Citations
- 361 F. Supp. 3d 14
Full opinion text
BERYL A. HOWELL, Chief Judge
The federal government's treatment of the plaintiff, the Koi Nation of Northern California ("Koi Nation"), a landless federally recognized Indian tribe, has been marked by decades of mistreatment, including terminating and selling the tribe's reservation in 1956 and denying the tribe the special programs and services provided only to those tribes with federally recognized status. Finally, in 2000, after persistent efforts by the Koi Nation, the defendant, the United States Department of the Interior ("DOI"), acknowledged the "egregious" administrative mistake and reaffirmed the Koi Nation's status as a federally recognized tribe, without requiring the tribe to undergo a formal regulatory process to obtain the same result. In a stark example of the government giving with one hand and taking away with the other, DOI's correction of its own long-standing error is now being used by DOI as the basis to deny the Koi Nation's eligibility for an exception to a statutory prohibition on gaming on Indian land, set out in the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq. , the law that "prescribes the conditions under which Indian tribes may engage in commercial gaming on their reservations," City of Roseville v. Norton , 348 F.3d 1020, 1021 (D.C. Cir. 2003).
The Koi Nation initiated this lawsuit to challenge DOI's decision, on January 19, 2017, to deny the tribe's eligibility for the IGRA exception, known as the "restored lands exception," 25 U.S.C. § 2719(b)(1)(B)(iii), as violative of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. , IGRA, and the Indian Reorganization Act ("IRA"), 25 U.S.C. §§ 5101 et seq. See Compl. ¶¶ 10, 82-124, ECF No. 1. Pending before the Court are the parties' cross-motions for summary judgment. See Pl.'s Mot. Summ. J. ("Pl.'s Mot."), ECF No. 14; Defs.' Cross-Mot. Summ. J. ("Defs.' Cross-Mot."), ECF No. 15. For the reasons explained below, the Koi Nation's motion is granted, and the defendants' motion is denied.
I. BACKGROUND
The Koi Nation, known until a name change in 2012 as the "Lower Lake Rancheria," is a landless, federally recognized Indian tribe headquartered in Santa Rosa, California. Administrative Record ("AR") at 1, 3, 4 (Decision Letter (Jan. 19, 2017) ("DOI 2017 Decision") at 1, 3, 4); AR at 326 n.1 (Letter from Koi Nation to DOI's Assistant Secretary of Indian Affairs (Apr. 28, 2014) ("Koi 2014 Request Letter") at 1 n.1). Starting in approximately 1956, the United States improperly ignored and mistakenly treated as terminated the Koi Nation's status as a federally recognized tribe. AR at 3-4 (DOI 2017 Decision at 3-4). The Koi Nation has been without a land base or reservation since that time. AR at 3 (DOI 2017 Decision at 3).
After decades of improperly denying the Koi Nation's status as a federally recognized tribe, DOI "sought to correct its error," AR at 4 (DOI 2017 Decision at 4), and, on December 29, 2000, DOI's Assistant Secretary of Indian Affairs reaffirmed the tribe's status as a federally recognized tribe, id. ; see also AR at 291 (Letter from DOI's Assistant Secretary of Indian Affairs Kevin Gover to Daniel Beltran, Chairman, Lower Lake Rancheria (Dec. 29, 2000) ("DOI 2000 Recognition Letter") ); AR at 293 (Memorandum from DOI's Assistant Secretary of Indian Affairs Kevin Gover to Bureau of Indian Affairs ("BIA") Regional Directors of Pacific and Alaska Regions (Dec. 29, 2000) ("DOI 2000 Recognition Memo") at 4). After reaffirmation in 2000 of the tribe's status, however, the tribe has not generated the revenues necessary to acquire lands in California. See Pl.'s Mem. Supp. Mot. Summ. J. ("Pl.'s Mem.") at 5, ECF No. 14-1; see also, e.g. , AR at 500-01 (Letter from Koi Nation to DOI's Secretary (Mar. 29, 2006) ("Koi Mar. 29, 2006 Request Letter") at 1-2). As a result, for almost fifteen years, the Koi Nation has sought to improve the economic viability of the tribe by conducting gaming activities under IGRA and, as a first step in this process, requesting from DOI on at least three occasions, in 2006, 2009 and 2014, a determination that the tribe qualifies for the restored lands exception, under which certain gaming is permitted on lands taken into trust as part of "the restoration of lands for an Indian tribe that is restored to Federal recognition." 25 U.S.C. § 2719(b)(1)(B)(iii) ; see also AR at 500-01 (Koi Mar. 29, 2006 Request Letter at 1-2); AR at 492 (Koi Nation's 2009 Request to DOI for Restored Tribe Determination (Oct. 7, 2009) ("Koi 2009 Request") at 1); AR at 326 (Koi 2014 Request Letter at 1).
The Koi Nation finally received a response to the tribe's multiple requests for a determination on January 19, 2017, when DOI issued the decision challenged in this lawsuit, concluding that the tribe is not eligible to game on lands under IGRA's restored lands exception, in reliance on DOI's implementing regulation, codified at 25 C.F.R. § 292.10. AR at 1-2 (DOI 2017 Decision at 1-2). The Koi Nation now challenges the validity of DOI's 2017 Decision, id. , and the subsection of the regulation, 25 C.F.R. § 292.10(b), on which that agency decision relies.
The Koi Nation's claims involve a complex statutory and administrative framework, as well as a lengthy history of interactions between DOI and the tribe. This context is summarized below.
A. STATUTORY AND REGULATORY FRAMEWORK
The parties' dispute over DOI's 2017 Decision implicates several statutes, including IGRA, the IRA, and the Federally Recognized Indian Tribe List Act of 1994 ("List Act"), and various implementing regulations, all of which are reviewed below.
1. The Indian Gaming Regulatory Act (IGRA)
IGRA, 25 U.S.C. §§ 2701 et seq. , was enacted in 1988 "to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments," id. § 2702(1), and, at the same time, "to shield [Indian tribes] from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players," id. § 2702(2). To these ends, IGRA established the National Indian Gaming Commission ("NIGC"), with certain enumerated powers and responsibilities. Id. §§ 2704-2706.
IGRA provides that Indian tribes may conduct "Class II" and "Class III" gaming activities only on eligible "Indian lands." Id. §§ 2710(b)(1), (d)(1). Section 20(a) of IGRA, id. § 2719(a), specifically makes ineligible for such activities "Indian land taken into trust by the Secretary after IGRA's effective date, October 17, 1988, unless the land borders an existing reservation or is within the last recognized reservation of a tribe that was landless at the time IGRA was enacted (unless the tribe is in Oklahoma, in which case lands bordering its former reservation are exempted as well)," City of Roseville , 348 F.3d at 1024 (summarizing 25 U.S.C. § 2719(a) ).
This gaming prohibition in § 20(a) is subject to two categories of exceptions in § 20(b) ("Section 20 exceptions"). "The first, § 20(b)(1)(A), allows the Secretary of the Interior to override § 20(a) and permit gaming on a newly acquired parcel when, 'after consultation with the Indian tribe and appropriate State and local officials' the Secretary 'determines that a gaming establishment ... 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 ... concurs....' " Id. (quoting 25 U.S.C. § 2719(b)(1)(A) ). Alternatively, "[t]he second, § 20(b)(1)(B), exempts lands taken into trust as part of the 'settlement of a land claim,' 'the initial reservation of an Indian tribe acknowledged by the Secretary,' " id. (quoting 25 U.S.C. §§ 2719(b)(1)(B)(i), (b)(1)(B)(ii) ), or, as relevant here, "the 'restoration of lands for an Indian tribe that is restored to federal recognition,' " id. (quoting 25 U.S.C. § 2719(b)(1)(B)(iii) ). This final exception, known as the "restored lands" exception, see 25 C.F.R. § 292.7, "helps ensure 'that tribes lacking reservations when [the statute] was enacted are not disadvantaged relative to more established ones,' " Butte Cty. v. Chaudhuri ("Chaudhuri "), 887 F.3d 501, 503 (D.C. Cir. 2018) (quoting City of Roseville , 348 F.3d at 1030 ).
2. Relevant IGRA Implementing Regulations, 25 C.F.R. Part 292
In 2008, DOI promulgated regulations, at 25 C.F.R. § 292, to "implement section 2719 of IGRA by articulating standards that the Department will follow in interpreting the various exceptions" to IGRA's general prohibition on gaming on after-acquired lands. Final Rule, Gaming on Trust Lands Acquired After October 17, 1988, 73 Fed. Reg. 29354, 29354 (May 20, 2008) ("Section 20 Final Rule"); see also 25 C.F.R. § 292.1 ("This part contains procedures that the Department of the Interior will use to determine whether [IGRA's Section 20] exceptions apply."). The Part 292 regulations included implementation of IGRA's restored lands exception. See 25 C.F.R. §§ 292.7 - 292.12 (providing DOI's procedures for implementing the restored lands exception).
Qualification for the restored lands exception involves a multi-part analysis, focusing on whether a tribe is one that is "restored to Federal recognition," and whether newly acquired lands on which that tribe seeks to conduct gaming are "restored" lands. See 25 C.F.R. § 292.7. Under 25 C.F.R. § 292.7, a tribe must meet four conditions to qualify for the restored lands exception: (1) "[t]he tribe at one time was federally recognized, as evidenced by its meeting the criteria in § 292.8," id. § 292.7(a) ; (2) "[t]he tribe at some later time lost its government-to-government relationship by one of the means specified in § 292.9," id. § 292.7(b) ; (3) "[a]t a time after the tribe lost its government-to-government relationship, the tribe was restored to Federal recognition by one of the means specified in § 292.10," id. § 292.7(c) ; and (4) "[t]he newly acquired lands meet the criteria of 'restored lands' in § 292.11," id. § 292.7(d). The defendants do not address or otherwise dispute that the Koi Nation meets the first and second conditions, and the fourth condition is not yet met because the tribe remains landless. Thus, the only disputed regulatory condition at issue here is whether the Koi Nation "was restored to Federal recognition" through one of three means specified in 25 C.F.R. § 292.10. Id. § 292.7(c).
The three methods for an Indian tribe to be restored to federally recognized status to qualify for the restored lands exception in IGRA's § 20(b), are set out in 25 C.F.R. § 292.10, which provides in full:
For a tribe to qualify as having been restored to Federal recognition for purposes of § 292.7, the tribe must show at least one of the following:
(a) Congressional enactment of legislation recognizing, acknowledging, affirming, reaffirming, or restoring the government-to-government relationship between the United States and the tribe (required for tribes terminated by Congressional action);
(b) Recognition through the administrative Federal Acknowledgment Process under § 83.8 of this chapter; or
(c) A Federal court determination in which the United States is a party or court-approved settlement agreement entered into by the United States.
Id. § 292.10. These three methods of tribal recognition reflected the same methods expressly identified in "Congressional Findings" for the List Act, enacted almost fifteen years earlier. See 25 U.S.C. § 5130 notes (Congressional Findings ¶ 3) (providing that "Indian tribes presently may be recognized by Act of Congress; by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated 'Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;' or by a decision of a United States court"). The Koi Nation challenges only the scope of the regulation's subsection (b) here.
In addition to these three methods to be "restored to Federal recognition" under § 292.10, a separate regulation, codified at § 292.26, exempts from the Part 292 regulations, which were promulgated in 2008, any earlier final agency decisions or opinions regarding the applicability of IGRA's Section 20 exceptions. See 25 C.F.R. § 292.26(a) (stating that the Part 292 regulations "do not alter final agency decisions made pursuant to [Section 20 of IGRA] before" the Part 292 regulations were enacted"); id. § 292.26(b) (stating that the Part 292 regulations "shall not apply" when, before these regulations became effective, DOI or the NIGC "issued a written opinion regarding the applicability of [Section 20] for land to be used for a particular gaming establishment, provided that the Department or the NIGC retains full discretion to qualify, withdraw or modify such opinions"). In other words, § 292.26 provides a "grandfather clause" for such earlier decisions or opinions and protects tribes, for which federally recognized status has been gained prior to 2008 by means other than the three methods outlined in § 292.10, from having to re-litigate their eligibility for Section 20 exceptions.
3. Process for Federal Acknowledgment of Indian Tribes, 25 C.F.R. Part 83
Until 1978, the federal government's recognition of Indian tribes "proceeded in an ad hoc manner ... with [BIA] ... reviewing petitions for federal recognition on a case-by-case basis." Mackinac Tribe v. Jewell , 829 F.3d 754, 756 (D.C. Cir. 2016). An "increase" in the number of groups requesting tribal recognition in the 1970s "necessitat[ed]" a "uniform approach." Final Rule, Procedures for Establishing That an American Indian Group Exists as an Indian Tribe, 43 Fed. Reg. 39361, 39361 (Aug. 24, 1978). To this end, DOI promulgated the Procedures for Federal Acknowledgment of Indian Tribes, now codified at 25 C.F.R. § 83, which provided a "Process for Federal Acknowledgment," including "procedures through which Indian groups could seek formal recognition." Mackinac Tribe , 829 F.3d at 756. A positive determination under Part 83 "will result in Federal recognition status and the petitioner's addition to the Department's list of federally recognized Indian tribes." 25 C.F.R. § 83.2. Once on that list, the tribe is "eligible for the special programs and services provided by the United States to Indians because of their status as Indians." List Act, 25 U.S.C. § 5131(a) ; see also id. § 5130 notes (Congressional Findings ¶ 3).
As the D.C. Circuit has summarized, "[a] group seeking recognition under Part 83 must submit a petition to Interior documenting certain criteria, including whether it has been identified as an American Indian entity on a 'substantially continuous basis' since 1900; whether it comprises a 'distinct community;' whether it has historically maintained 'political influence or authority over its members;' and whether its membership 'consists of individuals who descend from a historical Indian tribe.' " Mackinac Tribe , 829 F.3d at 756 (quoting 25 C.F.R. § 83.11(a) - (c), (e) ). A tribe, for which federal recognition has been terminated that seeks to regain federally recognized status administratively, must follow the Part 83 Federal acknowledgment process to obtain recognition, id. at 757, but is entitled to "separate fast tracking provisions," with relaxed requirements for obtaining federal recognition, Burt Lake Band of Ottawa & Chippewa Indians v. Norton , 217 F.Supp.2d 76, 79 (D.D.C. 2002) ; see also 25 C.F.R. § 83.12 (previously codified at 25 C.F.R. § 83.8 ).
For eligibility under IGRA's restored lands exception, as implemented in 25 C.F.R. § 292.10(b), a previously terminated tribe may seek recognition administratively, using the Federal acknowledgment process provided under 25 C.F.R. § 83, to satisfy the third condition, under id. § 292.7, that the tribe "was restored to Federal recognition by one of the means specified in § 292.10."
4. Federally Recognized Indian Tribe List Act of 1994 (List Act)
The List Act requires the Secretary to publish annually in the Federal Register a list of federally recognized Indian tribes. See 25 U.S.C. §§ 5130, 5131. As noted, a congressional finding accompanying the List Act describes three avenues for inclusion on the list of federally recognized tribes, id. § 5130 notes (Congressional Findings ¶ 3), which methods of federal recognition are the same three routes included in the regulatory definition for "restored to Federal recognition," in 25 C.F.R. § 292.10.
These same congressional findings further state that "Congress has expressly repudiated the policy of terminating recognized Indian tribes," 25 U.S.C. § 5130 notes (Congressional Findings ¶ 5), and task the Secretary "with the responsibility of keeping a list of all federally recognized tribes," id. (Congressional Findings ¶ 6), which list "should be accurate, regularly updated, and regularly published," id. (Congressional Findings ¶ 7). Congress stressed the need for accuracy in the Federal Register list of federally recognized tribes "since it is used by the various departments and agencies of the United States to determine the eligibility of certain groups to receive services from the United States." Id. ; see also id. (Congressional Findings ¶ 8) (finding that the list "should reflect all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians").
The Secretary's list failed to include the Koi Nation as a federally recognized tribe until 2000, with issuance by DOI's Assistant Secretary of Indian Affairs of the DOI 2000 Recognition Memo. AR at 4 (DOI 2017 Decision at 4).
5. The Indian Reorganization Act (IRA)
The IRA, enacted in 1934, "marked a shift away 'from assimilation policies and toward more tolerance and respect for traditional aspects of Indian culture,' " United States v. Jicarilla Apache Nation , 564 U.S. 162, 180 n.8, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011) (citation omitted), and a return to "principles of tribal self-determination and self-governance" for Indian tribes, Cty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation , 502 U.S. 251, 255, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). To further these goals, Congress authorized DOI to purchase land to take into trust for tribes, 25 U.S.C. § 5108, and for tribes to reorganize, id. § 5123, and even form corporate entities in certain circumstances, id. § 5124.
The IRA was amended in 1994, the same year as enactment of the List Act. In recognition of the sovereignty of federally recognized tribes, the IRA amendments expressly granted federally recognized tribes privileges and immunities, including from application of certain administrative regulations and decisions. See Act to Make Certain Technical Corrections, Pub. L. No. 103-263, § 5(b), 108 Stat. 707, 709 (1994) (now codified at 25 U.S.C. § 5123(f) - (g) ). As relevant here, the Koi Nation invokes the provision, set out in 25 U.S.C. § 5123(f), that prohibits the issuance of any federal administrative regulations, decisions, or determinations after May 31, 1994 "with respect to a federally recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe relative to other federally recognized tribes by virtue of their status as Indian tribes."
B. FACTUAL BACKGROUND
The Koi Nation is a federally recognized Indian tribe with origins tracing back to the Village of Koi, located on an island in Clear Lake, California. AR at 1-2, 4 (DOI 2017 Decision at 1-2, 4). On January 25, 1916, the United States, acting through BIA, purchased an approximately 141-acre tract of land in Lake County, California, which became the Koi Nation's Rancheria. AR at 2 (DOI 2017 Decision at 2). Subsequently, on June 5, 1935, BIA "certified a list of twenty Rancheria residents eligible to vote in elections conducted pursuant to the Indian Reorganization Act." Id. Despite this federal recognition of the tribe, over the next sixty-five years, the federal government sold off the Koi Nation's land and treated the tribe as if it no longer existed, as described in more detail below.
1. The Sale of the Koi Nation's Rancheria
In 1951, the Lake County, California Board of Supervisors "contacted ... BIA about the possibility of acquiring the Rancheria for use as a municipal airport." Id. BIA advised the Board of Supervisors that any purchase of the Rancheria, in whole or in part, required Congress's approval. Id. Thereafter, on March 29, 1956, Congress enacted legislation to authorize the transfer of the Rancheria to Lake County, with certain amendments enacted on July 20, 1956. AR at 2-3 (DOI 2017 Decision at 2-3). These acts, which together are known as the "Lower Lake Act," authorized the Secretary to "complete the sale of the Rancheria to Lake County" and, ever since, the Koi Nation "has been without a land base." AR at 3 (DOI 2017 Decision at 3).
Two years later, in 1958, Congress passed the Rancheria Act, authorizing "the Secretary to begin the process of terminating the government-to-government relationship between the United States and several named tribes, and of selling those tribes' lands and distributing the proceeds of those sales to the tribes' members." Id. DOI immediately began publishing notices of termination in the Federal Register, and many terminated tribes filed lawsuits against the United States challenging DOI's compliance with the Rancheria Act. Id. Many of those cases were resolved through court-approved settlements. Id.
2. The Koi Nation's Treatment as a Terminated Tribe
Neither the Lower Lake Act nor the Rancheria Act addressed or authorized termination of the Koi Nation's status as a federally recognized Indian tribe. See id. ("[T]he Tribe was not among those named in the Rancheria Act, and ... nothing in the Lower Lake Act effectuated - or even suggested - a termination of the Tribe."). The United States, however, treated the Koi Nation "as if it had been terminated from approximately the time of the Lower Lake Act's enactment" in 1956. AR at 2-3 (DOI 2017 Decision at 2-3).
Indeed, BIA repeatedly referred to the Koi Nation's status as a tribe whose federal recognition had been terminated. For example, in a February 1, 1975 publication, BIA's Division of Law Enforcement Services listed the Koi Nation, then known as the Lower Lake Rancheria, as "terminated" pursuant to the Lower Lake Act. See AR at 89-90, 93-94 (Indian Law Enforcement History, BIA Division of Law Enforcement Services (Feb. 1, 1975) ("BIA 1975 Law Enforcement Manual") at 1-2, 60-61) (listing "Lower Lake" as a tribe terminated in 1956 under the Lower Lake Act); see also AR at 3 & n.22 (DOI 2017 Decision at 3 & n.22). Similarly, on October 21, 1980, a BIA official sought approval from the Acting Director of BIA's Sacramento Area Office to place the Koi Nation on the Federal Register list of federally recognized tribes and added that such approval should "include [the] date restored." AR at 377 (Memorandum from BIA Sacramento Area Office (Oct. 31, 1980) ("BIA 1980 Memo") ); AR at 396 (NIGC Decision and Order (Oct. 7, 2008) ("NIGC 2008 Decision") at 3). BIA, however, declined to include the Koi Nation on the Federal Register list of federally recognized tribes. See AR at 377-79 (BIA 1980 Memo). Additionally, BIA, on November 20, 1995, denied the Koi Nation's application for tribal government grant funding because the Koi Nation did "not appear in the February 16, 1995 Federal Register List of Indian entities recognized and eligible to receive services from" BIA. AR at 95 (Letter from DOI to Dino Beltran, Chairman, Koi Nation of the Lower Lake Rancheria (Nov. 20, 1995) ("DOI 1995 Letter") ); see also AR at 3 (DOI 2017 Decision at 3). Likewise, the United States Department of Housing and Urban Development, on December 18, 1995, declined to provide services to the Koi Nation because it was "not recognized as an Indian tribe." See AR at 398 (NIGC 2008 Decision at 5). The United States' treatment of the Koi Nation as a terminated tribe for nearly five decades meant that the tribe could not establish a reservation or ask for lands to be acquired in trust by the time Congress enacted IGRA in 1988. See AR at 3 (DOI 2017 Decision at 3).
3. The Koi Nation's Reaffirmation as a Federally Recognized Tribe
The Advisory Council on California Indian Policy, on behalf of the Koi Nation, wrote to the Assistant Secretary of Indian Affairs, on June 21, 1995, to "confirm the federally recognized status" of the Koi Nation. AR at 313 (Letter from Advisory Council on California Indian Policy to DOI's Assistant Secretary of Indian Affairs, Ada Deer (June 21, 1995) ("California Council 1995 Letter") at 1). In this letter, the Advisory Council explained that the Koi Nation qualified for administrative recognition, under 25 C.F.R. § 83's Federal acknowledgment process for tribes with previous federal recognition. AR at 313-19 (California Council 1995 Letter at 1-7); see also AR at 4 (DOI 2017 Decision at 4).
In October and, again, in November 1999, BIA representatives met with the Koi Nation regarding an initiative by DOI's Assistant Secretary of Indian Affairs "to pursue the legislative restoration of a number of tribes presently viewed as terminated." AR at 82 (Memorandum from Superintendent, BIA's Central California Agency, to BIA's Regional Director, Pacific Region (Sept. 14, 2000) ("BIA 2000 Recommendation Memo") ); AR at 291 (DOI 2000 Recognition Letter). In BIA's view, these meetings resulted in an "understanding" among the attendees that if additional research "suggest[ed]" the Koi Nation "should not be presently considered as terminated, administrative reaffirmation of the Tribe's federal recognition would be sought." AR at 83 (BIA 2000 Recommendation Memo). Just under a year later, on September 14, 2000, BIA's Central California Agency analyzed the Koi Nation's history, questioned the Koi Nation's treatment as a terminated tribe since "the effect of the Lower Lake Act was not to terminate" the Koi Nation, and recommended reaffirmation of the tribe's recognized status, which had been improperly ignored. See AR at 82-88 (BIA 2000 Recommendation Memo).
On December 29, 2000, DOI's Assistant Secretary of Indian Affairs, Kevin Gover, issued a letter to the Koi Nation, which "follow[ed] up" on the Fall 1999 meetings. See AR at 291 (DOI 2000 Recognition Letter). After acknowledging "the long-standing and unfortunate omission" of the Koi Nation "from recognition and services" by BIA following the Lower Lake Act and Rancheria Act, DOI's Assistant Secretary of Indian Affairs "reaffirm[ed] the Federal recognition" of the Koi Nation and directed that the Koi Nation be included on the Secretary's list of federally recognized tribes. Id.
On the same day, DOI's Assistant Secretary of Indian Affairs also issued an internal memorandum discussing reaffirmation of the federally recognized status of the Koi Nation and two other Indian tribes. AR at 293 (DOI 2000 Recognition Memo at 4). This memorandum explained that the three tribes were not "required to go through the Federal acknowledgment process outlined in" 25 C.F.R. § 83 "because their government-to-government relationship continued." Id. Specifically, the memorandum pointed out that the "acknowledgment regulation does not apply to Indian tribes whose government-to-government relationship was never severed." Id. Rather, the Part 83 regulation "provides a process for tribes to seek recognition when the tribe has yet to establish such a government-to-government relationship, when a previously existing government-to-government relationship has lapsed, or when the government-to-government relationship was terminated through an administrative process." Id. In the Koi Nation's case, the tribe was "never administratively terminated nor were [its] relations with the United States broken." Id. DOI has characterized this agency finding, in December 2000, that the Part 83 Federal acknowledgment process is not available or applicable to the Koi Nation, as an "implicit waiver" of the Part 83 regulations as to this tribe. See Defs.' Opp'n at 23 (stating "Interior does not dispute that it impliedly waived the Part 83 regulations for Plaintiff in 2000 for the purposes of putting Koi on the list of federally recognized tribes," and asserting the Part 83 regulations therefore "did not apply" to the Koi Nation); Defs.' Reply at 13-14 (conceding that "Interior waived the Part 83 regulations for Plaintiff" and agency's view that the Part 83 process is not available to the Koi Nation); accord Muwekma , 708 F.3d at 216 (explaining DOI "exercised its broad authority" to reaffirm the Koi Nation, quoting 25 C.F.R. § 1.2, which "authoriz[es] exception to Part 83 process 'in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians' ").
The memorandum conceded that, even though the Koi Nation's "tribal status [has] been continuously maintained by the tribal members," AR at 295 (DOI 2000 Recognition Memo at 6), "for reasons not clearly understood, [the Tribe was] simply ignored as the BIA went through fundamental organization and philosophical changes," and "an administrative error by the [BIA] occurred in the initial failure to place the tribe[ ] on the Federal Register List of entities recognized and eligible to receive services from the [BIA]," AR at 293 (DOI 2000 Recognition Memo at 4). Having identified the "egregious oversight" and "unfortunate part of the Bureau's legacy," the memorandum concluded that the error "must be corrected" and the tribe's "rightful existence must now be reaffirmed." Id. Thus, the "Department's 2000 reaffirmation decision was intended to rectify a past wrong, without litigation or utilizing the Part 83 acknowledgement process." AR at 6 (DOI 2017 Decision at 6).
4. The Koi Nation's 2006 and 2008 Unsuccessful Requests for a "Restored Tribe" Determination
After achieving formal recognition again in 2000, almost eight years prior to the promulgation in 2008 of the challenged regulation, 25 C.F.R. § 292.10(b), the Koi Nation requested in 2006 that the Secretary make a determination that the tribe was "restored to Federal recognition," under 25 U.S.C. § 2719(b)(1)(B)(iii), and therefore eligible for IGRA's restored lands exception to engage in gaming activities on lands that could be put in trust by the United States for the tribe. AR at 500-01 (Koi Mar. 29, 2006 Request Letter at 1-2). The defendants do not dispute that the Koi Nation received no response from DOI about this request. See Pl.'s Mem. at 18 (stating "[t]he record does not contain a response by DOI"); Pl.'s Reply Supp. Pl.'s Mot. Summ. J. & Opp'n Defs.' Cross-Mot. Summ. J. ("Pl.'s Opp'n") at 6, ECF No. 18 ("Defendants have not provided any evidence in the [AR] that this 2006 request was answered in a timely manner or at all."); Defs.' Reply at 2 (leaving uncontested that DOI never responded to the tribe's 2006 request). Apparently, the agency simply ignored this request for a determination of the tribe's eligibility under IGRA's Section 20 exceptions. Such a determination would likely have protected the tribe under the "grandfather" clause of 25 C.F.R. § 292.26, from application of the challenged regulation, id. § 292.10(b), altogether.
While the 2006 request was pending before the Secretary, on March 17, 2008, the Koi Nation sought approval from NIGC for a gaming ordinance, AR at 394 (NIGC 2008 Decision at 1), which is a necessary approval before a tribe may open a gaming operation on land regulated under IGRA, see 25 U.S.C. §§ 2710(b)(1)(B), (d)(1)(A)(iii). The Koi Nation based the request for a gaming ordinance on the tribe being "a restored tribe within the meaning of 25 U.S.C. § 2719(b)(1)(B)(iii)," AR at 394 (NIGC 2008 Decision at 1) (emphasis in original), "[a]s a precautionary measure against" publication of a rule that might exclude the tribe from qualifying as a restored tribe, AR at 493 (Koi 2009 Request at 2). NIGC's chairman disapproved the ordinance on June 13, 2008. AR at 414 (NIGC 2008 Decision at 21).
The Koi Nation administratively appealed that disapproval, AR at 394 (NIGC 2008 Decision at 1), but on October 7, 2008, the full Commission affirmed the Chairman's disapproval, AR at 414 (NIGC 2008 Decision at 21). Although the Koi Nation's "case arouse[d] the Commission's sympathy," NIGC rejected the Koi Nation's gaming ordinance both because the tribe was landless and because DOI's December 2000 finding that the tribe was not terminated meant the tribe was not "restored within the meaning of IGRA because it was never terminated." AR at 395, 401-02, 405-14 (NIGC 2008 Decision at 2, 8-9, 12-21).
5. DOI's 2008 Promulgation of IGRA Part 292 Regulations
BIA published a notice of proposed rulemaking, on October 5, 2006, "to establish procedures that an Indian tribe must follow in seeking to conduct gaming on lands acquired after October 17, 1988." Notice of Proposed Rulemaking, 71 Fed. Reg. 58769, 58769 (Oct. 5, 2006) ("BIA NPRM"). The proposed new rule was intended to "address not only the exception contained in [ § 2719(b)(1)(A) of IGRA], but also the other exceptions contained in [Section 20], in order to explain to the public how the Department interprets these exceptions." 73 Fed. Reg. at 29354 (Section 20 Final Rule). After extensions, the comment period closed on February 1, 2007. See 71 Fed. Reg. at 58769 (BIA NPRM) (ending initial comment period on December 4, 2006); Extension of Comment Period and Correction for Proposed Rule, 71 Fed. Reg. 70335, 70335 (Dec. 4, 2006) (extending comment period until December 19, 2006); Reopening of Comment Period for Proposed Rule, 72 Fed. Reg. 1954, 1954 (Jan. 17, 2007) (reopening comment period until February 1, 2007).
The Koi Nation timely provided comments, criticizing the description of how tribes "qualify as having been restored to Federal recognition," in the proposed 25 C.F.R. § 292.10, as "unfairly limiting the tribes to whom this exception is available." AR at 451 (Letter from Koi Nation's counsel to BIA Office of Indian Gaming Management (Feb. 1, 2007) ("Koi 2007 Comments") at 7). Although the proposed regulation provided for " 'restoration' through the legislative process, the judicial process and through the executive branch," the Koi Nation pointed out that the regulation "unfairly limits executive action to recognition gained through the Federal Acknowledgement Process." Id. To address this deficiency, the Koi Nation proposed that the regulation "should also include Executive Branch action to restore tribes to recognition by means other than the Federal Acknowledgment Process," specifying "restoration by the Secretary of the Interior or his/her designees." Id. The tribe emphasized that "[w]hile the number of tribes who have been restored to recognition in this manner is very small ..., they should not be penalized because the Secretary used his/her discretion to recognize them by means other than the procedures." Id.
DOI rejected the Koi Nation's proposal to expand the methods of administrative recognition for a tribe to qualify for the restored lands exception for two reasons. See 73 Fed. Reg. at 29363 (Section 20 Final Rule). Noting that "[n]either the express language of IGRA nor its legislative history defines restored tribe," DOI stated its view that, first, "Congress did not intend to include" in IGRA's restored lands exception tribes that received administrative recognition based on "pre-1979 ad hoc determination[s]," because when enacting IGRA in 1988, "Congress clearly understood the part 83 process." Id. Congress, in fact, referenced tribes "acknowledged through the part 83 process," id. , in a Section 20 exception, albeit a different one than the restored lands exception, see 25 U.S.C. § 2719(b)(1)(B)(ii) (providing exception to IGRA's prohibition of gaming on after-acquired lands when lands are taken into trust as part of "the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process"). Further, DOI noted that "[t]he part 83 regulations were adopted in 1978," prior to IGRA's enactment in 1988, to end DOI's "ad hoc determinations of tribal status" and to create "a uniform process for making such determinations in the future." 73 Fed. Reg. at 29363 (Section 20 Final Rule). In view of Congress's understanding of the Part 83 Federal acknowledgment process and the purpose behind it, DOI reached the conclusion that Congress sought to make that process the exclusive avenue for administrative recognition that could qualify a tribe for IGRA's restored lands exception. Id.
Second, DOI found confirmation of this conclusion in the List Act, which was enacted in 1994 and "identified only the part 83 procedures as the process for administrative recognition." Id. With respect to "past reaffirmations," these reaffirmations "were done to correct particular errors," and "[o]mitting any other avenues of administrative acknowledgment is consistent with the notes accompanying the List Act that reference only the part 83 regulatory process as the applicable administrative process." Id. Thus, DOI reiterated the conclusion that "[t]he only acceptable means under the regulations for qualifying as a restored tribe under IGRA are by Congressional enactment, recognition through the Federal acknowledgment process under 25 CFR 83.8, or Federal court determination in which the United States is a party and concerning actions by the U.S. purporting to terminate the relationship or a court-approved settlement agreement entered into by the United States concerning the effect of purported termination actions." Id.
On May 20, 2008, BIA published the Final Rule implementing IGRA's Section 20 exceptions to the statutory prohibition on Indian tribe gaming activities on lands acquired after October 17, 1988. 73 Fed. Reg. at 29354. These regulations, codified at 25 C.F.R. § 292, became effective on August 25, 2008. Correction to and Stay of Effective Date, 73 Fed. Reg. 35579, 35579-80 (June 24, 2008) (staying effective date of Section 20 Final Rule until August 25, 2008).
6. Koi Nation's Efforts for Formal Determination As Restored Tribe Under the Part 292 Regulations, Leading to Challenged DOI 2017 Decision
After promulgation of the 2008 regulations at 25 C.F.R. § 292, the Koi Nation continued its efforts to obtain a formal determination to be a restored tribe. See AR at 491-99 (Koi 2009 Request at 1-8). For example, in 2009, the Koi Nation submitted to DOI a "request for restored tribe determination" that would provide a "formal determination" that the tribe was restored to federal recognition for purposes of IGRA's restored lands exception, AR at 492 (Koi 2009 Request at 1) (capitalization omitted), based on DOI's reaffirmation of the tribe's recognition in 2000, id. ; see also AR at 291 (DOI 2000 Recognition Letter). The Koi Nation's efforts produced a positive recommendation from a BIA Regional Office on December 23, 2010, when the Director of BIA's Pacific Region issued a memorandum to DOI's Assistant Secretary of Indian Affairs, with a "request" to consider the Koi Nation a restored tribe. AR at 386 (Memorandum from BIA Regional Director to DOI's Assistant Secretary (Dec. 23, 2010) ). The basis for the recommendation was explained as follows: "Consistent with case law and our relationship with the [Koi Nation] we believe that they should be considered a 'restored tribe' under Section 20 of [IGRA]. Documentation shows that the United States for all intensive [sic] purposes considered [the Koi Nation] terminated until they were restored to recognition."Id. The Regional Director's request and recommendation, however, was never ratified. See Pl.'s Mem. at 20; Defs.' Reply at 15.
On April 28, 2014, the Koi Nation submitted another request, this time to the Assistant Secretary of Indian Affairs, for a determination that the tribe qualified as a "restored tribe" for purposes of IGRA and this statute's implementing Part 292 regulations. AR at 326-36 (Koi 2014 Request Letter at 1-11). The Koi Nation supplemented this request with additional letters and supporting documents in December 2014, January 2016, July 2016, September 2016, and December 2016, all of which DOI treated as part of the Koi Nation's initial April 2014 request. See AR at 1 n.2 (DOI 2017 Decision at 1 n.2).
On January 19, 2017, DOI issued the challenged decision denying the Koi Nation's April 2014 request for a determination that it is "an Indian tribe that is restored to Federal recognition" for purposes of IGRA, as that exception is defined by the Part 292 regulations, 25 C.F.R. § 292. AR at 1-7 (DOI 2017 Decision at 1-7). DOI reasoned that "[t]he Department's regulations constrain the restored tribe exception to those tribes which were acknowledged through the part 83 process, a court, or by Congress only," and the Koi Nation was not acknowledged in any of those three ways. AR at 5-6 (DOI 2017 Decision at 5-6). Thus, DOI concluded that the Koi Nation's reaffirmation in 2000 did not satisfy 25 C.F.R. § 292.10(b), which regulation defines how a tribe may become restored to federal recognition through administrative action. AR at 1, 6 (DOI 2017 Decision at 1, 6).
C. PROCEDURAL HISTORY
The Koi Nation filed its Complaint asserting four claims, on August 23, 2017, seeking declaratory and injunctive relief, against DOI, as well as DOI's Secretary and Acting Assistant Secretary for Indian Affairs, in their official capacities (collectively, the "defendants"). Compl. at 1. The Koi Nation alleges, first, that it constitutes a tribe "restored to Federal recognition" under IGRA's restored lands exception, and that DOI "invalidly narrowed" the definition of "restored to Federal recognition" in promulgating 25 C.F.R. § 292.10(b) and applying this regulation to the Koi Nation. Id. ¶¶ 82-98 (Count I). The tribe next claims that 25 C.F.R. § 292.10(b) is invalid because the regulation "unlawfully diminish[es] the Koi Nation's privileges and immunities relative to other federally recognized Indian tribes," in violation of 25 U.S.C. § 5123(f), the IRA's privileges and immunities clause. Id. ¶¶ 99-109 (Count II). Even if 25 C.F.R. § 292.10(b) is valid, the Koi Nation further claims that the government's application of this regulation to the tribe violates the IRA's privileges and immunities clause by "draw[ing] an arbitrary distinction between the Koi Nation and similarly situated Indian tribes, which is not based on the factual circumstances surrounding the Koi Nation's relationship with the United States, but is instead based upon the date the Defendants promulgated the Part 292 Regulations." Id. ¶¶ 110-16 (Count III). Finally, the Koi Nation claims that DOI's "conclusion regarding the Koi Nation's status under § 292.10 was arbitrary, capricious, and not in accordance with the law" under the APA. Id. ¶¶ 117-24 (Count IV).
To remedy these alleged violations, the Koi Nation seeks to set aside DOI's 2017 Decision and a declaration that the tribe "qualifies as an Indian tribe 'restored to federal recognition' under IGRA, pursuant to 25 U.S.C. § 2719," Compl. ¶¶ 1, 4, as well as invalidation of a subsection of the implementing regulation, 25 C.F.R. § 292.10(b), to the extent that the regulation excludes from eligibility for IGRA's restored lands exception tribes administratively determined to be recognized outside the formal Part 83 Federal acknowledgement process, Compl. ¶ 2; see also Pl.'s Mem. at 11; Pl.'s Opp'n at 9-13.
After certifying the AR, see Notice of Lodging AR, ECF No. 12; Joint Status Report and Proposed Briefing Schedule, ECF No. 13 (notifying the Court that the parties agreed to the contents of the AR, as supplemented by the Koi Nation), the parties filed their cross-motions for summary judgment, which are now ripe for resolution.
II. LEGAL STANDARD
A. SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when the court finds, based on the pleadings, depositions, affidavits, and other factual materials in the record, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a), (c) ; see also Tolan v. Cotton , 572 U.S. 650, 656-57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A genuine issue of material fact exists if the evidence, 'viewed in a light most favorable to the nonmoving party,' could support a reasonable jury's verdict for the non-moving party." Muwekma , 708 F.3d at 215 (quoting McCready v. Nicholson , 465 F.3d 1, 7 (D.C. Cir. 2006) ).
In APA cases such as this one, involving cross-motions for summary judgment, "the district judge sits as an appellate tribunal. The 'entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote omitted) (collecting cases). Thus, this Court need not and ought not engage in lengthy fact finding, since "[g]enerally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions." James Madison Ltd. v. Ludwig , 82 F.3d 1085, 1096 (D.C. Cir. 1996) ; see also Lacson v. U.S. Dep't of Homeland Sec. , 726 F.3d 170, 171 (D.C. Cir. 2013) (noting in an APA case that "determining the facts is generally the agency's responsibility, not ours"). As a general rule, judicial review is limited to the administrative record, since "[i]t is black-letter administrative law that in an [APA] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision." CTS Corp. v. EPA , 759 F.3d 52, 64 (D.C. Cir. 2014) (internal quotation marks and citation omitted); see also 5 U.S.C. § 706 ("[T]he court shall review the whole record or those parts of it cited by a party...."); Fla. Power & Light Co. v. Lorion , 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (noting that when applying arbitrary and capricious standard under the APA, "[t]he focal point for judicial review should be the administrative record already in existence...." (quoting Camp v. Pitts , 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ) ).
B. ADMINISTRATIVE PROCEDURE ACT
Under the APA, a reviewing court must set aside a challenged agency action that is found to be, inter alia , "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A) ; "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," id. § 706(2)(C) ; or "without observance of procedure required by law," id. § 706(2)(D) ; see also Otis Elevator Co. v. Sec'y of Labor , 762 F.3d 116, 120-21 (D.C. Cir. 2014) (citing Fabi Constr. Co. v. Sec'y of Labor , 370 F.3d 29, 33 (D.C. Cir. 2004) ). The arbitrary or capricious provision, under § 706(2)(A), "is a catchall, picking up administrative misconduct not covered by the other more specific paragraphs" of the APA. Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys. , 745 F.2d 677, 683 (D.C. Cir. 1984) (Scalia, J.).
To pass arbitrary and capricious muster, "the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. ("State Farm "), 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks and citation omitted). As the D.C. Circuit has explained, a party challenging an agency action as arbitrary and capricious "must show the agency action is not a product of reasoned decisionmaking." Van Hollen, Jr. v. FEC , 811 F.3d 486, 495 (D.C. Cir. 2016). "This is 'a heavy burden,' since State Farm entails a 'very deferential scope of review' that forbids a court from 'substitut[ing] its judgment for that of the agency.' " Id. (quoting Transmission Access Policy Study Grp. v. FERC , 225 F.3d 667, 714 (D.C. Cir. 2000) ); see also Judulang v. Holder , 565 U.S. 42, 52-53, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) (same); Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec. , 769 F.3d 1127, 1135 (D.C. Cir. 2014) (same). Particularly when "an agency has acted in an area in which it has 'special expertise,' the court must be particularly deferential to [the agency's] determinations." Sara Lee Corp. v. Am. Bakers Ass'n Ret. Plan , 512 F.Supp.2d 32, 37 (D.D.C. 2007) (quoting Bldg. & Constr. Trades Dep't, AFL-CIO v. Brock , 838 F.2d 1258, 1266 (D.C. Cir. 1988) ). That said, "courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking." Judulang , 565 U.S. at 53, 132 S.Ct. 476. Simply put, "the agency must explain why it decided to act as it did." Butte Cty. v. Hogen , 613 F.3d 190, 194 (D.C. Cir. 2010).
The D.C. Circuit has summarized the circumstances under which an agency action would normally be "arbitrary and capricious" to include "if the agency has relied on factors which Congress has 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 implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Pharm. Research & Mfrs. of Am. v. FTC , 790 F.3d 198, 209 (D.C. Cir. 2015) (quoting State Farm , 463 U.S. at 43, 103 S.Ct. 2856 ). Thus, when an agency "has failed to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action." Cty. of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999) (quoting BellSouth Corp. v. FCC , 162 F.3d 1215, 1222 (D.C. Cir. 1999) ); see also Select Specialty Hosp.-Bloomington, Inc. v. Burwell , 757 F.3d 308, 312 (D.C. Cir. 2014) (noting that when "an agency's failure to state its reasoning or to adopt an intelligible decisional standard is [ ] glaring [ ] we can declare with confidence that the agency action was arbitrary and capricious" (quoting Checkosky v. SEC , 23 F.3d 452, 463 (D.C. Cir. 1994) ) ); Amerijet Int'l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) ("[A] fundamental requirement of administrative law is that an agency set forth its reasons for decision; an agency's failure to do so constitutes arbitrary and capricious agency action." (internal quotation marks omitted) ). "[C]onclusory statements will not do; an agency's statement must be one of reasoning. " Amerijet Int'l, 753 F.3d at 1350 (emphasis in original) (internal quotation marks omitted).
III. DISCUSSION
The Koi Nation contends that the defendants violated the APA, as alleged in Count IV of the Complaint, by (1) invalidly narrowing IGRA's restored lands exception in 25 C.F.R. § 292.10(b), which consequently was improperly applied to the tribe, Compl. ¶¶ 82-98, 117; (2) treating the Koi Nation differently than similarly situated tribes, contrary to 25 U.S.C. § 5123(f)'s prohibition against diminishing the tribe's privileges and immunities relative to other federally recognized tribes, id. ¶¶ 99-116, 117; and (3) insufficiently explaining DOI's interpretation of the restored lands exception, id. ¶¶ 104, 108, 117. See Pl.'s Opp'n at 9 (clarifying that all claims are brought under the APA). Before turning to the merits of the Koi Nation's claims, the defendants' threshold jurisdictional challenges to these claims as not ripe and untimely under the applicable statute of limitations are addressed.
A. THE KOI NATION'S CLAIMS ARE RIPE FOR JUDICIAL REVIEW
Defendants' ripeness challenge is addressed first because "[r]ipeness is a justiciability doctrine that is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." La. Pub. Serv. Comm'n v. FERC , 522 F.3d 378, 397 (D.C. Cir. 2008) (internal quotation marks and citation omitted). The defendants argue briefly, in a total of two paragraphs, that the Koi Nation's claims are "unripe" because, as a landless tribe, "Interior cannot determine whether the 'restored lands' exception applies until a Tribe obtains a specific parcel of land and seeks to have that land taken into trust for gaming." Defs.' Reply at 3 n.1; see also Defs.' Opp'n at 14 (stating the Koi Nation's request to be declared a restored tribe is "unripe" because the tribe "lacks land"). In other words, the defendants have turned the justiciability of the Koi Nation's claims into a chicken and egg puzzle, in which the tribe would be required to obtain a parcel of land before the tribe's claim to restored federally recognized status would be ripe for consideration. Setting land ownership as a prerequisite for the ripeness of a claim for a judicial resolution of a dispute over DOI's decision on the tribe's status is both untenable and incorrect, as demonstrated by DOI's own handling of the Koi Nation's 2014 request.
DOI's 2017 Decision shows the flaw in the defendants' ripeness argument that DOI "cannot determine" whether the restored lands exception applies to the Koi Nation until the tribe obtains a parcel of land. DOI states in this decision that, "I regret to inform you that in applying the regulations to your factual submission, I have determined that the Tribe doesn't satisfy the regulatory requirements to constitute a 'restored tribe,' pursuant to 292.10(b)," and "[a]lthough the Tribe has not submitted a fee-to-trust request for gaming purposes pursuant to IGRA's 'restored lands' exception, based on my determination today if the Tribe did submit such an application I would have no alternative but to deny it." AR at 1-2. The decision concludes, "This decision constitutes a final agency action under the Administrative Procedure Act." Id. at 2.
In short, even while landless, the Koi Nation received DOI's final decision denying "restored tribe" status, demonstrating that DOI can determine whether the restored lands exception applies to a landless tribe. The fact that DOI has already made a final determination, applying the Part 292 regulations to the Koi Nation and concluding IGRA's restored lands exception is not available to the tribe, renders the Koi Nation's challenge to this decision ripe. See Nat'l Park Hosp. Ass'n v. Dep't of Interior , 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (noting an agency action is " 'ripe' for judicial review under the APA" on occurrence of "some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him") (quoting Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ). The defendants' ripeness challenge is rejected.
B. THE KOI NATION'S CLAIMS ARE TIMELY UNDER THE APPLICABLE STATUTE OF LIMITATIONS
The parties agree that the applicable statute of limitations is six years, under 28 U.S.C. § 2401(a), and that the Koi Nation's APA challenges to DOI's application of 25 C.F.R. § 292.10(b) to the tribe, in Count IV, to the DOI 2017 Decision are timely. See Defs.' Opp'n at 11-14 (arguing only that plaintiff's "facial" challenges, described in "Count I" and "Count II," are untimely because of the six-year limitation period in 28 U.S.C. § 2401(a), but not disputing the timeliness of the Koi Nation's other claims); Pl.'s Opp'n at 10-13 (asserting that the as-applied challenges were brought within statutory time limits under 28 U.S.C. § 2401(a) ); see also Nat'l Ass'n of Mfrs. v. Dep't of Def. , --- U.S. ----, 138 S.Ct. 617, 626-27, 199 L.Ed.2d 501 (2018) (explaining that actions "governed by the APA ... generally must be filed within six years after the claim accrues" pursuant to 28 U.S.C. § 2401(a) ); Mendoza v. Perez , 754 F.3d 1002, 1018 (D.C. Cir. 2014) ("Unless another statute provides otherwise, civil claims against the United States-including those brought pursuant to the APA-are subject to the statute of limitations contained in 28 U.S.C.§ 2401...."). The defendants, however, claim that the Koi Nation's "facial challenges" to the regulation, 25 C.F.R. § 292.10(b), are untimely because the six-year statute of limitations began to run on those claims in 2008 and, therefore, that this Court lacks jurisdiction over the claims described in Counts I and II. See Defs.' Opp'n at 11; see also Washington All. of Tech. Workers v.United States Dep't of Homeland Sec. , 892 F.3d 332, 345 n.4 (D.C. Cir. 2018) (" Section 2401(a) 'is a jurisdictional condition attached to the government's waiver of sovereign immunity.' " (quoting Spannaus v. DOJ , 824 F.2d 52, 55 (D.C. Cir. 1987) ) ); Muwekma , 708 F.3d at 218 ("The court lacks subject matter jurisdiction to hear a claim barred by section 2401(a).").
The predicate for this untimeliness argument is the defendants' characterization as "facial challenges" the claims that 25 C.F.R. § 292.10(b) invalidly narrowed IGRA's statutory term of "restored to Federal recognition," see Defs.' Opp'n at 12, and that this regulation unlawfully diminishes the privileges and immunities of recognized tribes relative to other recognized tribes, in violation of the IRA, see id. The defendants contend that the six-year statute of limitations for these claims began to accrue in 2008 because (1) the Part 292 regulations were adopted and published in that year; and (2) by 2008, the Koi Nation knew or should have known that the Part 292 regulations would exclude the tribe from the definition of a tribe "restored to Federal recognition" under IGRA. See id. at 12-14. Each of defendants' statute of limitations arguments fails.
1. Accrual from Adoption and Publication of the Part 292 Regulations
According to the defendants, 28 U.S.C. § 2401(a)'s six-year limitations period bars the Koi Nation's facial challenges because those claims accrued when DOI adopted and published the Part 292 regulations on May 20, 2008, more than nine years before the Koi Nation filed the instant Complaint, on August 23, 2017. See Defs.' Opp'n at 11, 13. The defendants are correct that, ordinarily, "[t]he 'right of action first accrues on the date of the final agency action,' " and promulgation of a rule is "unquestionably final agency action." Washington All. of Tech. Workers , 892 F.3d at 342 (quoting Harris v. FAA , 353 F.3d 1006, 1010 (D.C. Cir. 2004) ). Thus, the "six-year window to directly challenge the statutory authority" for the rule starts to run at the time the rule was published. See id. ; see also Weaver v. Fed. Motor Carrier Safety Admin. , 744 F.3d 142, 145 (D.C. Cir. 2014) ("Where Congress imposes a statute of limitations on challenges to a regulation, running from a regulation's issuance, facial challenges to the rule or the procedures by which it was promulgated are barred.").
Nonetheless, the D.C. Circuit has explained that an agency's regulations "may be attacked in two ways once the statutory limitations period has expired." NLRB Union v. Fed. Labor Relations Auth. , 834 F.2d 191, 195 (D.C. Cir. 1987). "First, a party who possesses standing may challenge regulations directly on the ground that the issuing agency acted in excess of its statutory authority in promulgating them." Id. "The second method of obtaining judicial review of agency regulations once the limitations period has run is to petition the agency for amendment or rescission of the regulations and then to appeal the agency's decision." Id.
D.C. Circuit "case law makes it clear" that the first method is an "established, narrow exception to the statutory tim