount 

equal to the amount of land previously lost as 

a result of federal action . . . .

• Provide employment opportunities for tribal 

members and [the] non-tribal community.

• Improve the socioeconomic status of the 

Tribe by providing a new revenue source that 

could be utilized to build a strong tribal 

government, improve existing tribal housing, 

provide new tribal housing, fund a variety of 

social, governmental, administrative, 

educational, health, and welfare services to 

improve the quality of life of tribal members, 

and to provide capital for other economic 

development and investment opportunities.
CACHIL DEHE BAND V. ZINKE 37

• Allow Tribal members to become 

economically self-sufficient, thereby 

eventually removing Tribal members from 

public-assistance programs.

• Fund local governmental agencies, programs, 

and services.

• Make donations to charitable organizations 

and governmental operations.

• Effectuate the Congressional purposes set out 

in [IGRA].

The Purpose and Need Statement further states that the Tribe 

“has no sustained revenue stream” which can be used to fund 

programs for Tribal members.

The Purpose and Need Statement is quite broad. It 

describes the BIA’s intent to provide Enterprise with a 

vehicle for substantial economic development, and the 

various benefits that may accrue from economic selfsufficiency. Colusa argues that the “narrow” Purpose and 

Need Statement led to a deficient analysis of possible 

alternatives. But the BIA considered five possible 

alternatives: Alternative A, the hotel casino project that was 

ultimately accepted on the Yuba Site; Alternative B, a 

smaller casino on the Yuba Site; Alternative C, a water park 

on the Yuba Site; Alternative D, a casino on an alternate site 

in Butte County; and Alternative E, no action. The FEIS 

considered in detail the environmental and economic 

consequences of each alternative. Based on the analysis of 

the possible alternatives in the FEIS, the Interior concluded 

that the best alternative was the one selected—Alternative 
38 CACHIL DEHE BAND V. ZINKE

A, the casino/hotel project on the Yuba Site.13 The range of 

alternatives was not “illusory.”

In addition, Colusa argues that the FEIS should have 

analyzed two additional sites—1) a site in Oroville 

 13 The IGRA ROD explains why Alternative A, the Yuba hotelcasino site, was ultimately selected:

Alternatives B and C, while slightly less intensive than 

Alternative A, would require similar levels of 

mitigation for identified impacts; however, the 

economic returns would be smaller than under 

Alternative A and the more limited development is not 

the most effective use of either the land or the Tribe’s 

capital resources. The Tribe needs a development 

option that would ensure adequate capital resources to 

not only fund Tribal programs but fund mitigation 

measures for identified impacts and payment 

obligations to local jurisdictions. The reduced revenue 

anticipated from Alternatives B and C would limit the 

Tribe’s ability to fund both Tribal programs and 

mitigation measures. Additionally, without the 

development of the hotel and the rural location of the 

Butte site, Alternative D would provide further limited 

opportunities for capital development to fund Tribal 

programs. A non-gaming entertainment development 

on the Yuba [S]ite would have limited competitive 

ability to draw patrons from the greater population 

centers within Yuba County and the Highway 65 

corridor compared to the gaming alternatives. In 

addition, based on peak-hour traffic patterns for retail 

centers compared to gaming operations, Alternative C 

also would likely have equal to and in certain instances 

greater traffic impacts during peak hours than would 

Alternative A. In short, Alternative A is the alternative 

that best meets the purpose and need of the Tribe and 

the BIA while preserving the natural resources of the 

Yuba [S]ite. Therefore, Alternative A is the 

Department’s Preferred Alternative.
CACHIL DEHE BAND V. ZINKE 39

purchased by Enterprise in 2006, and 2) an unspecified site 

on federal land near Enterprise 1. However, Colusa failed to 

propose these additional sites during the comment period. 

With respect to non-obvious defaults in an EA or EIS, 

“persons challenging an agency’s compliance with NEPA 

must structure their participation so that it alerts the agency 

to the parties’ position and contentions, in order to allow the 

agency to give the issue meaningful consideration.” Dep’t of 

Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (original 

alterations, citations, and internal quotation marks omitted). 

A failure to identify “in their comments any rulemaking 

alternatives beyond those evaluated in the EA” causes those 

now objecting to an agency rulemaking to “forfeit[] any 

objection to the EA on the ground that it failed adequately to 

discuss potential alternatives to the proposed action.” Id. at 

764–65; see also N. Idaho Cmty. Action Network v. U.S. 

Dep’t of Transp., 545 F.3d 1147, 1156 & n.2 (9th Cir. 2008) 

(finding that the Department of Transportation’s highway 

construction project did not violate NEPA when the Agency 

failed to consider a tunnel alternative that was not brought to 

its attention until well after the notice and comment period 

for the EIS closed, and ruling that “any objection to the 

failure to consider that alternative has been waived”).

During the notice and comment period, Colusa did not 

tell the BIA to consider the alternatives it now proposes. 

Having failed to do so, Colusa has waived any argument that 

the failure to consider those alternatives represented a 

violation of NEPA.

2. Analysis of Data

Next, Colusa argues that the FEIS failed adequately to 

analyze the effect of the proposed project on the local 

environment, because some of the data on which the FEIS 

relied was inadequate. First, Colusa argues that the 
40 CACHIL DEHE BAND V. ZINKE

“biological data” on which the FEIS relied was “stale.” 

Second, Colusa argues that Appendix M—which analyzed 

the socio-economic impacts of the Yuba Site casino 

project—was based on insufficient data.

i. Biological Data

Colusa argues that unspecified “biological data” in the 

FEIS is outdated and cites Lands Council v. Powell, 395 F.3d 

1019, 1031 (9th Cir. 2005), a Ninth Circuit decision in which 

the court ruled that certain six-year old data on which an 

FEIS relied was “suspect.” Colusa then states broadly that 

“much of the biological information” is “several years old,” 

and “in some cases nearly ten years old.”

A review of the FEIS Appendices reveals that Colusa’s 

argument is unsupported.

The FEIS Appendices contain a variety of different 

studies, letters, and declarations from potentially impacted 

parties. For example, Appendix D contains a “Water and 

Wastewater Feasibility Study” prepared in July 2008, 

approximately two years before the publication of the FEIS, 

and Appendix H contains a “Biological Resources 

Assessment” of the site of the trust acquisition prepared in 

2007, three years before the completion of the FEIS. Colusa 

does not explain why the data in the Appendices are 

unreliable. The data in the various Appendices were 

generally compiled after 2006, two years prior to the 

publication of the DEIS, and four years prior to the 

publication of the FEIS. Colusa has pointed to no authority, 

and provided no argument, indicating that data which is four 

years old is inherently suspect. Colusa assigns a 2003 date to 

Appendix L, which contains correspondence with the State 

of California’s Office of Historic Preservation indicating

that no historic properties will be impacted. However, that 
CACHIL DEHE BAND V. ZINKE 41

Appendix contains two letters—one from 2003, and another 

from 2007, the latter of which similarly concurred that no 

historic properties would be affected.

Apart from Appendix L, only one Appendix contains 

data older than 2006: Appendix E, a 2000 declaration that a 

proposed wastewater treatment plant on the Yuba Site would 

not have a significant environmental impact. This document 

is historic and not subject to updating, and Colusa has not 

alleged that this historic document was the basis of any 

specific conclusions drawn in the FEIS. Colusa is therefore 

unable to support its generalized statement that the 

unspecified “biological data” contained in the FEIS is 

“stale.”14

ii. Economic Data

Colusa next argues that the economic data on which 

Enterprise relied was flawed. As noted above, Appendix M 

of the FEIS contains a study authored by Gaming Market 

Advisors entitled “Socio-Economic, Growth Inducing and 

Environmental Justice Impact Study.” That study described 

the likely economic impact of the proposed casino on other 

competing casinos, including that of plaintiff Colusa. Colusa 

argues that Appendix M relied on stale data and made 

improper economic assumptions. By contrast, Colusa insists 

that the Meister Declaration contained a more accurate 

accounting of the effect Enterprise’s casino would have on 

Colusa.

 14 Colusa also insists that the Appendices were “compiled prior to 

the recently ended drought.” Colusa does not state what “biological data” 

was affected by that drought, or otherwise cite to any case law indicating 

that the court should find an FEIS inadequate because of the intervention 

of specific weather events.
42 CACHIL DEHE BAND V. ZINKE

Colusa’s argument is misplaced. The Meister 

Declaration was properly struck as extra-record evidence 

which post-dated the FEIS and the IGRA and IRA RODs. It 

also was based on proprietary data which Colusa did not 

provide to the BIA during the regulatory process and which 

Colusa still has not disclosed. Colusa cannot now rely on it 

here. Pub. Citizen, 541 U.S. at 764. Further, Colusa’s 

argument regarding the allegedly missing economic data is 

connected to its claim that Colusa will experience economic 

harm as a result of the casino project. We have “consistently 

held that purely economic interests do not fall within 

NEPA’s zone of interests.” Ashley Creek Phosphate v. 

Norton, 420 F.3d 934, 940 (9th Cir. 2005).

3. Hard Look at Environmental Harm

Colusa next argues that the FEIS failed to take a “hard 

look” at the environmental impacts of the proposed action.15

Colusa describes two deficiencies: i) one regarding the air 

quality analysis in the FEIS, and ii) another regarding the 

effect of the project on certain species of fish.

Neither argument is persuasive.

 15 See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 

387 F.3d 989, 992–93 (9th Cir. 2004) (“Through the NEPA process, 

federal agencies must carefully consider detailed information concerning 

significant environmental impacts, but they are not required to do the 

impractical. Alternatively phrased, the task is to ensure that the agency 

has taken a ‘hard look’ at the potential environmental consequences of 

the proposed action.” (original alterations, internal citations, and 

quotations omitted)).
CACHIL DEHE BAND V. ZINKE 43

i. Air Quality

Colusa argued that the FEIS’s analysis of air quality was 

deficient under NEPA, because “[t]he FEIS merely asserted 

that the emissions from Enterprise’s proposed casino would 

conform to California’s state plan, but did not give any 

figures that would support that assertion.” App. Br. at 37.

Colusa also argued that “it appears that NOx emissions may 

exceed EPA’s de minimis threshold for both ozone and 

PM2.5 emissions and require offsets or other actions by DOI 

to conform to the California State Implementation Plan.”

Colusa did not elaborate on the effect of the alleged “NOx” 

emissions, or otherwise explain how the existence of such 

emissions violate the Clean Air Act, NEPA, or any other 

statute. As a result Colusa has waived this argument for 

failing to develop it. Greenwood v. FAA, 28 F.3d 971, 977 

(9th Cir. 1994) (“We review only issues which are argued 

specifically and distinctly in a party’s opening brief. We will 

not manufacture arguments for an appellant, and a bare 

assertion does not preserve a claim, particularly when, as 

here, a host of other issues are presented for review. [J]udges 

are not like pigs, hunting for truffles buried in briefs.” 

(internal citations and quotations omitted)).

Further, Colusa’s general contention that the FEIS 

provided insufficient figures is incorrect, as the FEIS 

supported its conclusion that the emissions from Enterprise’s 

proposed casino would not violate the Clean Air Act or any 

California regulation. According to 40 C.F.R. 

§ 93.153(b)(1), the de minimis threshold for emissions of 

NOx is 100 tons per year. The FEIS describes mitigation 

measures that will reduce emissions of NOx to below 

25 pounds per day, or 4.56 tons per year, well below the 

regulatory threshold.
44 CACHIL DEHE BAND V. ZINKE

ii. Migratory Fish

Colusa next argues that the FEIS ignores potential harm 

to six fish species of concern, five of which are listed under 

the Endangered Species Act. Colusa argues that the FEIS 

should have discussed whether or not the canals near the 

Yuba parcel are “screened” in order to protect the migratory 

fish. Colusa does not proffer any evidence that there is an 

actual danger to these species of fish, or otherwise describe 

a likely effect of the casino project on the fish. The FEIS 

states that the fish species will not live in or near the project 

site.16 Colusa does not provide any evidence or argument to 

undermine the FEIS’s statement.

4. Oversight of the FEIS

40 C.F.R. § 1506.5(c) states that an EIS “prepared 

pursuant to the requirements of NEPA shall be prepared 

directly by or by a contractor selected by the lead agency

. . . . It is the intent of these regulations that the contractor be 

chosen solely by the lead agency . . . .”

Colusa argues that the BIA failed to exercise “sufficient 

independent oversight over [the] preparation of the FEIS,”

and insists that Enterprise, rather than the BIA, “chose” AES 

as its contractor for the creation of the EIS. Colusa also 

argues that AES had an impermissible “financial interest” in 

the outcome of the project.

 16 The FEIS states that the fish “do not have the potential to occur 

within the study area, as the only aquatic habitats within the study area 

are agricultural irrigation ditches and canals or receive water supply from 

these ditches or canals. The water level fluctuates within these features 

according to crop demand and is not sufficient to support these species.”
CACHIL DEHE BAND V. ZINKE 45

First, Colusa provides no evidence that the BIA did not 

make an independent choice to contract with AES. As noted 

above, Enterprise contracted with AES under the BIA’s 

supervision to create a draft EA, a document which the BIA 

evaluated prior to deciding whether to proceed with an EIS. 

Having decided to create an EIS, the BIA then entered into 

a Professional Services Third-Party Agreement with AES. 

The Professional Services Third-Party Agreement states that 

“[t]his Agreement constitutes the required disclosure 

statement and the BIA’s selection of AES as the primary EIS 

contractor.” Colusa points to nothing in the Agreement, or to 

anything else in the record, which calls into question the 

BIA’s representation that it chose to contract with AES for 

the creation of the EIS.

Second, Colusa has not shown an impermissible conflict 

of interest. 40 C.F.R. § 1506.5(c) states that a contractor 

which prepares an EIS “shall execute a disclosure statement 

prepared by the lead agency . . . specifying that they have no 

financial or other interest in the outcome of the project.” 

AES executed such a disclosure statement. However, Colusa 

argues that AES in reality had an impermissible financial 

interest in the outcome of the project: the same Agreement 

containing AES’s disclosure statement states that “AES . . .

will supply environmental consulting services to prepare the 

environmental documentation and assist with obtaining 

permit approvals necessary to construct the project.” Colusa 

reasons that AES will aid in helping obtain the “permit 

approvals necessary to construct the project” only after the 

approval of the FEIS. In other words, AES has a “financial

. . . interest in the outcome of the project” per 40 C.F.R. 

§ 1506.5(c).

However, Colusa fails to allege that any financial stake 

AES has in aiding with permit approvals is significant. 
46 CACHIL DEHE BAND V. ZINKE

Moreover, the agency made a factual determination that 

there was no conflict of interest, and absent proof that this 

finding lacks substantial evidence to support it, the court 

should defer to the agency’s factual determination. Markair, 

Inc. v. Civil Aeronautics Bd., 744 F.2d 1383, 1385 (9th Cir. 

1984).

Furthermore, a contractor’s technical conflict of interest 

does not lead to the automatic invalidation of an FEIS or 

ROD. Rather, the Court “can evaluate the oversight that the 

agency provided to the [EIS] process as a factual matter and 

make a determination upholding the [EIS].” Ass’ns Working 

for Aurora’s Residential Env’t v. Colo. Dep’t of Transp., 

153 F.3d 1122, 1129 (10th Cir. 1998).

Colusa argues that three pieces of evidence demonstrate 

that the BIA failed to exercise sufficient independent 

oversight over the project. First, Colusa cites to “[Interior’s] 

failure to require a sufficiently broad analysis of 

alternatives.” But, as we have already found, the alternatives 

selected were facially reasonable, and Colusa provides no 

specific argument explaining why they are not. Second, 

Colusa argues that the Interior’s “acceptance of pure 

guesswork as to the impacts on Colusa” of the proposed 

project shows a lack of supervision over the project.

However, Colusa’s alleged experience of a purely economic 

harm is not cognizable under NEPA, so it is unclear how, 

under NEPA, a failure properly to analyze that harm is 

evidence of improper supervision of the NEPA process. In 

any event, Colusa’s contention that the economic harm 

analysis was “based on pure guesswork” is inaccurate: 

Appendix M to the FEIS contains a rigorous economic 

analysis. Finally, Colusa argues that the failure to require 

AES to make a certification “under penalty of perjury” 

demonstrates a failure of oversight. No such requirement for 
CACHIL DEHE BAND V. ZINKE 47

a statement under penalty of perjury exists in the regulations. 

The failure to include such a non-required statement proves 

nothing.

Colusa has not presented any evidence that the BIA 

failed to engage in adequate independent oversight over the 

preparation of either the DEIS or the FEIS, or that the 

“consulting services” AES may perform are in any way 

significant. As a result, Colusa is incorrect that a technical 

violation of the conflict of interest provision—if such a 

violation occurred—mandates the withdrawal of the FEIS 

and invalidation of the decade-plus long regulatory process. 

If a violation is but “trivial,” it does “not give rise to any 

independent cause of action.” 40 C.F.R. § 1500.3.

V.

For the above-stated reasons, we AFFIRM the decision 

of the district court.