MICCOSUKEE TRIBE v. U.S. ARMY CORPS OF ENG

22 Stat, at 3581 (emphasis added).

On October 24, 2008, the Tribe filed suit against the Corps and the U.S. Fish and Wildlife Service, alleging violations of the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (ESA). We refer to this case as the ESA case. The lawsuit alleged that a biological opinion issued by the Fish and Wildlife Service failed to fully address the bridge's threat to the continued survival of two endangered bird species, the snail kite and the wood stork. There are two wood stork colonies close to the planned bridge route. Like the NEPA suit, the ESA suit sought a court order blocking construction of the bridge until the federal government complied with the law.

Meanwhile, the Corps moved to dismiss the NEPA suit, citing § 153 of Congress's continuing appropriations act. On October 31, 2008, the NEPA court denied the Corps's motion to dismiss the Tribe's suit for lack of subject matter jurisdiction, holding that § 153 was not specific enough to exempt the Corps from NEPA. Section 153 neither mentioned NEPA by name, nor included the key phrase "notwithstanding any other provision of law," which the court described as "the language usually associated with an exemption or limited repeal." D.E. 59 at 5. Shortly thereafter, on November 13, 2008, the NEPA court granted in part the Tribe's motion for a preliminary injunction to enjoin the Corps from building the bridge until it complied with environmental procedures.

d. Congress's Omnibus Appropriations Act of 2009

On March 11, 2009, Congress passed the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 (Omnibus Act). The Omnibus Act included this passage:

CONSTRUCTION (INCLUDING RESCISSION OF FUNDS)

For construction, improvements, repair or replacement of physical facilities, including a portion of the expense for the modifications authorized by section 104 of the Everglades National Park Protection and Expansion Act of 1989, $233,158,000, to remain available until expended:

Provided, That funds appropriated in this Act, or in any prior Act of Congress, for the implementation of the Modified Water Deliveries to Everglades National Park Project, shall be made available to the Army Corps of Engineers which shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) consistent with the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008. . . .

123 Stat, at 708 (emphases added). In the following discussion, we refer to the phrase "notwithstanding any other provision of law" as the notwithstanding clause. We call the phrase "immediately and without further delay" the immediacy clause.

On June 16, 2009, the NEPA court, in response to the Corps's renewed motion to dismiss for lack of subject matter jurisdiction, held that the Omnibus Act is an "explicit exemption" from NEPA and FACA that moves the bridge "from the reach of such statutes." D.E. 128 at 7. The court found it significant that Congress added the same notwithstanding clause that the court had found lacking in the earlier appropriations act. The NEPA court also rejected the Tribe's constitutional challenges to the Omnibus Act: vagueness, delegation, separation of powers, bill of attainder, due process, and equal protection. The NEPA court dismissed the suit for lack of subject matter jurisdiction, and dissolved the preliminary injunction that it had earlier entered. The Tribe timely appealed.

The Corps filed a copy of the NEPA court's dismissal with the ESA court. On August 31, 2009, the ESA court adopted the reasoning of the NEPA court to conclude it too lacked subject matter jurisdiction over the Tribe's claims. The ESA court also invoked the doctrine of collateral estoppel to bar the Tribe from relitigating its constitutional challenges to the Omnibus Act because the NEPA court had already rejected them. The ESA court granted the United States' motion to dismiss the suit for lack of subject matter jurisdiction. The Tribe filed its notice of appeal the next day.

II. Standard of Review

The district court's grant of a motion to dismiss for lack of subject matter jurisdiction presents a legal question that we review de novo. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citation omitted). "In construing a statute we must begin, and should often end . . . with the language of the statute itself." Kehoe v. Fid. Fed. Bank Trust, 421 F.3d 1209, 1212 (11th Cir. 2005) (citation omitted). We review the district court's invocation of collateral estoppel de novo. United States v. Weiss, 467 F.3d 1300, 1308 (11th Cir. 2006) (citation omitted).

III. Types of Repeal

The main question here is whether the Omnibus Act modifies the NEPA, FACA, and ESA for purposes of the Tribe's lawsuits, thereby depriving the federal courts of subject matter jurisdiction to hear the Tribe's claims. Besides being the principal issue of this appeal, the question and the answer also control the outcome in the related appeal No. 09-11891 (the DOT case). The focus is on the interaction between the Omnibus Act and previous acts of Congress. The term for this dynamic is repeal — whether and how a later act of Congress modifies an earlier one. Another name for it is exemption.

The Tribe claims that the Omnibus Act effects no explicit repeal here because it fails to mention any statute it is repealing. The Tribe also claims that the Corps has failed to meet the high standard for showing that an appropriations act effects an implied repeal. The Corps counters that the plain language of the Omnibus Act, in particular Congress's addition of the notwithstanding clause, makes it clear that Congress intended to relax its existing environmental statutes in order to get the bridge built as quickly as possible.

At oral argument, counsel for the Tribe said a repeal has to be either express or implied. While that statement may be true, it does not necessarily follow, as counsel claimed, that there are only two modes of repeal. Supreme Court and Eleventh Circuit cases, and Sutherland Statutes and Statutory Construction, seem to identify at least three: explicit repeals, general repealing clauses, and implied repeals. We review the characteristics of each in turn.

Courts have noted that repeals go by various names, and moreover that the boundaries between types of repeals are not written in stone. See, e.g., Bald Eagle Ridge Prot. Ass'n, Inc. v. Mallory, 119 F.Supp.2d 473, 480 (M.D.Pa. 2000) (noting that repeals can be called "repeal by implication, exemption, suspension, or any other word or phrase which may be used to characterize this action").

a. Explicit Repeals

An explicit repeal occurs when the later statute explicitly identifies the earlier statute it is repealing. 1A Sutherland Statutes and Statutory Construction § 23:7 (7th ed. 2010). Congress can accomplish this identification by citing the earlier statute or referring to its subject matter, id., or even by giving the style and case number of a lawsuit that is filed under the earlier statute, Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440, 112 S.Ct. 1407, 1414, 118 L.Ed.2d 73 (1992).

The repealing statute in Seattle Audubon Society also contained an explicit jurisdiction-stripping provision. 503 U.S. at 435 n. 2, 112 S.Ct. at 1411 n. 2 (quoting Pub.L. No. 101-121, § 318(b)(6)(A), 103 Stat. 701, 747). The Tribe argues that because the Omnibus Act lacked similar jurisdiction-stripping language, the district courts erred in dismissing the lawsuits. But neither Seattle Audubon nor any other case cited by the Tribe makes such language a requirement for an explicit repeal.

Congress walks a fine line in terms of what it may do here and still uphold the separation of powers. Congress may not interfere in the judicial process. It may not dictate the result for a particular case, or tell an Article III court how to apply the law to specific facts. See Nichols v. Hopper, 173 F.3d 820, 823 (11th Cir. 1999); Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1573 (11th Cir. 1992).

But Congress is always free to amend the law, even if doing so has the effect of extinguishing a pending case. See Seattle Audubon Society, 503 U.S. at 440, 112 S.Ct. at 1414; Scientific-Atlanta, 971 F.2d at 1573. And among the areas in which Congress legislates is the jurisdiction of the federal courts. Congress often exercises its power both to confer jurisdiction, and to deny it. See Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S.Ct. 1483, 1501, 128 L.Ed.2d 229 (1994). "[T]here is an important difference between Congress telling this court how it should decide a particular case (expressly prohibited by United States v. Klein, 80 U.S. (13 Wall.) 128, 147, 20 L.Ed. 519 (1871)) and Congress withdrawing jurisdiction to decide a particular case. . . ." Nat'l Coal. to Save Our Mall v. Norton, 161 F.Supp.2d 14, 22 (D.D.C. 2001).

b. General Repealing Clauses

To effect an explicit repeal, a statute must identify the repealed statute. If it does not, a statute may still sometimes effect a repeal through the use of a "general repealing clause." Sutherland § 23:8. One example of such a clause is "[n]otwithstanding any other Federal law." United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) (en banc) (quotation omitted). The Supreme Court has found these phrases have the power to override other law:

As we have noted previously in construing statutes, the use of such a "notwithstanding" clause clearly signals the drafter's intention that the provisions of the "notwithstanding" section override conflicting provisions of any other section. Likewise, the Courts of Appeals generally have interpreted similar "notwithstanding" language to supersede all other laws, stating that [a] clearer statement is difficult to imagine.

Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 1903, 123 L.Ed.2d 572 (1993) (citations, omission, and quotations omitted) (interpreting the clause "[n]otwithstanding any other provisions of this Contract" in a Section 8 landlord contract).

Our Court has previously read these clauses the same way. In Castro v. Sec'y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006) (per curiam) (citing Cisneros), our Court held that the same general repealing clause at issue here, "notwithstanding any other provision of law," worked an exemption to an earlier statute concerning hiring standards for TSA screeners.

In the interest of precision, we note that the repealing statute at issue in Castro contained two general repealing clauses: "Notwithstanding any other provision of law," 49 U.S.C. § 44935 note, and "Notwithstanding any provision of law," 49 U.S.C. § 44935(e)(2)(A), (f)(1). See Castro, 472 F.3d at 1336-37. We do not dwell on the slight difference.

In Castro, the plaintiff sued the Department of Homeland Security (DHS), claiming that it violated the Rehabilitation Act of 1973 by citing his history of seizures as a reason not to hire him. The district court granted DHS's motion to dismiss for failure to state a claim, finding that the Aviation and Transportation Security Act (ATSA) that Congress passed after the 9/11 terrorist attacks exempted DHS from the nondiscrimination provisions of the Rehabilitation Act.

This Court affirmed, holding that the "notwithstanding" clause was "Congress's indication that the statute containing that language is intended to take precedence over any preexisting or subsequently-enacted legislation [on the same subject]." Id. (omission and citation omitted). While this plain language alone was enough to effect a repeal, this Court also noted that ATSA specified physical requirements for security screeners — "color perception, visual and aural acuity, physical coordination, and motor skills," 49 U.S.C. § 44935(f)(1)(B) — that on their face were "inconsistent" with the Rehabilitation Act's prohibition of discrimination on the basis of physical disabilities, 29 U.S.C. § 794(a). 472 F.3d at 1337-38. Castro directs our inquiry here both for its evaluation of the notwithstanding clause, and its plain-language approach to statutory construction.

The Ninth Circuit has read this phrase the same way. In doing so, that court emphasized the importance of statutory context. Hearing an appeal to an environmental lawsuit, Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1169 (9th Cir. 2007), the Ninth Circuit held that the phrase "[n]otwithstanding any other provision of law" in an omnibus tax bill exempted the United States from NEPA and ESA for purposes of lining the All American Canal "without delay."

The Ninth Circuit noted that the notwithstanding clause is not always applied in blanket fashion. "We have repeatedly held that the phrase `notwithstanding any other provision of law' is not always construed literally. Rather, when the phrase is used, we have determined its reach by `taking into account the whole of the statutory context in which it appears.'" Id. at 1168 (internal quotations and citations omitted).

Commentators likewise have noted the difficulty of interpreting the notwithstanding clause. The clause "notwithstanding any other provision of law" is "the statutory equivalent of a parent telling a child `I'm serious,' or `I really mean it.' Despite the admonition, courts and administrators still must determine what the underlying directive means. And, ordinarily, there will still be other provisions of law that apply; the trick is to determine which ones." Yule Kim, Cong. Research Serv., Statutory Interpretation: General Principles and Recent Trends 35 (2008), available at http://assets.opencrs.com/rpts/97-589_20080831.pdf:

In this sense, the statutory phrase is analogous to a parent telling a child "don't under any circumstances leave the house until I return." The parent doesn't really mean for the child to remain under any and all circumstances, but instead assumes that the child will try to get out if the house catches on fire or some other emergency occurs.

Id. n. 200.

Further complicating matters is the question of whether a general repealing clause requires the finding of a conflict between the newer and older statutes. Some courts base their finding of repeal via a general repealing clause on an "irreconcilable conflict." See, e.g., Norton, 161 F.Supp.2d at 21; Sutherland § 23:8 (noting that a general repealing clause "has sometimes been held to repeal because an act conflicts"). In Castro, our Court noted that the two statutes were "inconsistent," but said the plain language of the notwithstanding clause was by itself sufficient to support a repeal. 472 F.3d at 1337.

We acknowledge that an open-ended general repealing clause carries the potential to create confusion about precisely which laws, if any, it is repealing. A general repealing clause operates in the twilight between the clearer extremes of explicit and implied repeals. A general repealing clause is explicit only in the sense that it is announcing a repeal of "all law" or "any law" or "federal laws" — its actual reach depends on an analysis of the statutory language relevant to it. Without that careful analysis, a general repealing clause is a blunt tool prone to repeal too little or too much.

For example, courts and commentators have long noted that a general repealing clause that repeals all "inconsistent law" is basically a logical nullity, because the doctrine of implied repeals ( see "Implied Repeals," Part III.c, infra) already neutralizes any inconsistent earlier law in favor of the newer repealing law. See Sutherland § 23:8 ("An express general repealing clause to the effect that all inconsistent enactments are repealed should legally be a nullity."); Great N. Ry. Co. v. United States, 155 F. 945, 947 (8th Cir. 1907) (Van Devanter, J.) (citations omitted) ("[T]he general repealing clause in section 10, `All laws and parts of laws in conflict with the provisions of this act are hereby repealed,' . . . repeals nothing which would not be repealed equally without it").

c. Implied Repeals

A statute effecting an implied repeal, also known as a repeal by implication or implicit repeal, does not identify the statute it is repealing. Nor does it have a general repealing clause, like the notwithstanding clause at issue here. What is key is the legislature's demonstration of intent to repeal a pre-existing law. Sutherland § 23:9. Congress's intent to effect an implied repeal can be inferred when a later statute conflicts with or is repugnant to an earlier statute; or when a newer statute covers the whole subject of the earlier one, and clearly is intended as a substitute. See United States v. Devall, 704 F.2d 1513, 1518 (11th Cir. 1983); see also Tug Allie-B, Inc. v. United States, 273 F.3d 936, 951 (11th Cir. 2001) (Black, J., concurring) (listing cases requiring a "positive repugnancy" between two statutes as a precondition for finding an implied repeal). Therefore for an implied repeal, a conflict is a minimum requirement, rather than the helpful sign of legislative intent supporting a general repealing clause.

As stated before, courts do not use consistent terms to describe these repeals. For example, a Pennsylvania district court found a repeal by implication of NEPA when a federal highway statute used the general repealing clause "notwithstanding any other provision of law." Mallory, 119 F.Supp.2d at 484.

The Eleventh Circuit has held that when two statutes conflict, the later-enacted statute controls to the extent it conflicts with the earlier-enacted statute. Nguyen v. United States, 556 F.3d 1244, 1252-53 (11th Cir. 2009). Moreover, a specific statutory provision trumps a general one. Id. at 1253. The conclusion that two statutes conflict, however, is one that courts must not reach lightly. If any interpretation permits both statutes to stand, the court must adopt that interpretation, "absent a clearly expressed congressional intention to the contrary." Garfield v. NDC Health Corp., 466 F.3d 1255, 1266 (11th Cir. 2006). Courts must first "assiduously attempt" to try to construe two statutes in harmony before concluding that one impliedly repeals the other. Tug Allie-B, 273 F.3d at 952.

Because a repeal by implication requires the most speculation about the intent of Congress, there is a presumption against finding one. TVA v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978) (concluding that Congress's repeated appropriations bills funding construction of a dam did not impliedly repeal ESA protection for a new species of fish endangered by the project); Patel v. Quality Inn S., 846 F.2d 700, 704 (11th Cir. 1988) ("Only when Congress' intent to repeal or amend is clear and manifest will we conclude that a later act implicitly repeals or amends an earlier one."); see also Tug Allie-B, 273 F.3d at 959 (noting the "principles of judicial restraint and separation of powers which underlie the particularly high standard required for an implicit repeal").

This presumption against repeal by implication applies with "even greater force" to an appropriations bill, because legislators are entitled to assume that they only appropriate money for lawful purposes. TVA, 437 U.S. at 190, 98 S.Ct. at 2300. Congress has the power to effect a repeal through an appropriations bill — Congress just needs to be clear it is doing so. United States v. Will, 449 U.S. 200, 222, 101 S.Ct. 471, 484, 66 L.Ed.2d 392 (1980).

IV. Analysis

In this case, we hold that the notwithstanding clause of the Omnibus Act, analyzed within its surrounding statutory language, repeals the relevant environmental laws so as to deprive the federal courts of subject matter jurisdiction over the Tribe's suits. The district court's finding that there was an "explicit exemption" from the environmental laws, while yielding the correct result, blurred the lines between the categories of repeal established in the cases. We believe it is correct and clearer to identify as such the general repealing clause that is at work here. Our analysis of the Omnibus Act proceeds in three parts. First, we measure the effect of the notwithstanding clause. Second, we consider the immediacy clause. Lastly, we examine the imperative "shall," which deprives the Corps of discretion and therefore strengthens the case against judicial review here.

a. Notwithstanding Clause

In the Omnibus Act, the notwithstanding clause splits the verb phrase "shall . . . construct or cause to be constructed." Therefore, the clause speaks directly to any laws regulating the construction of the bridge. The environmental laws clearly applied to such a bricks-and-mortar project. To the extent they did, the notwithstanding clause repeals them.

We base our conclusion in the statutory language in which the notwithstanding clause appears. As the Ninth Circuit noted in Consejo, a general repealing clause must be read in the context of the entire statute. Indeed, this point highlights the weakness in the Tribe's argument that the notwithstanding clause works only to repeal appropriations laws relating to the bridge. The Tribe argues that the primary purpose of this bill is to appropriate money for improvements to Everglades National Park, and that the only grammatical effect of the " Provided" clauses that follow the main clause is to qualify the appropriation of money. Therefore, the Tribe concludes, a notwithstanding clause located within a "Provided" clause can only repeal appropriations laws.

The district court also based its finding of an exemption on the observation that Congress included the notwithstanding clause in the Omnibus Act after the district court pointed out the clause's absence from Congress's earlier-enacted § 153. Inclusion of the notwithstanding clause the second time around "is not coincidental but rather underscores the Court's conclusion here regarding Congress's clear intent." D.E. 128 at 6. While we prefer to ground our holding in the plain language of the statute, we acknowledge the common-sense appeal of this argument. After all, amending statutes is one of Congress's time-honored ways of surmounting judicial interpretations with which it disagrees. See Scientific-Atlanta, 971 F.2d at 1571-72 n. 4. And if successive drafts of a statute provide fodder for proponents of legislative history, see Sutherland § 45:6 n. 5, then successive statutes furnish better evidence still.

While this argument has superficial appeal, its focus is fatally overbroad. The more specific and grammatically relevant analysis of the notwithstanding clause is that it speaks to the verb construct, rather than to the syntactically more distant language of appropriating. The Tribe has no good rejoinder to this point.

Moreover, the Omnibus Act uses broad language here: "notwithstanding any other provision of law." 123 Stat, at 708 (emphasis added). Nothing about the word "any" suggests that "law" should refer only to appropriation laws, rather than "any" laws.

Further undercutting the Tribe's argument is the fact that environmental laws, not budgetary ones, were the legal sticking point for the bridge in the run up to Congress's passage of the Omnibus Act. There is accordingly no circumstantial case that the notwithstanding clause was inserted solely to repeal appropriations laws. The Tribe asks us to consider the implications of Congress repealing all laws potentially bearing on the bridge — for example the wage and hour laws — but answering that question is not necessary for our decision here. Our Court in Castro previously declined to answer the same broader question. 472 F.3d at 1337 n. 1.

Our finding of a repeal squares with our precedent in Castro. If Castro were to call our result an exemption rather than repeal via a general repealing clause, the functional difference, if any, would be slight. At oral argument, counsel for the Tribe sought to distinguish Castro by noting that both the statutes there spoke to the same subject matter, whereas here a budget law would repeal environmental laws. This objection is unavailing. Even if one grants the Tribe's assumption that the Rehabilitation Act and ATSA do address the same subject matter, there is nothing in theory that prevents a budget bill from discussing a public works project in great detail, as the Omnibus Act here well illustrates.

The Omnibus Act sufficiently specifies its subjects, and uses precise language to identify the bridge. The cursory labels applied to a bill — "budget," "defense," "health care" — do not dictate the repeal analysis. The notwithstanding clause therefore repeals the environmental laws under which the Tribe filed suit.

b. Immediacy Clause

In the Omnibus Act, Congress orders the Corps to build the bridge "immediately and without further delay." Like the notwithstanding clause, this immediacy clause also splits the verb phrase "shall . . . construct." Our cases require us to read such simple English simply. "In the absence of a statutory definition of a term, we look to the common usage of words for their meaning." CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001) (quotation omitted).

The simplest reading of this plain language is that Congress wanted the bridge built now. Congress sought to facilitate this goal by repealing the environmental laws that it had previously passed. Allowing further administrative challenges to the bridge under those environmental laws, more than two decades after Congress passed legislation seeking to improve water flows in the Everglades, would further delay the speedy completion of the bridge and frustrate Congress's clear intent.

In this way, the immediacy clause creates a direct conflict with the time-consuming administrative review mandated by the environmental laws, and therefore the environmental laws must yield. This finding of a conflict cements our conclusion that Congress effected a repeal here. We reach this conclusion without deciding the issue of whether finding a conflict is necessary for the operation of a general repealing clause. c. Mandatory Language

In the Omnibus Act, Congress directs that the Corps shall build the bridge as described in the June 2008 LRR/EA report. This command denies the Corps any discretion in the matter. This lack of discretion is a third reason why the federal courts have no subject matter jurisdiction over the Tribe's suits. Claims brought against an agency under NEPA, FACA, or the ESA proceed only when the agency has choices in a matter — here, choices between alternatives that vary in their environmental friendliness. Here, no discretion means no jurisdiction.

Procedural statutes like NEPA do not apply when an agency has no discretion to act or not to act on a given matter. Dep't of Transp. v. Public Citizen, 541 U.S. 752, 770, 124 S.Ct. 2204, 2217, 159 L.Ed.2d 60 (2004) (holding that NEPA does not apply to an agency that lacks statutory authority to act in the relevant manner); Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 669, 127 S.Ct. 2518, 2536, 168 L.Ed.2d 467 (2007) (same holding under the ESA); Florida Key Deer v. Paulison, 522 F.3d 1133, 1144 (11th Cir. 2008) (discussing Public Citizen) ("[A]n agency cannot be held accountable for the effects of actions it has no discretion not to take."). Moreover, the tension between the Corps's lack of discretion under the "shall" of the Omnibus Act, and the environmental statutes' presumption of agency discretion, is an additional conflict between the statutes that we conclude supports a finding of repeal here.

The Omnibus Act of course refers to the LRR/EA, which in turn contains oblique references to NEPA and ESA. These stray mentions are descriptive rather than prescriptive, and they are not to be mistaken for a grant of Article III jurisdiction. Quite the opposite obtains. When a legislature writes a set of administrative findings into law, the administrative findings become legislative ones, and thus are no longer reviewable through the ordinary avenues of administrative law. As one court put it, in this posture "the record of decision became a legislative action and not an administrative action. In effect, there is no longer an administrative action for us to review." Mallory, 119 F.Supp.2d at 481.

The LRR/EA states that the environmental data on the bridge had been compiled "in compliance with NEPA," LRR/EA at 5-56, and moreover that the bridge "would comply" with the ESA, LRR/EA at 5-55.

Counsel for the Tribe conceded at oral argument that it had waived this argument on appeal because it had failed to argue it to the district courts below. We generally do not consider arguments raised for the first time on appeal. Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1215 n. 8 (11th Cir. 2010) (citation omitted). We note it now only because it falls within the sweep of our plain-language analysis of the Omnibus Act. The Tribe conceded moreover that it waived a second argument by failing to make it to the courts below: that any repeal or exemption found within an appropriations bill can last only one year because of the annual nature of the appropriations cycle.

Mallory was a Pennsylvania district court decision that concluded that the notwithstanding clause in a transportation bill incorporating the administrative record of decision effected an implied repeal of NEPA and the Clean Water Act for a federal interstate highway project. Mallory went on to state: "That is, by making the administrative decision a legislative decision, Congress has barred plaintiffs from seeking review of the administrative decision. Moreover, the action removes from the administrative agencies any discretion they may have had: they now are required by statute to act in a predetermined manner." Id. at 482.

We believe the analysis in Mallory applies here. The lack of discretion in Congress's command to build the bridge precludes the applicability of statutes like NEPA or the ESA, which presume agency discretion as a starting point. And, the adoption of the administrative finding as a legislative finding bars judicial review of agency action.

The NEPA court, clearly aware of the high legal standard for an implied repeal of NEPA and FACA, concluded that the Omnibus Act effected an "explicit exemption . . . from the reach of such statutes." D.E. 128 at 7. It did this even though the Omnibus Act does not explicitly mention any statute it is repealing. The Tribe correctly points out that the Omnibus Act language does not meet the generally understood test for an explicit repeal. For the reasons we have already stated, we prefer to describe this repeal as one resulting from a general repealing clause. Moreover, for the reasons stated by the district court in the NEPA case, we find that the Tribe's constitutional challenges to the Omnibus Act are without merit. We therefore affirm the district courts' dismissals for lack of subject matter jurisdiction. Therefore, we affirm the judgments of the district courts.

We also reject the Tribe's request for us to apply the rule of construction that ambiguous statutes must be read in the Indians' favor because the Omnibus Act is an unambiguous statute. See, e.g., Fla. Paraplegic Ass'n, Inc. v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1131 (11th Cir. 1999).

Any possible error in the ESA court's application of collateral estoppel to bar the Tribe's constitutional claims is harmless given this panel's determination of the same constitutional issues on the merits.

AFFIRMED.