FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMUL ACTION COMMITTEE; JAMUL

COMMUNITY CHURCH; DARLA

KASMEDO; PAUL SCRIPPS; GLEN

REVELL; WILLIAM HENDRIX,

Plaintiffs-Appellants,

v.

JONODEV CHAUDHURI, Chairwoman

of the National Indian Gaming

Commission; SALLY JEWELL,

Secretary of the U.S. Department of

the Interior; KEVIN K. WASHBURN,

Esquire, Assistant Secretary - Indian

Affairs, U.S. Department of the

Interior; AMY DUTSCHKE, Regional

Director, Bureau of Indian Affairs;

PAULA L. HART, Director of the

Office of Inidan Gaming, Bureau of

Indian Affairs; JOHN RYDZIK, Chief,

Division of Environmental, Cultural

Resources Management and Safety

of the Bureau of Indian Affairs;

DAWN HOULE, Chief of Staff for the

National Indian Gaming

Commission; U.S. DEPARTMENT OF

THE INTERIOR; NATIONAL INDIAN

GAMING COMMISSION; RAYMOND

HUNTER, Chairman, Jamul Indian

No. 15-16021

D.C. No. 

2:13-cv-01920-

KJM-KJN

OPINION
2 JAC V. CHAUDHURI

Village; CHARLENE CHAMBERLAIN;

ROBERT MESA; RICHARD TELLOW;

JULIA LOTTA; PENN NATIONAL, INC.;

SAN DIEGO GAMING VILLAGE, LLC;

C.W. DRIVER, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted December 7, 2015

San Francisco, California

Filed June 9, 2016

Before: Alex Kozinski, Jay S. Bybee,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
JAC V. CHAUDHURI 3

SUMMARY*

Indian Gaming / Environmental Law

The panel affirmed the district court’s denial of a petition

for a writ of mandamus under the Administrative Procedure

Act of a group of tribal members and organizations, alleging

that the National Indian Gaming Commission violated the

National Environmental Policy Act when it approved the

Jamul Indian Village’s gaming ordinance for a casino in

Jamul, California, without first conducting a NEPA

environmental review.

The district court held that the Gaming Commission’s

approval of the 2013 gaming ordinance was not “major

federal action” within the meaning of NEPA requiring the

preparation of an environmental impact statement.

Affirming on different grounds than the district court, the

panel held that even if the GamingCommission’s approval of

the gaming ordinance was a major federal action within the

meaning of NEPA, the GamingCommission was not required

to prepare an environmental impact statement because there

was an irreconcilable statutory conflict between NEPA and

the Indian Gaming Regulatory Act, pursuant to San Luis &

Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 648 (9th

Cir. 2014) (holding that an agency need not adhere to NEPA

“where doing so ‘would create an irreconcilable and

fundamental conflict’ with the substantive statute at issue”).

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

been prepared by court staff for the convenience of the reader.
4 JAC V. CHAUDHURI

COUNSEL

Kenneth Robert Williams (argued), Sacramento, California,

for Plaintiffs-Appellants.

Elizabeth Ann Peterson (argued), William B. Lazarus, Judith

Rabinowitz, and Barbara M.R. Marvin, Attorneys; John C.

Cruden, Assistant Attorney General, Environment and

Natural Resources Division; United States Department of

Justice, Washington, D.C.; Rebecca Ross, Office of the

Solicitor, United States Department of the Interior,

Washington, D.C.; John Hay, Office of the General Counsel,

National Indian Gaming Commission, Washington, D.C.; for

Federal Defendants-Appellees.

Frank Lawrence (argued), Law Office of Frank Lawrence,

Grass Valley, California, for Tribally-Related DefendantsAppellees.

Patrick D. Webb (argued), Webb & Carey, San Diego,

California, for Amici Curiae Walter Rosales and Karen

Toggery.

OPINION

CHRISTEN, Circuit Judge:

This case is about an Indian gaming casino in Jamul,

California, a rural community close to San Diego, California. 

The Jamul Indian Village, a federally recognized Indian tribe

and a non-party to this suit (“the Tribe”), is building a casino

in Jamul. A sub-group of tribal members and organizations,

including the Jamul Action Committee, the Jamul
JAC V. CHAUDHURI 5

Community Church, and four residents of rural Jamul

(collectively “JAC”), opposes the casino. This lawsuit is

JAC’s most recent effort to stop its construction. See, e.g.,

Rosales v. United States, 275 F. App’x 1 (D.C. Cir. 2008). 

JAC contends that the National Indian Gaming Commission

(“NIGC”) violated the National Environmental Policy Act

(“NEPA”) when it approved the Tribe’s gaming ordinance

(“GO”) without first conducting a NEPA environmental

review. JAC petitioned the district court for a writ of

mandamus under the Administrative Procedure Act (“APA”),

arguing that the NEPA environmental review was “agency

action unlawfully withheld.” 5 U.S.C. § 706(1). The district

court denied relief. We have jurisdiction under 28 U.S.C.

§ 1292(a)(1), and we affirm.1

I.

A.

This appeal turns on the interplay between two federal

statutes: the Indian Gaming Regulatory Act (“IGRA”),

25 U.S.C. §§ 2701–2721, and NEPA, 42 U.S.C.

§§ 4321–4370h. 

Congress enacted IGRA to regulate gaming on Indian

lands. Big Lagoon Rancheria v. California, 789 F.3d 947,

949 (9th Cir. 2015) (en banc). IGRA divides gaming

activities into “classes” based on the types of games involved. 

Class III gaming (the kind at issue here) “often involves ‘the

types of high-stakes games usually associated with Nevada-

 

1

 In this opinion we address only JAC’s contention that NIGC violated

NEPA when it approved the GO. We address JAC’s remaining arguments

in a memorandum disposition filed contemporaneously with this opinion.
6 JAC V. CHAUDHURI

style gambling,’” id. (citation omitted), such as banking card

games and slot machines. 25 U.S.C. § 2703(8). IGRA

permits class III gaming only if it is “conducted in

conformance with a Tribal–State compact entered into by the

Indian tribe and the State,” id. § 2710(d)(1)(C), and approved

by the Secretary of the Interior, id. § 2710(d)(3)(B).

IGRA requires Indian tribes to receive NIGC’s approval

of a gaming ordinance before engaging in class III gaming on

Indian land. N. Cty. Cmty. All., Inc. v. Salazar, 573 F.3d 738,

741 (9th Cir. 2009). A gaming ordinance is a resolution

adopted by the tribe that describes how the tribe will operate

its gambling facilities. 25 U.S.C. § 2710(b)(2)(B). NIGC

“shall” approve a gaming ordinance that meets IGRA’s

requirements “by not later than the date that is 90 days after

the date on which [the ordinance] is submitted to the

Chairman.” Id. § 2710(e). If NIGC has not acted on the

proposed ordinance by the end of the ninety-day period, the

gaming ordinance “shall be considered to have been approved

by the Chairman, but only to the extent such ordinance or

resolution is consistent with the provisions of” IGRA. Id.; AT

& T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 906 n.9

(9th Cir. 2002) (noting that NIGC’s tacit approval of a

proposed gaming ordinance is final agency action). 

NEPA “is our basic national charter for protection of the

environment.” 40 C.F.R. § 1500.1(a). NEPA imposes on

federal agencies certain “‘action-forcing’ procedures that

require that agencies take a ‘hard look’ at environmental

consequences” of major federal action. Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350 (1989); see also

42 U.S.C. § 4332. Those procedures are designed to “insure

[sic] that environmental information is available to public

officials and citizens before decisions are made and before
JAC V. CHAUDHURI 7

actions are taken,” 40 C.F.R. § 1500.1(b), and to “help public

officials make decisions that are based on understanding of

environmental consequences,” id. § 1500.1(c). Preeminent

among these “action-forcing procedures” is NEPA’s

requirement that federal agencies contemplating “major

Federal action[]” prepare an environmental impact statement

(“EIS”) analyzing that action. See 42 U.S.C. § 4332;

40 C.F.R. § 1502.3. “NEPA directs that, ‘to the fullest extent

possible . . . public laws of the United States shall be

interpreted and administered in accordance with [it].’” 

Westlands Water Dist. v. Nat. Res. Def. Council, 43 F.3d 457,

460 (9th Cir. 1994) (quoting 42 U.S.C. § 4332 (1988)). 

Therefore, NEPA applies “unless the existing law applicable

to such agency’s operations expressly prohibits or makes full

compliance with one of the directives impossible.” Jones v.

Gordon, 792 F.2d 821, 826 (9th Cir. 1986) (quoting

115 Cong. Rec. 39703 (1969)). 

B.

The Jamul Indian Village casino has been in the works for

more than fifteen years. The Tribe first enacted a gaming

ordinance for class III, casino-style gaming in Jamul in the

late 1990s, and NIGC published notice of approval of the

ordinance in the Federal Register on January 29, 1999. 

64 Fed. Reg. 4,722, 4,723 (Jan. 29, 1999). The next year, the

Tribe entered into a compact with the State of California to

conduct class III gaming. 65 Fed. Reg. 31,189 (May 16,

2000) (Secretary of the Interior’s notice of approval of the

compact). The Tribe initially planned to build parts of the

casino on non-tribal lands that it requested from the Secretary

of the Interior in the form of a trust-transfer under the Indian

Regulatory Act, 25 U.S.C. § 461; see 67 Fed. Reg. 15,582

(Apr. 2, 2002), but it ultimately redesigned the proposed
8 JAC V. CHAUDHURI

project to eliminate the need for the trust land, 78 Fed. Reg.

21,398, 21,399 (Apr. 10, 2013). The Tribe sought and

obtained NIGC’s approval of a revised gaming ordinance for

the redesigned project in 2013. Site preparation for the

casino began early in 2014, and as of the time we held oral

argument, construction was underway.

C.

In September 2013, plaintiffs sued NIGC, its chair, and

several other federal actors (“Federal Defendants”); tribal

officials in their individual capacities (“Tribally-related

defendants”); and several private companies alleging, inter

alia, that defendants failed to comply with NEPA when

evaluating the Jamul casino. In January 2015, plaintiffs filed

in the district court a motion for a writ of mandamus under

5 U.S.C. § 706(1). That part of the APA enables federal

courts to “compel agency action unlawfully withheld or

unreasonably delayed.” Id. In their motion, plaintiffs

requested “a writ of mandate to the Federal Defendants

directing them to comply with NEPA and finalize and

circulate a draft [supplemental environmental impact

statement] SEIS while there is still time to avoid the

consequences of the Defendants’ non-compliance with

NEPA.” The district court denied relief, holding, in relevant

part, that NIGC’s approval of the 2013 gaming ordinance was

not “major federal action” within the meaning of NEPA. 

40 C.F.R. § 1508.18 (defining “major federal action”).

II.

We review de novo the district court’s decision on issues

of law, including whether NEPA applies to the agency action

at issue here. See San Luis & Delta-Mendota Water Auth. v.
JAC V. CHAUDHURI 9

Locke, 776 F.3d 971, 991 (9th Cir. 2014). We review JAC’s

petition for a writ of mandamus under the “arbitrary or

capricious” standard of review. Dep’t of Transp. v. Pub.

Citizen, 541 U.S. 752, 763 (2004) (“An agency’s decision not

to prepare an EIS can be set aside only upon a showing that

it was ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’”).

III.

On appeal, JAC argues that NEPA required NIGC to

conduct an environmental review before it approved the

Tribe’s 2013 gaming ordinance, and NIGC’s failure to do so

means that it “unlawfully withheld . . . agency action.” 

5 U.S.C. § 706(1); Norton v. S. Utah Wilderness Alliance,

542 U.S. 55, 64 (2004) (“[A] claim under § 706(1) can

proceed only where a plaintiff asserts that an agency failed to

take a discrete agency action that it is required to take.”). We

disagree. Even if, as appellants argue, NIGC’s approval of

the gaming ordinance was a “major Federal action[]” within

the meaning of NEPA, 42 U.S.C. § 4332, NIGC was not

required to prepare an EIS because there is an irreconcilable

statutory conflict between NEPA and IGRA.

The federal respondents contend (and the district court

concluded) that our decision in North County Community

Alliance v. Salazar, 573 F.3d 738, 740 (9th Cir. 2009),

conclusively resolves the NEPA issues presented here. We

respectfully disagree. The plaintiffs in North County sued

NIGC after the Commissioner approved a tribal gaming

ordinance without first determining whether the tribe’s

proposed casino was on “Indian lands,” as defined by IGRA. 

The crux of the plaintiffs’ complaint was that the agency

violated IGRA because it failed to make an “Indian lands
10 JAC V. CHAUDHURI

determination.” Id. The North County plaintiffs also argued

that NIGC violated NEPA, a challenge we resolved as

follows:

The Alliance claims that NIGC’s failure to

make an Indian lands determination

constituted a “major Federal action[]” under

42 U.S.C. § 4332(C) requiring environmental

review, including preparation of an EIS, under

NEPA. We disagree. There has been no

major federal action in this case. Therefore,

the Appellees had no obligation under NEPA.

Id. at 749. North County does not settle the NEPA issue

presented here because we limited our NEPA analysis in

North County to the issue presented: Whether “NIGC’s

failure to make an Indian lands determination constituted a

‘major Federal action[]’ under 42 U.S.C. § 4332(C) requiring

environmental review, including preparation of an EIS, under

NEPA.” Id.; see also Appellant’s Reply Brief at *15 n.7,

North County, 573 F.3d at 738 (No. 07-36048), 2007 WL

5445598 (the Indian lands determination would have

“provide[d] the ‘major federal action’ required to trigger

NEPA”). North County did not address whether NEPA

requires NIGC to conduct an environmental review before

approving a gaming ordinance. We have not had occasion to

address this issue in our prior decisions, but we turn to it now.

Our court has recognized two circumstances where an

agency need not complete an EIS even in the presence of

major federal action and “despite an absence of express

statutory exemption.” San Luis & Delta-Mendota Water

Auth. v. Jewell, 747 F.3d 581, 648 (9th Cir. 2014). First, an

agency need not adhere to NEPA “where doing so ‘would
JAC V. CHAUDHURI 11

create an irreconcilable and fundamental conflict’ with the

substantive statute at issue.” Id. Second, in limited instances,

a substantive statute “displaces” NEPA’s procedural

requirements. Id. This case falls into the first category. 

The Supreme Court first considered the presence of “an

irreconcilable and fundamental conflict” in Flint Ridge

Development Co. v. Scenic Rivers Ass’n of Oklahoma. 

426 U.S. 776 (1976). Flint Ridge involved a statute requiring

developers of subdivisions to prepare a statement about their

proposed project before marketing homes to the public. Id.

at 779–80. Developers were required to file their statement

with the U.S. Department of Housing and Urban

Development (“HUD”). The statute provided that a

developer’s statement would “become[] effective

automatically on the 30th day after filing, or on such earlier

date as the [HUD] Secretary may determine.” Id. at 781. 

Defendants proposed construction of a subdivision near the

Illinois River in Oklahoma. While the paperwork was

pending, plaintiffs petitioned HUD to prepare an EIS to study

the impact of the subdivision on the river. HUD rejected

plaintiffs’ request, and they sought judicial review. The

Supreme Court upheld the agency’s action, concluding that

there was an irreconcilable conflict between the HUD

statute’s thirty day timeline and NEPA: “It is inconceivable

that an environmental impact statement could, in 30 days, be

drafted, circulated, commented upon, and then reviewed and

revised in light of the comments.” Id. at 788–89. Thus,

“even if the Secretary’s action in this case constituted major

federal action significantly affecting the quality of the human

environment so that an environmental impact statement

would ordinarily be required, there would be a clear and

fundamental conflict of statutory duty” between the HUD

statute and NEPA, such that “NEPA’s impact statement
12 JAC V. CHAUDHURI

requirement is inapplicable.” Id. at 791. Under Flint Ridge,

“[a]n irreconcilable conflict is created if a statute mandates a

fixed time period for implementation and this time period is

too short to allow the agency to comply with NEPA.” 

Westlands Water Dist., 43 F.3d at 460. 

Our court has been reticent to find a statutory conflict

between NEPA and other provisions of the U.S. Code lest

Flint Ridge’s exception undermine Congress’s intent that

NEPA apply broadly. See, e.g., Forelaws on Board v.

Johnson, 743 F.2d 677, 683 (9th Cir. 1985) (“NEPA’s

legislative history reflects Congress’s concern that agencies

might attempt to avoid any compliance with NEPA by

narrowly construing other statutory directives to create a

conflict with NEPA.”), as amended. Thus, we have held that

a short time frame for agency action does not create a

statutory conflict under Flint Ridge when an agency, not

Congress, imposes a deadline. Id. at 683–85. There is

likewise no “irreconcilable conflict” under Flint Ridge when

the triggering act for a short statutory time table “is within the

control of the” agency. Jones, 792 F.2d at 826; see also id.

(declining to find a statutory conflict between NEPA and the

Marine Mammal Protection Act’s permit approval timeline

because “the triggering act for the statutory time table, the

publication of notice of a permit application, is within the

control” of the agency, and the agency “could withhold

publication long enough to comply with any NEPA

requirement for preparation of an” EIS). By contrast, an

irreconcilable conflict does exist where “Congress did not

give the Secretary discretion over when he may carry out his

duties,” Westlands Water Dist., 43 F.3d at 460, and the statute

imposing the time table provides that the proposed action is

approved “unless the [agency] acts before the expiration of

the statutory period,” Vill. of Barrington, Ill. v. Surface
JAC V. CHAUDHURI 13

Transp. Bd., 636 F.3d 650, 662 (D.C. Cir. 2011)

(distinguishing Flint Ridge on this ground); see also Flint

Ridge, 426 U.S. at 781.

Here, like in Flint Ridge and Westlands Water District,

Congress imposed an unyielding statutory deadline for

agency action. IGRA requires NIGC to approve a gaming

ordinance or resolution “by not later than the date that is 90

days after the date on which any tribal gaming ordinance or

resolution is submitted to the Chairman . . . if it meets the

requirements of this section.” 25 U.S.C. § 2710(e). Courts

routinely interpret this provision of IGRA as creating a

mandatory deadline for agency action. See, e.g., Coeur

d’Alene Tribe, 295 F.3d at 906 n.9 (an agency’s tacit approval

of a gaming ordinance under § 2710(e) is a final agency

action for purposes of the APA); Massachusetts v.

AQUINNAH, No. 13-13286-FDS, 2015 WL 7185436, at *6

n.4 (D. Mass. Nov. 13, 2015) (“A gaming ordinance is

automatically approved by NIGC, by operation of law, if it

does not act on the ordinance within 90 days.”); cf. Gottlieb

v. Peña, 41 F.3d 730, 731 (D.C. Cir. 1994) (contrasting

§ 2710(e), a mandatory deadline for agency action, with the

“ten-month period for final agency action on applications for

correction of Coast Guard records,” a discretionary deadline

for agency action). The deadline at issue here was imposed

by Congress, not NIGC. See 25 U.S.C. § 2710(e). And,

unlike in Jones, the act triggering IGRA’s timetable is not

within NIGC’s control because it is a tribe’s submission of a

proposed gaming ordinance to the agency that triggers the

statutory countdown. Id.; cf. Jones, 792 F.2d at 826. Finally,

like in Flint Ridge, a gaming ordinance or resolution

automatically takes effect after ninety days with or without

action by the Commissioner. 25 U.S.C. § 2710(e) (“Any such

ordinance or resolution not acted upon at the end of that
14 JAC V. CHAUDHURI

90-day period shall be considered to have been approved by

the Chairman . . . .”).

There is no question that it would be impossible for NIGC

to prepare an EIS in the ninety days it has to approve a

gaming ordinance. The Supreme Court in Flint Ridge

recognized that 

[d]raft environmental impact statements on

simple projects prepared by experienced

personnel take some three to five months to

complete, at least in the Department of the

Interior. . . . Once a draft statement is

prepared, [Council onEnvironmental Quality]

guidelines provide that ‘[t]o the maximum

extent practicable’ no action should be taken

sooner than 90 days after a draft

environmental impact statement (and 30 days

after the final statement) has been made

available for comment.

Flint Ridge, 426 U.S. at 789 n.10. In keeping with the

Supreme Court’s analysis, we have previously assumed that

it takes an agency at least 360 days to prepare an EIS. See

Jones, 792 F.2d at 825.

NEPA’s regulations confirm that an agency cannot

prepare an EIS in ninety days. Before publishing its final EIS

on a proposed project, an agency must: (1) publish in the

Federal Register a notice of intent to prepare an EIS,

40 C.F.R. §§ 1508.22, 1501.7; (2) gather input on the scope

of issues the EIS should address (this is called scoping), id.

§ 1501.7; (3) prepare a draft EIS and publish that document

in the Federal Register, id. §§ 1502.9, 1506.10(a); (4) provide
JAC V. CHAUDHURI 15

the public an opportunity to comment on the draft EIS and

respond to those comments, id. § 1503.4; (5) prepare the final

EIS, id. § 1502.9; and (6) prepare and issue a record of

decision, id. § 1505.2. The regulations make it impossible for

an agency to complete these steps within ninety days. NIGC

has previously given the public thirty days to comment on the

scope and implementation of a proposed EIS. See 78 Fed.

Reg. 21,398 (Apr. 10, 2013). An agency must provide fortyfive days for public comment on a draft EIS, 40 C.F.R.

§ 1506.10(c), and it must wait at least thirty days after

publishing the final EIS before finalizing the proposed action,

id. § 1506.10(b)(2). In all cases, “[n]o decision on the

proposed action shall be made or recorded . . . until . . .

[n]inety (90) days after publication of the” notice of the draft

EIS in the Federal Register. Id. § 1506.10(b)(1). So,

assuming it takes no time to respond to the public’s view on

scope and implementation, prepare a draft EIS, and

incorporate public comments into the final EIS, the shortest

time frame in which NIGC could prepare an EIS would be

one hundred and twenty days. Plainly, there is an

irreconcilable statutory conflict between the mandatory

agency deadline in 25 U.S.C. § 2710(e) and NEPA. 

This conclusion is consistent with NIGC’s informal

analysis of its own NEPA obligations. NIGC published a

draft NEPA Handbook in 2009 that says: “In some cases, the

NIGC’s statutory requirements are inconsistent with NEPA. 

The following NIGC action(s) have been determined to fit

into this category: . . . Approval of Tribal gaming ordinances

or resolutions as provided in § 2710 of the IGRA, which must

be completed within ninety (90) days of submission to the

NIGC.” 74 Fed. Reg. 63,765, 63,769 (Dec. 4, 2009).
16 JAC V. CHAUDHURI

Contrary to JAC’s arguments, NIGC’s approval of the

Tribe’s gaming ordinance without conducting a NEPA

environmental review did not violate NIGC’s obligations

under NEPA because “where a clear and unavoidable conflict

in statutory authority exists, NEPA must give way.” Flint

Ridge, 426 U.S. at 788. Though the district court relied on

other grounds, we affirm its denial of plaintiff’s requested

writ of mandamus.

CONCLUSION

The decision of the district court is

AFFIRMED.