492
Syllabus
to be about half of its value, and (2) it was unfair because Hodel's intervention into the Lease adjustment process skewed the bargaining by depriving the Tribe of the 20 percent rate. These arguments fail, for they assume substantive prescriptions not found in § 396a. As to the first argument, because neither the IMLA nor any of its regulations establishes anything more than a bare minimum royalty, there is no textual basis for concluding that the Secretary's approval function includes a duty, enforceable in an action for money damages, to ensure a higher rate of return for the Tribe. Similarly, the Tribe's second argument is not grounded in specific statutory or regulatory language. Nothing in § 396a or the IMLA's implementing regulations proscribed the ex parte communications in this case, which occurred during an administrative appeal process largely unconstrained by formal requirements. Moreover, even if Deputy Assistant Secretary Fritz had rendered an opinion affirming the 20 percent royalty approved by the Area Director, the Secretary could have set aside or modified his subordinate's decision in the exercise of his authority as head of the Interior Department. Accordingly, rejection of Peabody's appeal by Fritz would not necessarily have yielded a higher royalty for the Tribe. Pp. 509-514.
263 F. 3d 1325, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens and O'Connor, JJ., joined, post, p. 514.
Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Assistant Attorney General Clark, Gregory G. Garre, Todd S. Aagaard, and R. Anthony Rogers.
Paul E. Frye argued the cause for respondent. With him on the brief were Richard W. Hughes, David O. Stewart, Samuel J. Buffone, Levon B. Henry, and Richard B. Collins.*
*V. Thomas Lankford and Terrance G. Reed filed a brief for the Peabody Coal Co. et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Jicarilla Apache Nation et al. by Jill Elise Grant; for the Mississippi Band of Choc-
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