California Wins Appeal on Tribe’s Casino Plans

     SACRAMENTO, Calif. (CN) – When it comes to dueling Indian casino resorts – at least in the Central Valley hinterlands of Madera County – 30 miles is too close for comfort.
     The Picayune Rancheria of Chukchansi Indians went to court in 2012 after California Gov. Jerry Brown signed off on federal permission for the North Fork Rancheria of Mono Indians to open its own casino, 40 miles from its tribal land and 30 miles to the west of the Chukchansi resort.
     While the Indian Gaming Regulatory Act, or IGRA, typically frowns on casinos far from rancheria land, an exception is possible if the Interior secretary finds that the resort is in the best interest of the tribe and not detrimental to the surrounding community. The governor of the state in question must then sign off on the secretary’s recommendation.
     Which is exactly what happened in this case. The Interior Department issued its environmental review for the North Fork tribe’s casino in 2009 and made its official recommendation in 2011. In 2012, Brown made his concurrence – ignoring demands by the Picayune tribe and others to conduct his own environmental review – and the Legislature ratified a tribal-state gaming compact with the North Fork tribe in 2013.
     The Picayune tribe nevertheless told the court that Brown’s concurrence amounted to “approval of a project” under the California Environmental Quality Act (CEQA), thus requiring a full independent environmental impact report before the North Fork casino to receive final approval.
     Sacramento County Superior Court Judge Michael Kenny disagreed, saying Brown is not a “public agency” under CEQA and that his concurrence with the federal plan was not subject to state environmental law.
     On appeal, the Picayune tribe argued that CEQA’s list of public agencies is not exhaustive, and that just because the governor isn’t listed doesn’t mean the office isn’t one. The tribe pointed to the official state website, which lists “Office of the Governor” as one of many state agencies.
     But the Third Appellate District found Wednesday that all the examples listed in CEQA are governmental agencies, not the officials themselves, and declined to use the state’s website as a legal definition of public agency.
     “Whatever other appellate courts may have made of other government websites in other circumstances, we do not find the listing of the Office of the Governor in a list of state agencies on the state’s website persuasive in determining whether the Legislature intended to encompass the governor in the term ‘public agency’ when the Legislature added the definition of that term to CEQA in 1972,” Judge Ronald Robie wrote for the court. “The Picayune tribe offers no evidence regarding who compiled the list on the website and indeed offers us no reason to treat the website as indicative of what the intent of the Legislature was in 1972 when the Legislature defined the term ‘public agency’ by reference to various public bodies, without mentioning any public officials or other individuals.”
     Also, the tribe sued Brown – an individual, Robie continued.
     “Notwithstanding the Picayune tribe’s contention to the contrary, the tribe did not sue a government office in this case; the tribe sued an individual – Edmund G. Brown, Jr,” the ruling states. “True, the tribe sued that individual in his capacity as the governor of California, but even in that capacity he is still an individual. He is not an ‘office,’ he is a person – the chief executive officer of the state.”
     But is the governor a public agency? The Picayune tribe argued that he must be since the Legislature carved out a number of exceptions where he doesn’t have to comply with CEQA when negotiating tribal-state compacts. But those exceptions exist not for the governor’s benefit, but so that tribes don’t have to comply with CEQA when entering into compacts, the panel said.
     “This is especially so given the Legislature’s express statement that it was granting these exemptions ‘in deference to tribal sovereignty,'” Robie wrote. “In other words, by specifying that the execution of a tribal-state compact shall not be deemed a project under CEQA, the Legislature was not necessarily releasing the governor from what the Legislature perceived was his obligation to comply with CEQA prior to the execution of those compacts. Rather, it is just as likely that the Legislature was – out of ‘deference to tribal sovereignty’ – trying to foreclose any argument that the tribes were under such an obligation.”
     In 2013, a federal judge also refused to step in and stop the North Fork tribe’s casino project, saying the Interior secretary had “considered all aspects of the problem that he was required to consider” – including harm to families and social services and a potential increase in prostitution.
     Meanwhile, the Picayune tribe is embroiled in an internal dispute over the millions its resort generates. The imbroglio has erupted in a virtual civil war, with three groups claiming leadership over the tribe – and its gaming revenue.

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