In Jamul Action Committee v. Chaudhuri, 2016 U.S. App. LEXIS 13104, the Ninth Circuit held that the National Environmental Protection Act (NEPA) did not apply to the Jamul Indian Village Casino project in Jamul, California due to an irreconcilable timing conflict between NEPA and the Indian Gaming Regulatory Act (IGRA).
The Jamul Indian Village (Tribe), a federally-recognized Indian tribe, has been planning the Casino for more than fifteen years. In the late 1990s, the Tribe enacted a gaming ordinance (GO) describing how it would operate a high-stakes gaming facility in Jamul. In 2013, the National Indian Gaming Commission (Commission) approved a revised GO for the project under the IGRA.
The Casino has been opposed by many individuals and organizations, including the Jamul Action Committee, the Jamul Community Church, and four residents of rural Jamul. This lawsuit against the Commission was the most recent attempt to stop the project. The project opponents argued that NEPA review should have been conducted before the Commission approved the revised GO in 2013. The district court held that a NEPA review was not required because the Commission’s approval was not a major federal action within the meaning of NEPA.
The Ninth Circuit affirmed the district court’s decision, but on different grounds. The appellate court, citing Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma (1976) 426 U.S. 776, held that a NEPA review was not required due to an irreconcilable and fundamental conflict between IGRA and NEPA. The court reasoned that it was impossible for the Commission to comply with both statutes. The shortest time frame in which an EIS could be prepared under the NEPA statutory scheme was 120 days. But under IGRA, the Commission was required to approve the revised GO within 90 days of receiving it, a timeline controlled by Congress and triggered by the action of the Tribe.
Key Point: An agency may not be required to prepare an EIS, even for a major federal action, if an irreconcilable and fundamental conflict exists between NEPA and another applicable substantive statute. Such a conflict exists when a statute mandates a fixed deadline that is too short to allow the agency to comply with NEPA and the deadline and action triggering the deadline are not within the agency’s control.