Fort Sill Apache Tribe of Oklahoma FDO-05-06

Final Decision and Order

IN THE MATTER OF )

NOV-05-06

)

) OHA Docket No. NIGC 2005-2

)

Fort Sill Apache Tribe of

Oklahoma ) Final Decision and Order

On appeal to the National Indian Gaming Commission (“Commission”) from a notice of 

violation issued by the Chairman of the Commission to the Fort Sill Apache Tribe of Oklahoma 

(the “Tribe”) for the untimely ling of quarterly fee statements and payments for the fourth 

quarter 2004 in violation of 25 C.F.R. § 514.1(c)(2).

Appearances

 Robert Prince, Esq., for Respondent Fort Sill Apache

Tribe of Oklahoma.

 Andrea H. Lord, Esq., and Katherine L. Zebell, Esq.,

 for the National Indian Gaming Commission Chairman.

Presiding Official 

 Candida S. Steel, Ofce of Hearings and Appeals, U.S.

 Department of the Interior.

FINAL DECISION AND ORDER

 After careful and complete review of the agency record, pleadings led by both parties, 

and the Presiding Ofcial’s recommended decision, the Commission nds and orders that:

1. 25 C.F.R. § 514.1(c)(2) requires each Indian gaming

operation to submit quarterly fee statements and payments to the Commission no 

later than March 31, June 30, September 30, and December 31 of each calendar year.
2. The Tribe owns the Fort Sill Apache Casino in Lawton,

Oklahoma.

3. The Tribe operated its casino in 2003 and 2004.

4. The Tribe’s fourth quarter fee statement and payment

for calendar year 2004 were due at the Commission on December 31, 2004, but were 

sent no earlier than January 3, 2005, and received by the Commission on January 10, 

2005.

5. The Presiding Ofcial’s recommended decision that

considerations of equity and fairness militate against upholding the notice of 

violation for an undisputed violation of Commission regulations is both contrary to 

law and an impermissible substitution of her judgment for the Chairman’s discretion 

in matters of enforcement and is therefore reversed.

6. The Presiding Ofcial’s recommended decision that this

late ling is excused by the failure of actual notice of the ling requirements by the 

Chairman to the Tribal leadership is contrary to law and thus reversed.

7. The Presiding Ofcial’s recommended decision that the

Chairman is estopped from bringing a notice of violation because of various 

communications between the Tribe and the Commission staff is contrary to law and 

thus reversed.

8. The Chairman met his burden of proof.

9. Notice of violation 05-06 is upheld.

STATUTORY, PROCEDURAL, AND FACTUAL BACKGROUND

 In the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701 et seq., Congress 

deemed the establishment of an independent Federal regulatory authority for gaming on Indian 

lands, together with the establishment of Federal standards for gaming on Indian lands, 

“necessary to meet congressional concerns regarding gaming and to protect such gaming as a 

means of generating tribal revenue.” 25 U.S.C. § 2702(3). Congress therefore created the 

National Indian Gaming Commission and gave it oversight regulatory authority for gaming on 
Indian lands. 25 U.S.C. §§ 2702(3), 2704(a). As part of that oversight authority, Congress gave 

to the Chairman the authority to levy and collect civil nes against a Tribe “for any violation of 

any provision of [IGRA], any regulation prescribed by the Commission pursuant to [IGRA], or 

tribal regulations, ordinances, or resolutions requiring the Chairman’s approval.” 25 U.S.C. 

§ 2713(a)(1).

 The Commission’s activities are wholly funded through fees paid on “assessable gross 

revenues,” i.e. net gaming revenue, by each gaming operation. 25 U.S.C. § 2717(a); 25 C.F.R. § 

514.1(a), (b). IGRA gives the Commission the authority to establish both the amount of such fees 

and a schedule of their payment. 25 U.S.C. § 2717(a). The Commission adopted regulations 

requiring the payment of fees, at a rate set annually, together with the ling of statements 

showing assessable gross revenues for the previous calendar year. 25 U.S.C. § 514.1(c). These 

regulations mandate that fee statements and payments be led quarterly, and no later than March 

31, June 30, September 30, and December 31, of each calendar year. Ibid.

 The Fort Sill Apache Tribe is a Federally recognized Indian tribe that operates the Fort Sill 

Apache Casino in Lawton, Oklahoma. (See administrative record, Presiding Ofcial’s 

recommended decision, ndings of fact 1-2.) The Tribe operated its casino during all or part of 

2003 and 2004. (See nding of fact 2.) 

 From the end of the second quarter 2001, when the Tribe began submitting quarterly 

statements and fees, through the end of the second quarter 2004, the tribe led 9 of 13 fee 

statements and payments late. (See afdavit of John McNeil, Exhibit B.) In the following table, 

shaded statements and payment were late: are due
Year Quarter Date due Date led

2001 2nd 6-30-01 7-06-01

3rd 9-30-01 9-20-01

4th 12-31-01 1-03-02

2002 1st 3-31-02 7-29-02

2nd 6-30-02 7-29-02

3rd 9-30-02 10-22-02

4th 12-31-02 12-24-02

2003 1st 3-31-03 5-08-03

2nd 6-30-03 7-07-03

3rd 9-30-03 10-20-03

4th 12-31-03 11-29-03

2004 1st 3-31-04 5-21-04

2nd 6-30-04 6-23-04

(See administrative record, McNeil afdavit, Exhibit B.) 

 Mr. McNeil, the Tribe’s certied public accountant, made the payments. He testied that 

he had express permission from a Financial Specialist on the Commission staff who monitors 

and receives quarterly statements and fees, to le rst quarter payments late in the years 2001-

2003. (See recommended decision, nding of fact 5; admin. record Exhibit S1.) There was no 

such agreement for the rst quarter 2004. (See transcript, 96:21 – 97:12.) Mr. McNeil states, 

however, that he had express permission to le quarterly statements and fees within 15 days after 

their due dates. (See nding of fact 5.) Steve York, a gaming commissioner for the Tribe who is 

responsible for compliance, testied that the Chairman had taken no enforcement actions against 

any of the Tribe’s previous late payments. (See transcript, 50:8 to 51:19; nding of fact 14.)

 On May 26, 2004, the Chairman Hogen wrote to the leaders of all gaming tribes, including 

Jeff Houser, the Chairman of the Fort Sill Apache Tribe, about quarterly statements and fees. 

This letter states: 
In the past, the NIGC has not strictly enforced these [quarterly] deadlines because of the newness of Indian 

of familiarity with NIGC regulations.

As a result of the NIGC’s lenient policy, however, there continues to be a large number of tribes whose fee p 

supporting worksheets are submitted after the required deadlines....

Therefore, beginning with the June 30th compliance report, gaming operations will be shown out of complia 

worksheets and fees are not submitted by the stated regulatory deadlines....

(See admin. record, Exhibit S3A).

 The Tribe’s second quarter 2004 statement and fees were led timely, but its third quarter 

2004 statement and fees were not. (See McNeil afdavit, Exhibit B.) On December 20, 2004, 

Chairman Hogen wrote to tribes that led their third quarter statements late, including the Fort 

Sill Apache Tribe. (See admin. record tab 1; transcript 125:4-7). This letter, addressed again to 

Chairman Houser states:

The regulations of the National Indian Gaming Commission (NIGC) require gaming tribes to pay quarterly fe 

submit statements showing the calculation of these fees. Unfortunately, a signicant number of tribes have fa 

payments and submit the required statements on time. As a result we are sending those tribes who failed to m 

obligations a warning notice. This letter constitutes a warning notice to your tribe.

NIGC regulations require each gaming tribe to pay fees quarterly.... The Fort Sill Apache Tribe of Oklahoma 

comply with these provisions for the recently completed quarter. Payments and/or statements submitted by th 

received by the NIGC after the regulatory deadline....

Following receipt of this notice, the Tribe should take action to ensure that its future fee payments and statem 

a timely basis. In the event that the Tribe fails to submit the fees and statements by the required deadline, the 

an enforcement action....

(See admin. record, tab 1; recommended decision, nding of fact 8.) This letter was received in 

the Tribe’s ofces on December 27, 2004, but because of holidays and the vacations of many 

Tribal ofcials, was not conveyed to Mr. York until January 3, 2005. (See ndings of fact 9, 11-
12.) Having received the letter that day, Mr. York testied that he took immediate action to have 

the ling made and spoke with Mr. McNeil. The fee statement and payment for fourth quarter 

2004 were received by the Commission on January 10, 2005. (See finding of fact 13.) Mr. York 

admitted nonetheless that the Commission’s regulations mandate due dates for quarterly 

statements and fee payments. (See transcript, 47:47:4-15.)

 On March 16, 2005, Chairman Hogen issued notice of violation 05-06 to the Tribe for 

failure to make a timely ling of the fourth quarter 2004 fee statement and payment. (See admin. 

record, tab 4.) The Tribe timely appealed, (see admin. record tab 6), and the matter was heard by 

Candida S. Steel, Ofce of Hearings and Appeals, U.S. Department of the Interior, on May 26, 

2005.) Following the submission of additional exhibits, the record closed on June 17, 2005. (See 

nding of fact 15).

 The Presiding Ofcial issued her recommended decision on July 28, 2005. The 

Chairman led timely objections to the recommended decision. The tribe led none. We now 

reverse the recommended decision and uphold notice of violation 05-06.

DISCUSSION

THE PRESIDING OFFICIAL’S CONCLUSION THAT CONSIDERATIONS OF EQUITY 

AND FAIRNESS MILITATE AGAINST UPHOLDING THE NOTICE OF VIOLATION FOR 

AN UNDISPUTED VIOLATION OF COMMISSION REGULATIONS IS BOTH 

CONTRARY TO LAW AND AN IMPERMISSIBLE SUBSTITUTION OF HER JUDGMENT 

FOR THE CHAIRMAN’S DISCRETION IN MATTERS OF ENFORCEMENT. 

 We note at the outset that the Presiding Ofcial’s recommended decision lacks any clearly 

demarcated conclusions of law or citations to any legal authority. It appears that the Presiding 

Ofcial recommends dismissal for equitable reasons. This a presiding ofcial may not do when 
hearing a challenge to an enforcement action brought by the Chairman under the Indian Gaming 

Regulatory Act.

 We understand and respect the right of presiding ofcials and administrative law judges to 

conduct hearings in accordance with his or own discretion, understanding, and conscience. Ass’n. 

of Admin. Law Judges Inc. v. Heckler, 594 F. Supp. 1132, 1141 (D.D.C. 1984). However, on 

matters of law and policy, hearing ofcers, though they might dispute the validity of agency 

policy, are nonetheless bound to it. Ibid.

 The Administrative Procedure Act (“APA”) 5 U.S.C. §§ 701 et seq., makes the 

recommended decision of the presiding ofcial contingent. It becomes the decision of the agency 

only in the absence of further agency action. When the agency does review the recommended 

decision, the agency retains all the powers which it would have had, if it made the initial decision 

on its own. 5 U.S.C. § 557(b). IGRA authorizes the full Commission, not a presiding ofcial, to 

make nal, reviewable determinations about the Chairman’s enforcement actions for violations 

of IGRA. 25 U.S.C. §§ 2713(a)(2), 2714.

 In short, a presiding ofcial has only qualied decisional independence, Ass’n. of Admin. 

Law Judges, 594 F. Supp. at 1141, and that independence is constrained by statute. Nothing in 

IGRA or the Commission’s regulations give a presiding ofcial the power to review in equity the 

propriety of a notice of violation issued by the Chairman for a violation of IGRA. To the 

contrary, the Commission’s regulations limit the presiding ofcial’s recommended decision to 

ndings of facts and conclusions of law. 25 C.F.R. § 577.14. 
 It is evident here that the Presiding Ofcial recommended dismissal on the basis of simple 

fairness, notwithstanding the fact that the Tribe’s violation of the regulations establishing 

deadlines for ling quarterly fee statements and payments was undisputed. She found that 

“[t]echnically, the Tribe’s quarterly statement and payment were received by NIGC 11 days late, 

and the Tribe does not dispute this fact.” (See recommended decision, p. 5.) Nevertheless, she 

recommended dismissal of the notice of violation because “there are several factors ... which 

militate against upholding a relatively minor [n]otice of [v]iolation that would have long-term 

adverse impacts on the tribe.” (See recommended decision, p. 5.) 

 The Presiding Ofcial found that the Tribe acted in good faith, without “disregard of the 

NIGC and its prerogatives,” by moving to correct the late fourth quarter ling as soon as 

Chairman Hogen’s December 20 warning letter was conveyed to Commissioner York. (See 

recommended decision p. 7.) She also found that upholding the notice of violation would have 

“the potential of an undue long-term impact” on the Tribe, because this notice of violation would 

be taken into account in setting civil penalties for any future violation. Ibid.

 Thus the Presiding Ofcial’s decision calls into question the Chairman’s exercise of his 

discretion in bringing this notice of violation, even though she found that the Tribe’s late ling 

violated Commission regulations. The decision also questions any exercise of discretion by the 

Chairman in assessing a civil ne for a putative future violation. This the Presiding Ofcial may 

not do.

 Again, nothing within IGRA or the Commission’s regulations places the Chairman’s 

discretionary enforcement decisions within the scope of a presiding ofcial’s review. Moreover, 
under the APA, the Chairman’s discretionary enforcement decisions are not subject to the 

Presiding Ofcial’s review, even if she were reviewing the matter as a judge of the District 

Court.

 The Supreme Court held twenty years ago that under 5 U.S.C. § 701(a)(2), agency 

decisions, when “committed to agency discretion by law,” are presumptively unreviewable by a 

court, even under the usual “arbitrary, capricious, or an abuse of discretion” standard for review 

of administrative decisions. Heckler v. Chaney, 470 U.S. 821, 832-833 (1985). The presumption 

may only be rebutted when the substantive statute in question provides guidelines for the agency 

to follow in exercising its discretion. Ibid. That is, a discretionary decision may be reviewed only 

where there is a meaningful standard given against which to judge the agency’s exercise of 

discretion – some criteria found in statute or the agency’s own regulations by which one can 

determine whether the agency has, in fact, abused its discretion. See, e.g., Webster v. Doe, 486 

U.S. 592, 599-600 (1988); Arnow v. United States Nuclear Reg. Comm’n., 868 F.2d 223, 232 (7th

Cir. 1989), cert. denied, 493 U.S. 813 (1989). 

 Thus, cases where the governing statutes and regulations say that an agency ‘may’ exercise 

its enforcement powers without saying ‘how’ it is to do so are “cases committed to agency 

discretion” under § 701(a)(2) and not reviewable. For example, in Richardson v. FCC, 1992 U.S. 

App. LEXIS 32633 (7th Cir. 1992), plaintiff led a complaint with the FCC, asking that it take 

action against a local radio station for broadcasting information allegedly in violation of the Anti 

Drug Abuse Act of 1986, specically that the station had used its license “for the purpose of 

distributing, or assisting in the distribution of, any controlled substance in violation of Federal 

law.” Id. at *2. The FCC’s Mass Media Bureau determined that no enforcement action was 
warranted – the station did no more than broadcast the locations of police highway checkpoints –

and the FCC itself afrmed the decision of no action. Id. at *2 - *3.

 Following Chaney, the Seventh Circuit held the FCC’s decision unreviewable under § 

701(a)(2). The Anti Drug Abuse Act says that the FCC “may revoke” a license if used to 

distribute or aid in distributing controlled dangerous substances in violation of Federal law, but, 

the court found, nothing in that Act, its legislative history, in the Federal Communications Act, 

or in implementing regulations says how it should do so:

Clearly by using this permissive language [“may revoke”], Congress granted the FCC complete discretion to 

Act....

The Communication Act and the FCC’s own regulations do not provide us with judicially manageable standa 

allow us to judge how and when the agency should exercise its discretion in enforcing the Drug Act....

Both the Communications Act and the FCC regulations are silent on when the FCC should and should not en 

Without these standards, we cannot judge whether the FCC abused its discretion in not enforcing the Drug A 

station.

Id. at *4-*5. See also, Webster, above, 486 U.S. at 601 (personnel termination decisions by the 

CIA Director unreviewable under § 701(a)(2)).

 Here, similarly, IGRA gives to the Chairman the authority to levy and collect nes against a 

Tribal operator for violations of IGRA, Commission regulations, or tribal gaming ordinances, 

regulations, or resolutions. 25 U.S.C. § 2713(a)(1). IGRA makes the Chairman’s enforcement 

authority “subject to such regulation as may be prescribed by the Commission...,” ibid., and the 

Commission’s enforcement regulations say only that the “Chairman may issue” a notice of 

violation for violations of IGRA, Commission regulations, or any tribal ordinance or resolution 
approved by the Chairman. 25 C.F.R. 

§ 573.3(a).

 As such, nothing in IGRA or in the Commission’s regulations provides standards for 

reviewing the Chairman’s decision to bring an enforcement action against a violation. The 

Chairman’s decision to enforce against the Tribe here, fair or not, is unreviewable by the 

Presiding Ofcial.[1]

 Lastly as to this point, the Supreme Court has identied structural or institutional reasons 

why the discretionary decision of the Chairman to bring, or not to bring, an enforcement action 

against a Tribe for an IGRA violation should be left to his unfettered discretion – judicial and

quasi-judicial ofces are not well suited to making, or second-guessing, agency decisions:

The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves 

balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only 

violation has occurred, but whether agency resources are best spent on this violation or another, whether t 

to succeed if it acts, whether the particular enforcement action requested best ts the agency’s overall pol 

whether the agency has enough resources to undertake the action at all. An agency generally cannot act ag 

violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to de 

variables involved in the proper ordering of its priorities. Similar concerns animate the principles of admin 

courts generally will defer to an agency’s construction of the statute it is charged with implementing, and 

adopts for implementing that statute.

Chaney, 470 U.S. at 831- 832. In short, we conclude that the recommendation of dismissal on 

fairness or equitable grounds is both contrary law and an impermissible substitution of the 

Presiding Ofcial’s discretion for the Chairman’s and is, therefore, reversed.

The recommendation of dismissal for lack of actual notice to a Tribal official is contrary to law. 

Sufficient notice is provided by regulation as a matter of statute.
 Next, the Presiding Ofcial recommended dismissal of the notice of violation, concluding 

that actual notice of Chairman Hogen’s December 20, 2004, warning letter to proper Tribal 

ofcials was “an essential requirement of the viability of” the notice of violation. The Chairman, 

she found, “may have” intended to send the letter in order to coerce compliance and “must have 

believed that actual receipt of that warning was an essential element for establishing noncompliance.” Further, the Presiding Ofcial found that the letter was received by Tribal ofcials 

on January 3, 2005, at which time the Tribe took immediate steps to remedy the late ling. (See 

recommended decision, pp. 6-7.) This requirement of actual notice is contrary to law.[2]

 The Chairman’s beliefs and intent – indeed, the May and December letters themselves – are 

not relevant to the question of whether the notice of violation should be upheld.[3] Regulations 

duly promulgated by an agency under the APA automatically take effect 30 days (or more, if 

specied) after publication in the Federal Register, 5 U.S.C. 

§ 553(d), and such publication, as a matter of law, provides notice to all affected. 44 U.S.C. 

1507. An agency has no duty or obligation to provide any additional notice, actual or otherwise, 

to those who are subject to deadlines in duly promulgated regulations. Bowden v. United States, 

106 F.3d 433, 438 (D.C. Cir. 1997).

 If the May and December letters have any signicance, it is no more than they purport. This 

Commission, like any other agency, is free not to exercise its compulsory powers if it thinks 

simple exhortation is sufcient to achieve its regulatory mission. Public Citizen v. Nuclear 

Regulatory Comm’n., 901 F. 2d 147, 153 (D.C. Cir. 1990). The letters took exactly that 

approach. They remind the Tribes of the deadlines for ling quarterly fee statements and 

payments, let the Tribes know that the Commission’s former “lenient policy” resulted in a lot of 
non-compliance, and said that the Commission would be looking more carefully at quarterly 

lings going forward. (See admin. record, tab 1, Exhibit S3A.) 

 In any event, the only notice required here is given in 25 C.F.R. § 514.1(c)(2) and its list of 

quarterly deadlines. We conclude that the recommendation of dismissal for lack of actual notice 

to a Tribal ofcial is contrary to law and, therefore, is reversed.

The recommendation of dismissal on the ground of estoppel resulting from communications 

between the Commission staff and the Tribe is contrary to law. Estoppel does not lie against the 

United States on that basis.

 Finally, the Presiding Ofcial apparently concluded that the Chairman was estopped from 

bringing the notice of violation. She based this conclusion upon representations made by the 

Commission staff – before, we note, the fourth quarter 2004 – that the Tribe could le its fee 

statements and payments 10 to 15 days late. She based her conclusion as well upon the absence 

of any prior enforcement actions. The Presiding Ofcial wrote: “[i]t appears that the Tribe was 

lulled into thinking that their manner of conducting business with the NIGC was acceptable to it, 

and that if personnel at the agency felt that there was a problem, the Tribe would be given plenty 

of time to remedy the situation before any adverse action would be taken.” (See recommended

decision, p. 7.) The Chairman cannot be so estopped.

 It is well settled that estoppel cannot be asserted against an agency of the United States 

when the claim arises from the conduct of a government employee who provides incorrect 

information or acts in a manner inviting reliance. Federal Crop Insurance Corp. v. Merrill, 332 

U.S. 380, 384-385 (1947); Boulez v. Commissioner of Internal Revenue, 810 F. 2d 209, 218 n. 68 

(D.C. Cir. 1987), cert. denied, 484 U.S. 896 (1987). As the Supreme Court explained:
Whatever the form in which the government functions, anyone entering into an arrangement with the Gov 

risk of having accurately ascertained that he who purports to act for the Government stays within the boun 

The scope of this authority may be explicitly dened by Congress or though the rulemaking power.... An 

legislated in this instance, as in modern regulatory enactments is so often does, by conferring the rulemak 

agency created for carrying out its policy.... Just as everyone is changed with knowledge of the United St 

Large, Congress has provided that the appearance of rules and regulations in the Federal Register gives le 

contents.

Merrill, 322 U.S. at 384-385.

 Here, even if the Tribe made late payments in reliance upon representations made by the 

Commission staff as the Presiding Ofcial found, that cannot be the basis for estoppel. There is 

no evidence in the record that the staff had the authority to make such representations, and 

nothing in IGRA or in the Commission’s regulations provides such authority (a fact about which 

there was testimony, see transcript, 111:8-15.) Further, the Commission staff could not have the 

apparent authority to make such representations because the doctrine of apparent authority does 

not apply to dealings with the government. United States v. District of Columbia, 669 F. 2d 738, 

748 n. 13 (D.C. Cir. 1981); Littlejohn v. Washington Metro. Area Transit Auth., 1992 U.S. Dist. 

LEXIS 7510 at *6 (D.D.C. 1992). The Tribe is charged with knowledge of 25 C.F.R. § 514.1(c).

 In short, we conclude that the recommendation of dismissal on the ground of estoppel is 

contrary to law and is, therefore, reversed.

The Chairman met the burden of proof necessary to sustain the notice of violation.

 In administrative appeals of enforcement actions under 25 C.F.R. Part 573, the Chairman 

bears the burden of proof and the standard of review is preponderance of the evidence. In the 

Matter of JPW Consultants, NIGC 97-4; NIGC 98-8, Nov. 13, 1998 (citing In the Matter of 

Shingle Springs Band of Mewok Indians, NIGC 97-1, Dec. 3, 1998). Preponderance of the 

evidence is the degree of relevant evidence that a reasonable person, considering the record as 
whole, would accept as sufcient to nd that a contested fact is more likely to be true than 

untrue. Id. at 4. 

 Here, 25 C.F.R. § 514.1(c) requires that fourth quarter fee statements and payments be 

received at the Commission headquarters in WashingtonD.C. no later than December 31. It is 

undisputed in the record that the Tribe was aware of this regulation and that its fourth quarter 

statement and payment were received by the Commission on January 10, 2005.[4]

CONCLUSION

 Given all of the foregoing, the recommended decision is reversed and notice of violation 

NOV 05-06 is upheld.

It is so ordered by the NATIONAL INDIAN GAMING COMMISSION on this _25th_ day of 

August, 2005.

__/s/_________________________________ 

PHILIP N. HOGEN 

CHAIRMAN

____/s/_______________________________

NELSON W. WESTRIN

VICE-CHAIRMAN

____/s/_______________________________
CLOYCE V. CHONEY

COMMISSIONER

[1] We note that the Chairman’s decision to enforce here was eminently fair. The Tribe 

filed many late fee statements and payments against which the Chairman took no action. It 

received as well the Chairman’s two letters explaining that the Commission’s regulations 

mandate timely filing of fee statements and payments and specific deadlines for such filing. 

[2] We note that the Chairman’s letter was actually received in the Tribal ofces on 

December 27, 2004, and thus the Tribe had “actual notice” of the contents of the letter on that 

date. 

[3] The record is silent on the Chairman’s beliefs about the December 20 letter and, at 

most, only inferences may be drawn about his intent. There was testimony that he sent the May 

26, 2004, letter to all tribes reminding them of the quarterly ling requirements and deadlines, 

and that he sent the December 20 letter to the fteen or so Tribes who missed the third quarter 

ling deadline anyway. (See transcript, 115:25 – 116:17; 124:15 – 125:7.) We are not bound by 

speculation or inferences. Drexel Burnham Lambert Inc. v. Commodity Futures Trading 

Comm’n., 850 F. 2d 742, 747 (D.C. Cir. 1988) (“agencyis not bound by [an ALJ's] ‘secondary 

inferences,’ or ‘derivative inferences,’ i.e., facts to which no witness orally testied but which 

the [ALJ] inferred from facts orally testied by witnesses whom the examiner believed”).

[4] We note a great deal of discussion in the record concerning an error, carried in the 

Commission’s records for some time, concerning the amount of fees owed and paid. The error 

was eventually corrected. That discussion is irrelevant here, as this notice of violation concerns 

only the timeliness of the Tribe’s fourth quarter 2004 fee statement and payments, not the 

amount of the fees paid in that, or any other, quarter. Even if the Tribe had a credit that the 

Commission could put toward fees for the fourth quarter 2004, the submission of the fee 

statement was late.