(Contra Costa County Super. Ct. No. CIV MSC07-01090) Trial Court: Contra Costa County Superior Court Trial Judge: Hon. Barbara Z£ñiga.
The opinion of the court was delivered by: Dondero, J.
CERTIFIED FOR PUBLICATION
Defendants the City of Richmond and the City Council of the City of Richmond (City) appeal the judgment granting a peremptory writ of mandate invalidating a municipal services agreement (MSA) entered into by the City and the Scotts Valley Band of Pomo Indians of California (Tribe). The trial court concluded the City violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) when it approved the MSA.*fn1 We reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Tribe is a federally recognized Indian tribe whose status was terminated in 1965 and restored by the Secretary of the Interior (Secretary) in 1992. As a result of the 1965 termination, the Tribe was divested of its tribal lands. In January 2005, the Tribe submitted an application requesting the Secretary acquire 29.87 acres in unincorporated west Contra Costa County in trust for the benefit of the Tribe.*fn2 The proposed site is adjacent to the City of Richmond. The Tribe plans to use the site to develop, construct and operate a Class III gaming facility, consisting of a 225,000-square-foot structure that would house, among other things, 2,000 gaming machines and 50 gaming tables.*fn3
In February 2006, the Tribe released a Draft Environmental Impact Statement (DEIS) prepared pursuant to the federal National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
On April 17, 2006, representatives from the City met with the Tribe to begin discussions on entering into an agreement regarding the provision of municipal services to the Tribe.
On April 28, 2006, the City submitted comments regarding the DEIS to the U.S. Department of the Interior's Bureau of Indian Affairs (BIA).
On May 10, 2006, the City and the Tribe formally entered into an agreement to negotiate the MSA.
On September 27, 2006, the Tribe responded to the City's comments on the DEIS.
On November 14, 2006, City staff submitted a report to the City Council outlining key provisions of the proposed MSA. In the report, staff noted that it was unknown whether the federal government would approve the Tribe's application to acquire the proposed casino site. The impact that a state tribal compact would have on the Tribe's obligations regarding the casino was also unknown.*fn4 If approved, staff predicted the casino would "have a tremendous impact on the surrounding residents and business." As the City would not have any say over the federal or state decisions concerning the Tribe's casino, staff recommended that the City proceed with the MSA to secure funding in order to mitigate the casino's direct impact, as well as to improve services throughout the City to mitigate indirect impacts. Staff cautioned that if an MSA was not approved, the City's opportunity to influence the casino project and receive mitigation in the future could be "severely limited."
On November 21, 2006, the City Council voted to approve the MSA. The approval resolution includes a statement that the federal, state, and City actions associated with the casino are not "projects" of the City within the meaning of CEQA.
On December 27, 2006, the City and the Tribe executed the MSA. The MSA provides that the City will receive, in exchange for the provision of specified City services: (1) a nonrecurring payment of $8,234,500, $7.1 million of which is earmarked for fire protection and the remainder of which is earmarked for police and public works, (2) an annual contribution of $6 million in years one and two, $8 million in years three and four, $9 million in years five and six, and $9 million adjusted annually by the Consumer Price Index (CPI) in years seven to 20, and (3) an annual payment of $7,459,700, adjusted annually by the CPI, for the 20-year term of the MSA, intended to fund salaries for new police, fire, and public works personnel and equipment. The City also agreed to support the Tribe's fee-to-trust application. The City disavowed any commitment to make physical changes to the environment as a result of the agreement, but indicated an intent to comply with CEQA in the future if necessary.
On July 26, 2007, the Parchester Village Neighborhood Council, the Citizens of East Shore Parks, Sustainability, Parks, Recycling and Wildlife Defense Fund, and Whitney Dotson (plaintiffs) filed a petition for writ of mandate and a complaint for declaratory and injunctive relief against the City. Plaintiffs contended the MSA was unlawful because the City was required to conduct an environmental review under CEQA before entering into the agreement. They claimed the City "violated CEQA by improperly determining that their approval of the MSA did not constitute the approval of a project subject to CEQA and that their actions were exempt from CEQA."
On September 2, 2008, the trial court issued a final ruling adopting its tentative ruling in favor of plaintiffs.
On November 7, 2008, the trial court filed its judgment for plaintiffs.
On November 14, 2008, the trial court filed its peremptory writ of mandate, requiring the City to set aside its approval of the MSA. This appeal followed.