 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 15, 2017             Decided April 13, 2018

                        No. 16-5240

                BUTTE COUNTY, CALIFORNIA,
                       APPELLANT

                              v.

   JONODEV OSCEOLA CHAUDHURI, CHAIRMAN, NATIONAL
          INDIAN GAMING COMMISSION, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-00519)


     Dennis J. Whittlesey, Jr. argued the cause and filed the
briefs for appellant.

    Jeffrey S. Beelaert, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Jeffrey H. Wood, Acting Assistant Attorney General, and
William B. Lazarus and Robert P. Stockman, Attorneys.

    Michael J. Anderson argued the cause and filed the brief
for tribal appellee Mechoopda Indian Tribe of Chico
Rancheria, California.
                                  2
    Before: ROGERS, SRINIVASAN and PILLARD, Circuit
Judges.

   Opinion for the Court filed by Circuit Judge SRINIVASAN.

    SRINIVASAN, Circuit Judge: The Indian Gaming Regulatory
Act allows a federally-recognized Indian tribe to conduct
gaming on lands held in trust by the Secretary of the Interior
for the tribe’s benefit. 25 U.S.C. §§ 2710(b)(1), 2703(4)(B).
The authorization to conduct gaming generally applies only if
the lands had been taken into trust as of the Act’s effective date
of October 17, 1988. Id. § 2719(a). But the Act permits
gaming on lands that are taken into trust after that date “as part
of . . . the restoration of lands for an Indian tribe that is restored
to Federal recognition.” Id. § 2719(b)(1)(B)(iii). That
exception for “restored lands” helps ensure “that tribes lacking
reservations when [the Act] was enacted are not disadvantaged
relative to more established ones.” City of Roseville v. Norton,
348 F.3d 1020, 1030 (D.C. Cir. 2003).

     In 1992, the Mechoopda Tribe regained its federal
recognition. Twelve years later, the Tribe asked the Secretary
to take into trust a 645-acre parcel in Chico, California, so that
the Tribe could operate a casino on the property. The Tribe
argued that it could conduct gaming on the property because
the parcel qualified as “restored lands” within the meaning of
the statutory exception. The Secretary agreed with the Tribe,
but this court vacated the Secretary’s decision and remanded
the matter for further proceedings. Butte Cty. v. Hogen, 613
F.3d 190 (D.C. Cir. 2010).

    In 2014, the Secretary reconsidered the issue and again
held that the Chico parcel constitutes “restored lands.” Butte
County, where the parcel is located, sued in federal district
court, arguing that the Secretary’s decision was procedurally
                                3
defective and substantively unreasonable. The district court
rejected the County’s challenge and upheld the Secretary’s
decision. We affirm the district court’s judgment.

                                I.

                                A.

     This case concerns the Indian Gaming Regulatory Act’s
restored-lands exception. That exception, as noted, permits
gaming on property taken into trust after the Act’s effective
date “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). To meet that exception, a tribe that has
regained its federal recognition must prove (among other
things) that it has “a significant historical connection to the
land” at issue. 25 C.F.R. § 292.12(b); see Grand Traverse
Band of Ottawa and Chippewa Indians v. U.S. Attorney for W.
Dist. of Mich., 198 F. Supp. 2d 920, 935 (W.D. Mich. 2002).

     In 2002, the Mechoopda Tribe asked the Department of the
Interior—specifically, the National Indian Gaming
Commission—to provide an opinion as to whether the 645-acre
Chico parcel would qualify as “restored lands.” The
Commission’s Office of General Counsel said the parcel would
qualify, so the Tribe applied for the land to be held in trust to
enable the development and operation of a casino on the
property. Before the Secretary could issue a notice of final
decision, Butte County, seeking to dispute the treatment of the
parcel as restored lands, submitted a report authored by a
history professor, Dr. Stephen Beckham. Beckham’s report
concluded that, although the pre-1850 Mechoopda Tribe
arguably had historical connections to the Chico parcel, the
modern Tribe was not biologically descended from the pre-
                               4
1850 Tribe. Beckham opined that the modern Tribe thus
lacked the requisite historical connection to the parcel.

     The Secretary issued a final decision taking the land into
trust, but without giving express consideration to the Beckham
report. Butte County challenged the Secretary’s decision in
federal district court. The court ruled in favor of the agency.
Butte Cty. v. Hogen, 609 F. Supp. 2d 20, 28-30 (D.D.C. 2009).
On appeal, we held that, by failing to give reasons for rejecting
the Beckham report, the Secretary had “violate[d] the minimal
procedural requirements” applicable in an informal agency
adjudication. Butte Cty., 613 F.3d at 194.

    On remand, the Secretary opted to reopen the
administrative record. The Secretary gave the County 30 days
to introduce new evidence and gave the Tribe 30 days to
respond. In a letter the County alleges was sent only to the
Secretary (not the County), the Tribe requested a 15-day
extension, which the Secretary granted. The Tribe then
submitted an expert report prepared by Dr. Shelly Tiley, an
anthropologist. The report purported to rebut Beckham’s
conclusion that the modern Mechoopda Tribe was not
descended from the pre-1850 Mechoopda Tribe. The Secretary
then announced that the record was closed.

     A week later, the County wrote to the Secretary, requesting
permission to respond to Tiley’s report. The Secretary agreed
and granted the County 20 days. The County responded that
the 20-day timeframe was inadequate, but the County made no
request for an extension of time. The Secretary thereafter
issued a decision taking the Chico parcel into trust under the
restored-lands exception.

     The County again challenged the Secretary’s decision in
district court. The County argued that the Secretary had
                                5
violated the Administrative Procedure Act in four ways: (i) by
reopening the record on remand, (ii) by granting the Tribe a 15-
day extension, (iii) by giving the County only 20 days to
respond to Tiley’s report, and (iv) by issuing a substantive
decision that was arbitrary and capricious. In support of its
substantive challenge, the County submitted a second report
prepared by Beckham in 2014, this one a direct response to
Tiley’s report.

    Both parties moved for summary judgment, and the district
court granted the Secretary’s motion. This appeal followed.


                               II.

     The County raises both procedural and substantive
challenges to the Secretary’s decision to treat the Chico parcel
as restored lands on which the Tribe may operate a casino. We,
like the district court, see no basis to set aside the Secretary’s
decision.

                               A.

     We first consider the County’s procedural objections to the
Secretary’s determination. When the Secretary considers an
application to take lands into trust under the restored-lands
exception, the agency, we have explained, engages in “what is
known as informal agency adjudication.” Butte Cty., 613 F.3d
at 194. For that type of agency action, the “[g]overning
procedural rules” are supplied by § 555(e) of the
Administrative Procedure Act. Id. Under that provision, an
agency, when denying an application, must give the applicant
“[p]rompt notice . . . accompanied by a brief statement of the
grounds for [the] denial.” Agencies can voluntarily go beyond
the procedural requirements of the Administrative Procedure
                               6
Act, but courts generally cannot compel agencies to do more
than the statute demands (unless additional procedural
safeguards are necessary to satisfy due process requirements).
See Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633,
653-56 (1990); Dist. No. 1, Pac. Coast Dist. Marine Engineers’
Beneficial Ass’n v. Mar. Admin., 215 F.3d 37, 42-43 (D.C. Cir.
2000).

     Here, the County first contends that the Secretary erred by
reopening the administrative record on remand. The remand
came about after we vacated the Secretary’s initial decision to
take the Chico parcel into trust because the Secretary had failed
to consider Beckham’s 2006 report. Butte Cty., 613 F.3d at
194-95. We remanded “for further proceedings consistent with
[our] opinion.” Id. at 196-97. The district court then remanded
the matter to the Secretary so that he could “reconsider his
decision to acquire the Chico Parcel.” J.A. 484A. (Because
this matter has spanned the terms of two different Secretaries,
we use different pronouns to refer to the Secretary depending
on who was in office at the relevant time.) The district court
specifically instructed the Secretary to make the 2006
“Beckham Report . . . part of the administrative record on
remand.” Id. (formatting modified).

     Neither our decision, nor that of the district court,
instructed the Secretary that he could not reopen the record.
And in the absence of any specific command to that effect, the
Secretary was generally free to determine in his discretion
whether to accept additional evidence. See Chamber of
Commerce v. SEC, 443 F.3d 890, 900 (D.C. Cir. 2006). The
County relies on Tennis Channel, Inc. v. FCC, in which we
upheld an agency’s refusal to reopen the administrative record
on remand. 827 F.3d 137, 144-45 (D.C. Cir. 2016). But Tennis
Channel fully supports recognizing an agency’s broad
discretion in deciding whether to accept new evidence. There,
                               7
the agency decided against reopening the record; and here, the
Secretary made the opposite choice, permitting both the
County and the Tribe to submit new evidence. The County
gives us no reason to conclude that the Secretary abused his
discretion in that regard.

     Next, the County contends that the Secretary should not
have granted the Tribe a 15-day extension of time to submit its
response (Tiley’s report) to the County’s submission. But the
County does not contend that the Secretary somehow ran afoul
of the Administrative Procedure Act by granting the extension.
The County instead alleges that the Tribe misled the Secretary
about the reasons for seeking the extension. The County’s
allegation is largely unsupported, but even assuming the Tribe
misled the Secretary, that would not render the Secretary’s
grant of an extension improper. See Suarez v. Sec’y of Health
& Human Servs., 755 F.2d 1, 4 (1st Cir. 1985). Nor would it
matter if, as the County contends, the Tribe sought the
extension through an ex parte communication.               Such
communication is not necessarily impermissible in an informal
agency adjudication like the proceeding at issue here. See Dist.
No. 1, 215 F.3d at 42-43.

     In its final procedural challenge, the County contends that
the Secretary should have given it more than 20 days to respond
to Tiley’s report. But in an informal adjudication, there is no
blanket obligation for an agency to allow the submission of
rebuttal evidence at all. See Jurewicz v. U.S. Dep’t of
Agriculture, 741 F.3d 1326, 1334-35 (D.C. Cir. 2014). Here,
moreover, the County had almost 60 days to respond to Tiley’s
report (from the time the County received the report to the end
of the 20-day period), and the County at no point asked for an
extension of time to submit its response or explained why 20
days would be inadequate. In those circumstances, the
Secretary acted well within his authority in setting a 20-day
                               8
response deadline. This procedural challenge by the County
thus fares no better than the others.

                              B.

    We next consider the County’s contention that the
Secretary’s substantive decision was arbitrary and capricious.
That is so, the County submits, because the Secretary ignored
or misconstrued facts that conflicted with her decision, many
of which were presented in Beckham’s 2006 and 2014 reports.

                               1.

     As an initial matter, the Secretary was not required to
account for facts first presented in Beckham’s 2014 report.
When reviewing agency action, we generally consider only
“information [that] the agency [had] when it made its
decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014)
(internal citation omitted). Thus, even if a party seeks to rely
on evidence conflicting directly with an agency decision, we
will not invalidate the decision as arbitrary and capricious
based on the evidence if it “was not in the record at the time”
of the decision. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. EPA,
768 F.2d 385, 401 (D.C. Cir. 1985).

    Here, the Secretary granted the Tribe’s request to take the
parcel into trust in January 2014. Beckham finished drafting
his 2014 report almost six months later, in July. The 2014
report therefore was not—and could not have been—part of the
record before the Secretary. It follows that, even if the
Secretary’s decision conflicted with the report, that conflict
generally could not render her decision arbitrary and
capricious.
                               9
     Granted, there are exceptions to the ordinary rule that we
do not consider evidence outside the record. See Esch v.
Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). But those “narrow
and rarely invoked” exceptions apply when evidence is
excluded from the record because of some “gross procedural
deficienc[y].” CTS Corp., 759 F.3d at 64 (quoting Hill
Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013))
(emphasis omitted). The County contends that Beckham’s
2014 report was not part of the record because the Secretary
gave the County inadequate time to prepare it. As we have
explained, however, the Secretary committed no procedural
error—much less a “gross” one—when he gave the County 20
days to respond to Tiley’s report. We thus decline to consider
Beckham’s 2014 report when reviewing the Secretary’s
decision.

     The County argues that, at a minimum, we should consider
the 1910 decennial census referenced in Beckham’s 2014
report. That is so, the County says, because the Secretary, as
head of a federal agency, should have known about that
evidence. But documents do not become part of an
administrative record whenever an agency arguably should
have been aware of them. Indeed, documents do not
necessarily become part of an administrative record even if the
agency possessed them at the time of the decision. See, e.g.,
Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1182-83 (D.C. Cir.
1980).     Instead, documents can become part of an
administrative record if a party brings them to the attention of
the agency before the decision is made. See Theodore
Roosevelt Conversation P’Ship v. Salazar, 616 F.3d 497, 515
(D.C. Cir. 2010). In this case, there is no indication that the
1910 census records had been brought to the Secretary’s
attention before she granted the trust application, so we do not
consider that evidence when evaluating her decision.
                                 10
                                 2.

       The County contends that the Secretary ignored or
misconstrued certain facts in the record in determining that the
Chico parcel fits within the Indian Gaming Regulatory Act’s
restored-lands exception. That exception, as explained,
permits the Tribe to conduct gaming operations on the parcel
even though it was taken into trust after the Act’s effective date.
The exception applies to property “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). Here, it
is undisputed that the Tribe regained federal recognition in
1992. The only question thus is whether the Chico parcel
constitutes “restored lands.”

     Before 2008, the Secretary assessed whether lands qualify
as “restored lands” by considering three factors first set out in
Grand Traverse Band of Ottawa and Chippewa Indians v. U.S.
Attorney for the Western District of Michigan—namely, (i)
“the factual circumstances of the acquisition,” (ii) “the location
of the acquisition,” and (iii) “the temporal relationship of the
acquisition to the tribal restoration.” 198 F. Supp. 2d 920, 935
(W.D. Mich. 2002). Under the location factor, the Secretary
examined whether the tribe had both historical and modern
connections to the specific parcel at issue. See, e.g., Wyandotte
Nation v. Nat’l Indian Gaming Comm’n, 437 F. Supp. 2d 1193,
1214-17 (D. Kan. 2006).

     In 2008, the Secretary promulgated a regulation codifying
an updated test for determining whether lands qualified as
“restored lands.” Gaming on Trust Lands Acquired After
October 17, 1988, 73 Fed. Reg. 29,354, 29,377-78 (May 20,
2008) (codified at 25 C.F.R. § 292.12). That test likewise calls
for considering three factors: (i) “modern connections to the
land,” (ii) “historical connection[s] to the land,” and (iii) “a
                               11
temporal connection between the date of the acquisition of the
land and the date of the tribe’s restoration.” Id.

     Here, the Secretary initially decided to take the Chico
parcel into trust in March 2008, shortly before the regulation
took effect. After we vacated the Secretary’s decision, the
Secretary reassessed whether the parcel qualifies as “restored
lands,” this time applying both the Grand Traverse Band test
and the test established by the regulation. The Secretary
concluded that, under either test, the parcel constitutes
“restored lands.”

     On appeal, the County argues only that the Tribe lacks a
sufficient historical connection to the Chico parcel. Because
that consideration is common to both tests, we have no
occasion to consider whether one or the other test should
control in the circumstances of this case. We instead assess
only whether the Secretary’s application of the historical-
connection factor was arbitrary and capricious.

     The Secretary concluded that, for two reasons, the Tribe
had a sufficient historical connection to the Chico parcel. First,
the Secretary explained that the parcel sits only “10 miles from
the Tribe’s former Rancheria.” J.A. 406. In light of that “close
proximity,” the Secretary considered it appropriate to treat the
Tribe’s historical connections to the Rancheria as connections
to the parcel itself. Id. That treatment is “reasonable,” the
Secretary determined, because the order restoring the Tribe’s
federal recognition “effectively preclude[d] the Tribe from
acquiring any trust lands for the purpose of gaming within the
boundaries of the former Rancheria” itself. Id.

     Second, the Secretary determined that the Tribe also had
direct historical connections to the Chico parcel, not just the
nearby Rancheria. Before the Tribe moved to the Rancheria,
                                12
its members had been scattered across several villages located
on, or “very close to,” the parcel. J.A. 408-09. And even if
Tribe members did not actually live on the parcel, they almost
certainly traversed it to reach other tribes with whom they
traded and participated in joint religious ceremonies. Id.
Indeed, the parcel is situated just one mile from the Pentz Hills,
a set of buttes that are of spiritual significance to the Tribe. Id.
at 409. The Tribe also hunted, fished, and gathered on the
parcel. Id. at 408. And in 1851, the Mechoopda negotiated a
treaty with the federal government, which, if ratified, would
have included the Chico parcel within the Tribe’s reservation.
Id. at 409. For those reasons, the Secretary concluded that the
Tribe’s historical connections to the Chico parcel supported
taking the land into trust for gaming purposes.

     The County does not dispute that the Tribe has meaningful
historical connections to the Rancheria, located 10 miles from
the Chico parcel. Insofar as that is an “adequate and
independent” rationale for the Secretary’s decision, the
County’s failure to challenge that rationale would be reason
enough to affirm here. Steel Mfrs. Ass’n v. EPA, 27 F.3d 642,
649 (D.C. Cir. 1994) (citing 5 U.S.C. § 706).

     We need not resolve the adequacy of that rationale,
though, because the County’s challenge to the Secretary’s
second rationale also fails. The thrust of the County’s
challenge is that members of the modern Mechoopda Tribe are
not biological descendants of members of the pre-1850
Mechoopda Tribe. Instead, the County argues, Indians from
many tribes lived together at the Rancheria in the late 1800s
and early 1900s, in a “multi-ethnic, polyglot group.”
Appellant’s Opening Br. 12. According to the County, the
descendants of that group—not the pre-1850 Tribe—are what
we now know as the Mechoopda Tribe.
                              13
     In the County’s view, the Secretary ignored several facts
supporting that theory. The County first points to a 1914 report
prepared by W.C. Randolph, an officer of the Bureau of Indian
Affairs. Randolph visited the Rancheria and concluded that the
Indians living there did not “belong to any particular band” but
instead were “remnants of various small bands, originally
living in Butte and nearby counties.” J.A. 188. The County
also relies on a census conducted by the Bureau from 1928 to
1933. According to records from that census, less than a
quarter of the people living on the Rancheria identified as
Mechoopda, and the residents included members of at least
seven other tribes. J.A. 190-95.

     Contrary to the County’s submission, the Secretary did not
ignore either the Randolph report or the 1928-33 census
records. True, in the section of the Secretary’s decision
addressing the Tribe’s historical connection to the parcel, the
Secretary did not explicitly mention either source. But the
Secretary did cite Beckham’s 2006 report for the proposition
that, by the 1850s, the Rancheria’s population was “an
amalgamation of Indians from numerous tribes.” J.A. 406-07.
And that conclusion was based (in large part) on the Randolph
report and the census.

     The Secretary then explained why that information did not
change her analysis. Although many Indians at the Rancheria
descended from non-Mechoopda tribes, those Indians, over
time, “integrated themselves into the Mechoopda culture.” J.A.
401. The Secretary observed that the Rancheria had a kúm, a
ceremonial hut forming the central feature of Mechoopda
villages. Id. at 399 & n.79. The Rancheria also had a dance
society, the most important social organization in Mechoopda
communities. Id. And the primary language spoken on the
Rancheria was Maidu, the Mechoopda Tribe’s native tongue.
                               14
The Secretary concluded for those reasons that the Mechoopda
Tribe, despite the influx of new members, lived on.

     That explanation also helps show that the Secretary did not
misconstrue the facts in the way alleged by the County. In her
final decision, the Secretary cited a 1906 census of the Indians
residing on the Rancheria, this one taken by another Bureau
officer, C.E. Kelsey. The Secretary noted that Kelsey’s records
identified two leaders of the Rancheria community—Holi
Lafonso and William Conway—“as the head[s] of the list of
Mechoopda families.” J.A. 420. The County emphasizes that
the census records in fact do not list the tribal affiliation of
either man; and although Lafonso had descended from the
Mechoopdas, Conway seems to have descended from members
of the Ukie tribe. J.A. 191-92. But when properly considered
in light of the Secretary’s understanding of the evolution of the
Tribe’s makeup on the Rancheria, the Secretary’s observation
about Lafonso and Conway presents no basis for setting aside
her determination: whatever tribe Lafonso and Conway may
originally have been born into, they (like everyone on the
Rancheria) integrated themselves into the Mechoopda Tribe.
They therefore could fairly be considered the “head[s] . . . of
Mechoopda families.”

     The County finally contends that, even if the Indians on
the Rancheria adopted the Tribe’s cultural traditions, they did
not adopt the Tribe’s political traditions. The Secretary
permissibly concluded otherwise. Mechoopda villages were
always led by a “headman.” J.A. 399. In accordance with that
structure, the Rancheria community recognized a headman,
who was always a person biologically descended from the pre-
1850 Mechoopda Tribe. Id. & n.79. The Indians on the
Rancheria thus integrated themselves not only into the Tribe’s
cultural traditions, but also into its “political structure.” J.A.
                             15
408. For all of those reasons, the Secretary’s substantive
decision survives arbitrary-and-capricious review.

                     *   *   *    *   *

    For the reasons set forth in this opinion, we affirm the
judgment of the district court.

                                            It is so ordered.
