Tenth Circuit Court Strikes Down 25 C.F.R. § 291 Regulations Addressing Secretarial Development of Class III Tribal Gaming Procedures

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NIGA Member Tribes

Chairman Ernest L. Stevens Jr.
Jason C. Giles, Executive Director
Danielle Her Many Horses, Deputy Executive Director/General Counsel

Tenth Circuit Court Strikes Down 25 C.F.R. § 291 Regulations Addressing Secretarial Development of Class III Tribal Gaming Procedures

May 8, 2017

On July 31, 2017, the National Indian Gaming Commission ("NIGC") released a final Protocol ("2017 Protocol") for Categorical Exclusions ("CATEX") under the National Environmental Policy Act of 1969 ("NEPA"), amending the NIGC's last issued Protocol from 2012 ("2012 Protocol").  Aside from a few technical differences, the 2017 Protocol finalizes provisions that were first proposed in a Notice of Proposed Action issued by the NIGC on January 11, 2017.  The 2017 Protocol is effective immediately.    

The 2017 Protocol includes: (1) The addition of a third CATEX covering certain Management Contract and Agreement Review Activities under the Indian Gaming Regulatory Act; (2) references to statutes protecting cultural resources meant to clarify the standards under which the NIGC will determine if extraordinary circumstances are present; and (3) a more specific listing of extraordinary circumstances that would disqualify an NIGC action from otherwise receiving a CATEX. 

The addition of a third CATEX category expands the number of NIGC actions that may qualify for a CATEX.  Actions qualifying for a CATEX are deemed by the NIGC to "not individually or cumulatively result in a significant impact on the human environment."  These qualifying actions also do not require Tribes to prepare an Environmental Assessment or Environmental Impact Statement, as is required by other NIGC actions under NEPA, except in the case of extraordinary circumstances. 

The 2012 Protocol included two (2) specific CATEX categories covering "Administrative and Routine Office Activities" and "Regulation, Monitoring and Oversight of Indian Gaming Activities."  In February of 2015, the NIGC proposed draft amendments to the 2012 Protocol and inserted a third CATEX category for all management contracts and agreement review activities of the NIGC.  This CATEX category also included the NIGC's conducting of background investigations in connection with these review activities.  The NIGC received feedback from tribal nations during its 2015 Consultations. 

After this two-year consultation period, the NIGC published the January 11, 2017 Notice of Proposed Action with different proposed amendments to the 2012 Protocol.  While the NIGC kept the provision concerning the NIGC's background investigations in the third CATEX category, it narrowed the scope ofmanagement contracts and agreement review activities that could qualify for a CATEX.  The provision specifies that all reviews of management contracts and other agreements (1) associated with an application to take land into trust; and (2) providing for construction or expansion of existing facilities would not qualify for a CATEX.  In addition to these exceptions, the NIGC also excluded reviews of management contracts and other agreements from the third CATEX category that do not (1) ensure compliance with all federal, state, local, and tribal environmental laws, regulations, and permit requirements and (2) ensure adequate provision of utilities, law enforcement, fire protection, and other emergency service coverage without effects on neighboring areas.         

Other differences of note between the 2012 and 2017 Protocols include a more detailed list of extraordinary circumstances that could disqualify an NIGC action from receiving a CATEX.  Specific references to statutes protecting cultural or archaeological resources, including the Archaeological Resources Protection Act and the Native America Graves Protection and Repatriation Act, have been added to clarify some of the standards used by the NIGC to determine whether extraordinary circumstances are present to disqualify an NIGC action that would otherwise receive a CATEX.  Additionally, more specific extraordinary circumstances have been added to this section, covering situations when the NIGC's proposed action (1) is related to other actions that, when considered cumulatively, have significant adverse effects; (2) will impact floodplains and/or wetlands on federal property; (3) violate National Ambient Air Quality Standards; (4) adversely impact environmental justice priorities; (5) adversely impact migratory bird populations; and (6) disturb hazardous substances that preexist in the environment such that there would be uncontrolled or unpermitted releases.

This 2017 Protocol supplements Council on Environmental Quality regulations implementing NEPA across all federal agencies and provides guidance to NIGC employees regarding procedural requirements for the application of NEPA provisions to NIGC actions.  It is a part of the NIGC's overall efforts as a federal agency to comply with the provisions of NEPA.  All federal agencies must comply with NEPA, which requires the assessment of environmental effects of proposed actions prior to making decisions in order to ensure that federal actions "protects, restores, and enhances our environment." 

The text of the 2017 Protocol is available on the following link:  https://www.federalregister.gov/documents/2017/07/31/2017-15498/protocol-for-categorical-exclusions-supplementing-the-council-on-environmental-quality-regulations 

NIGA will continue to provide alerts on NIGC activities. Please contact Veronica Watters at 202-548-3803 or vwatters@indiangaming.org with any questions regarding this alert.