FRESNO, Calif. (CN) – A California appeals court on Monday killed plans for a proposed casino near Yosemite National Forest, finding that the governor improperly concurred with a federal decision to take land not approved for gaming.
In 2012, Governor Jerry Brown concurred with a Department of Interior decision that put 305 acres off Highway 99 into a trust for the North Fork Rancheria Band of Mono Indians.
North Fork is a federally recognized tribe of around 1,900 who live in an environmentally sensitive area of the Sierra Nevada foothills. The proposed class III gambling complex, which would include almost 2,500 games, several bars and restaurants, a 200-room hotel and a 4,500 space parking lot, would be 38 miles away from the tribe’s ancestral lands.
After Brown and the tribe signed the North Fork compact to pave the way for the casino’s construction, the Legislature ratified the compact and it was signed into law in July 2013 as chapter 51 of the Statutes of 2013.
But after voters rejected the compact as Proposition 48 in November 2014, Brown backed away from negotiations.
The Picayune Rancheria of Chukchansi Indians and citizen group Stand Up For California then challenged Brown’s previous concurrence to the North Fork casino trust, claiming it was void.
Chukchansi’s Gold Resort & Casino is in the more remote Coarsegold area in the Sierra Nevada foothills, about 30 miles from the site of the proposed casino.
U.S. District Judge Beryl Howard in September dismissed many of the plaintiffs’ arguments, a decision reversed Monday by the state’s Fifth Appellate District.
Under the federal Indian Gaming Regulatory Act, gaming is prohibited on newly acquired land unless the tribe and state officials, including officials from other tribes, can show that gaming would be beneficial to the tribe and not detrimental to the surrounding community. The governor must also concur with such a finding.
Though the plaintiffs argued on appeal that the governor possesses no such concurrence power, the district court properly found this power is implicit in state law authorizing the governor to negotiate state-tribal compacts for gaming, the appellate court ruled.
But in this case voters rejected the compact to build the casino on newly acquired lands, making the compact void, and by extension, invalidating the governor’s concurrence, according to the 113-page opinion.
Arguments that the governor is entitled to exercise concurrence power as head of the state’s executive branch failed because no state law or statute explicitly grants the authority to participate in the process of taking land for gaming.
Even if the governor did have such authority, it would be limited to land already slated for gambling under a state-approved compact, which is not the case here.
“In summary, it would be perverse to find the governor has an implied authority based on an express power that the state has finally decided not to exercise, after protracted consideration by the governor, the Legislature, and the voters. It is no denigration of the governor’s authority to say he cannot exercise an implied power in a case where the voters have vetoed an exercise of the express power on which the implied power is purportedly based,” Judge M. Bruce Smith wrote for the panel.
Judges Jennifer Detjen and Donald Franson Jr. both concurred and dissented in part.
Detjen agreed with the plaintiffs that the governor had no authority to compact for the casino to begin with, calling Smith’s reliance on the voters’ veto “one step too far down the road.”
The law explicitly limits the governor’s power to compact for class III Vegas-style gaming in California to Indian lands, which do not exist here, Detjen wrote in dissent.
She compared the situation to a pet-sitting business: If a client said a dog could be walked only on the sidewalk, then the business has no authority to walk the dog where there is no sidewalk. If the business heads out on a walk without making sure there is a sidewalk but expecting one to appear around the corner, they have begun the walk without authority.
“Here too, while the governor may wish to proceed with a compact, expecting Indian lands to appear prior to any gaming occurring, the governor will be acting without authority at all times there are no Indian lands because the condition necessary to trigger the governor’s authority to compact has not arisen,” Detjen wrote.
Since Brown negotiated the compact for the proposed casino before the property had been accepted into trust, the land was not yet Indian land, and the governor exceeded his authority, Detjen said.
Judge Franson took a different approach in his dissent. He concluded that the governor has no authority to concur because neither the ballot materials for Proposition 1A, which in 2000 modified the state constitution to allow gambling on reservation lands, nor its wording indicated that it would grant the governor the authority to veto or approve off-reservation casinos.
The governor’s compacting authority is clearly established in the Indian Gaming Regulatory Act and can be used without concurrence, as seen by the many tribal-state gaming compacts negotiated using that authority. Concurrence is therefore not only legally unnecessary, Proposition 1A’s silence on it indicates that it was intentionally withheld to stop the spread of class III gaming on off-reservation lands, Franson wrote.
He agreed with Judge Smith that Brown’s 2012 concurrence was void – not because voters vetoed the North Fork compact, but because the governor never possessed the constitutional authority to concur in the first place.
The panel remanded further proceedings with directions to overrule the defendants’ and North Fork’s demurrers.
Sean Sherlock, with Snell & Wilmer, who argued for the appellants, did not immediately return emailed requests for comment Tuesday afternoon.
Messages seeking comment sent to the Attorney General’s Office were referred to the Governor’s Office, which did not immediately return them.
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