MEMORANDUM TO THE COMMISSION

DATE: January 22, 2015

FROM: Miles Janssen, Staff Attorney

THROUGH: Eric Shepard, Acting General Counsel

CC: Christinia Thomas, Acting Chief of Staff

RE: Options for Categorical Exclusion (CATEX) 

Background

The NIGC has previously determined that approving a management contract for the 

operation of gaming under IGRA is a major Federal action that requires NEPA review. NIGC is 

seeking to obtain a Categorical Exclusion (CATEX) for that type of action. 

In December 2009, the NIGC published a NEPA policies and procedures draft manual 

that identified three categories of CATEXs. They included: 1) Administrative and Routine Office 

Activities, 2) Regulation, Monitoring, and Oversight of Indian Gaming Activities, and 3) 

Management Contract and Agreement Review Activities. However, a final copy of the NEPA 

manual was never adopted. In May 2012, the NIGC established a protocol for two of the three 

CATEXs previously identified in the draft NEPA manual. Specifically, the protocol covered: 1) 

Administrative and Routine Office Activities and 2) Regulation, Monitoring, and Oversight of 

Indian Gaming Activities. 

On January 9, 2015, the NIGC met with Horst Greczmiel, Associate Director for NEPA 

Oversight, to discuss the process for establishing a protocol for the final CATEX category 

identified in the draft NEPA manual: 3) Management Contract and Agreement Review 

Activities. After explaining the action taken in approving a management contract, Mr. Greczmiel 

suggested it was possible that a new CATEX may not be needed. Rather, the management 

contract approval process may fall within the previously established CATEX for the Regulation, 

Monitoring, and Oversight of Indian Gaming Activities. To accomplish our goal, NIGC would 

only need to draft a memo explaining the legal rational and basis for such a determination. 

Mr. Greczmiel also stated that NIGC needs to finalize a NEPA policy and procedures 

manual. As of now, the NIGC contracts with the BIA to conduct required NEPA review. BIA is 

required to follow their policies and procedures since NIGC does not have established policies 
Memo to the Commission

Re: CATEX Options

January 22, 2015

Page 2 of 3

and procedures. It is possible that BIA policies and procedures are overly broad for the NEPA 

review NIGC requires. If BIA fails to follow their policies and procedures while completing 

NEPA work on behalf of NIGC, there is a risk of litigation against NIGC. Finally, the NIGC is 

unable to contract with anyone else for NEPA review if NEPA policies and procedures are not 

established. 

Analysis 

It is unlikely that the approval of a management contract can be included as part of the 

CATEX for the Regulation, Monitoring, and Oversight of Indian Gaming Activities. The 2012 

CATEX for Regulation, Monitoring, and Oversight of Indian Gaming Activities specifically 

covers: 

A. Promulgation or publication of regulations, procedures, manuals, and guidance 

documents necessary for NICG's oversight of Indian Gaming Facilities and intra-agency 

operations at existing facilitates.

B. Support of compliance and enforcement functions by conducting compliance training 

for tribal gaming regulators and managers in classrooms, meeting rooms, gaming 

facilities, or via the Internet.

C. Preparing and issuing subpoenas, holding hearings, and taking depositions for 

informational gathering purposes, not associated with administrative enforcement 

actions.

The three subcategories appear to be narrowly tailored to specifically address certain 

activities. The activities listed cannot be read to involve the approval of management contracts. 

Thus, it does not appear that the approval of management contracts can fall under this CATEX. 

It is also important to note that the 2012 notice establishing the protocol for the two CATEXs 

specifically reference the 2009 draft manual and three CATEXs the Agency had considered 

adopting. The third specifically addressed the approval of management contracts. It would be 

difficult for NIGC to now argue that although the Commission clearly never intended the 

adopted CATEXs to include approval of management contracts, as evidenced by the third, 

unadopted CATEX; it nonetheless is now doing so. Such a decision by the Commission would 

make future contract approvals more susceptible to NEPA challenges.

Moreover, the NIGC has already proposed a CATEX for management contract approvals, for 

which it has sought public comment and consulted with Tribes on several occasions. Adoption of 

this CATEX would not make the agency substantially more susceptible to litigation than shoehorning management contract approval into the previously adopted exclusion. Also, any 

litigation that does result from adopting a new CATEX would be easier to defend. 

The NIGC may follow Mr. Greczmiel’s suggestion and adopt a NEPA policies and 

procedures manual that include the previously proposed CATEX for the approval of 
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Re: CATEX Options

January 22, 2015

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management contracts. This option allows NIGC to accomplish two goals: 1) establishing a 

CATEX for the approval of management contracts and 2) ending future uncertainty regarding 

NEPA review. Specifically, NIGC would have defined categories for what actions require NEPA 

review and as well as the process for conducting such review. Also, the NIGC would be free to 

contract with groups outside the government to conduct NEPA review in the future.

Decision Options

1. Adopt the third, previously published and discussed CATEX for the approval of 

management contracts. 

2. Adopt a newly drafted CATEX for the approval of management contracts.

3. Adopt a NEPA policies and procedures manual that includes a specific CATEX for the 

approval of management contracts. 

4. Draft a memo that specifies the legal basis for considering the approval of management 

contracts to fall within the previously established CATEX for Regulation, Monitoring, 

and Oversight of Indian Gaming Activities

Recommendation

Option 3. This accomplishes the goal of establishing a CATEX for the approval of 

management contracts while ending future uncertainty regarding NEPA review requirements. It 

is important to note that this option will take longer than Option 1, due to the fact that OGC will 

need to conduct a full review of the 2009 draft manual.