Tribe’s Gamble That Casino Land Transfer Approval Not Subject to CEQA Pays Off

by Sheppard Mullin Richter & Hampton LLP

Picayune Rancheria of Chukchansi Indians v. Brown, C074506 (9/24/2014)

In a recent Third District Court of Appeal published opinion, the court in Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (3rd. Dist. 2014) strictly interpreted the California Environmental Quality Act’s definition of “public agency,” holding that it only applies to governmental bodies or offices, and not officials or individuals.  Under this holding, Governor Brown did not need to comply with CEQA requirements (see Pub. Res. Code §§ 21000 et seq.) as a prerequisite to concurring with the Secretary of the Interior’s determination that the North Fork Rancheria of Mono Indians’ (the “North Fork Tribe”) development of a new Indian gaming establishment would benefit the North Fork Tribe and not be detrimental to the surrounding community.

The impetus for this litigation occurred nearly a decade ago when the North Fork Tribe submitted a request to the United States Department of Interior asking the Department to acquire approximately 305 acres of land in Madera County in order to develop a resort and casino to be owned and operated by the North Fork Tribe.  The land on which the North Fork Tribe wanted to build its casino is approximately 40 miles from the North Fork Tribe’s rancheria lands and approximately 30 miles away from another casino belonging to the Picayune Rancheria of Chukchansi Indians (the “Picayune Tribe”).

Under the Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq.), casino gaming on lands acquired for a tribe by the Secretary of the Interior is generally prohibited, subject to certain exceptions.  (25 U.S.C. § 2719(a).)   After the Department conducted an environmental review of the casino project under federal law and issued a final environmental impact statement under the National Environmental Protection Act, the Secretary of the Interior approved the North Fork Tribe’s request under one such exception, which states that if the Secretary of the Interior, “after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary’s determination.”  (25 U.S.C. 2719(b)(1)(A).)  In September 2011, the Secretary of the Interior requested that Governor Brown concur with the Department’s determination that the gaming established would be in the best interest of the North Fork Tribe and that it would not be detrimental to the surrounding community.  Governor Brown, without conducting a CEQA review, issued his concurrence and entered into a tribal state gaming compact with the North Fork Tribe on August 30, 2012.

The Picayune Tribe quickly brought suit against the Governor and others in the form of a petition for writ of mandate and complaint for injunctive relief, alleging, among other things that Governor Brown’s concurrence constituted an “approval” of a “project” under CEQA that “must be the subject of the CEQA environmental review process.”  The Superior Court of Sacramento held that as a matter of law, the Governor is not a “public agency” for CEQA purposes.

The court of appeal  affirmed.  Despite the California Supreme Court’s holding in Friends of Mammoth v. Bd. of Supers. (1972) 8 Cal.3d 247 that CEQA must be “interpreted in such a manner as to afford the fullest possible protection to the environment within the reasonable scope of statutory language,” the court observed that, following this case, the Legislature drastically reduced this carte blanche authority.  The court noted that the Legislature made clear that “courts…shall not interpret [CEQA] or the state guidelines…in a manner which imposes procedural or substantive requirements beyond those explicitly stated in this division or the state guidelines.”  (Pub. Res. Code § 21083.1.)  The court also highlighted the language in Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502 that “the literal, i.e., explicit, approach to statutory construction is [now] mandatory under CEQA.”  (Id. at 1515.)

Pursuant to these precedents, the court determined it was clear that the term “public agency” under CEQA includes only governmental bodies or offices, and not officials or individuals.  Any other interpretation would “violate the explicit approach to the interpretation of CEQA compelled by CEQA section 21083.1, which [the court is] not at liberty to do.” In reaching this determination, the court harmonized other statues exempting certain actions related to State-Tribal compacts from adhering to CEQA procedures.  Because the Picayune sued the Governor, who is an individual, and not a governmental office or body, the lower court’s holding was upheld.

The case is important for its express holding that the Governor is not considered a “ public agency” under CEQA and is therefore not subject to its requirements.  The court also hints at a few underpinnings of judicial CEQA reform by recognizing that Friends of Mammoth’s expansive reading of CEQA’s reach was superseded long ago in favor a “textual” approach to CEQA construction and interpretation, particularly where project opponents allege procedural violations of CEQA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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