United States District Court, E.D. California
ORDER DENYING PUTATIVE INTERVENOR DEFENDANT'S
MOTION TO INTERVENE (DOC. 31) ORDER REQURING BRIEFING ON
WHETHER THE COURT SHOULD STAY THIS ACTION
North Fork Rancheria of Mono Indians of California
("North Fork") has obtained judgment on the
pleadings against the State of California ("State"
or "California") based on the failure of the State
to negotiate with the tribe for the purpose of entering into
a Tribal-State compact governing the conduct of class III
gaming activities as required by the Indian Gaming Rights Act
("IGRA"), see 25 U.S.C. §
2710(d)(3)(A), after the California electorate voted down
Proposition 48, the referendum that would have ratified the
gaming compact between North Fork and California. Doc. 31.
The Picayune Rancheria of Chukchansi Indians
("Chukchansi") has filed a motion to intervene in
this suit as a matter of right, or in the alternative,
permissively. Doc. 25. For the following reasons, this Court
will deny Chukchansi's motion to intervene.
on the concerns Chukchansi has presented, the Court will
permit the parties, and Chukchansi as amicus curiae,
to brief the issue of whether a stay should be imposed.
Court set forth a detailed summary of the background relevant
to North Fork's Indian Gaming Regulatory Act
("IGRA") claim in its Order dated November 13,
2015. Doc. 25. Here, the Court will provide the facts
relevant to the United States of American having taken the
Madera parcel into trust for North Fork,  Assembly Bill
277, and Proposition 48.The Madera Parcel Fee-to-Trust and
IGRA Two-Part Gaming Determinations The Indian
Reorganization Act ("IRA"), authorizes the
Secretary of the Interior to acquire an "interest in
land … within or without existing reservations
… for the purpose of providing lands for
Indians." 25 U.S.C. § 465.
precludes gaming on lands acquired by the Secretary of the
Interior in trust for a tribe after October 17, 1988, except
when 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 be in the best interest of the Indian tribe and
its members, and 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(a) & (b)(1)(A).
the North Fork Tribe, on September 1, 2011, the Secretary of
the Interior made the two-part determination under IGRA that
gaming on the Madera parcel would be in the best interest of
North Fork and not detrimental to the community. Doc. 1-4.
The Governor of the State of California gave his concurrence
on August 30, 2012. Doc 1-5 at 2-3. Next, on November 26,
2012, the Secretary of the Interior made the decision to take
the Madera parcel into trust for North Fork under the IRA.
See 77 Fed. Reg. 71, 611. The land was actually
accepted by United States in Trust for North Fork on February
5, 2013. Doc. 1-12 at 4. The gaming eligibility and
fee-to-trust determinations by the Secretary of the Interior
are both challenged as invalid in the United States District
Court for the District of Columbia, in Stand Up for
California v. United States Department of the Interior,
D.D.C. Case Nos. 12-cv-2039, 12-cv 2071 ("The District
of Columbia Action"). The Governor of the State of
California's concurrence is challenged in the California
Fifth District Court of Appeal, in Stand Up for
California v. State of California, 5th DCA Case No.
California Legislative Counsel's Digest describes, in
relevant part, the impact that AB 277: if passed, the
"bill would ratify the tribal-state gaming compact
entered into between the State of California and the North
Fork Rancheria Band of Mono Indians, executed on August 31,
2012…. The bill would provide that, in deference to
tribal sovereignty, certain actions are not projects for
purposes of [the California Environmental Quality Act
("CEQA")]." Legis. Counsel's Dig., Assem.
Bill. No. 277 (2013-2014 Reg. Sess.). Similarly, the language of
AB 277 purports to ratify "[t]he tribal state gaming
compact … between the State of California and …
North Fork…." AB 277 (Hall), 2013-2014 Leg. Sess.
(Cal. July 3, 2013) chaptered at 2013 Stat. Ch. 51;
Cal. Govt. Code § 12012.59. It also purports to exclude
some actions-for example, execution of a gaming compact,
execution of agreements between a tribe and the Department of
Transportation, etc.-from the reach of CEQA. Id.
was passed by the California Assembly on May 2, 2013,
California Assembly Journal, 2013-2014 Reg. Sess., No. 65 at
1224-1225, and the Senate on June 27, 2013, California Senate
Journal, 2013-2014 Reg. Sess., No., 98, at 1581-1582. AB 277
was signed by the Governor on July 3, 2013 and chaptered by
the then-Secretary of State on the same date. AB 277 (Hall);
2013 Stat. Ch. 51. The then-Secretary of State forwarded the
Tribal-State Compact to the United States Secretary of the
October 22, 2013, the Assistant Secretary of the Interior,
Bureau of Indian Affairs, issued notice that the compact
between the State and North Fork was approved (to the extent
that it was consistent with IGRA). Notice of Tribal-State
Class III Gaming Compact taking effect, 78 FR 62649-01 (Oct.
19, 2013, a ballot summary and title were issued by the
Attorney General of California's office for what would be
commonly known as California Proposition 48 - Referendum on
Indian Gaming Compacts (2014). On October 1, 2013, proponents of
the referendum submitted 784, 571 signatures in support of
placing Proposition 48 on the ballot for the November 2014
election. The then-Secretary of State, Debra Bowen,
certified that the signatures submitted contained a
sufficient number of valid votes to place the matter on the
ballot. Id.; see Cal. Const. Art. II,
November 4, 2014, California voters rejected Indian Gaming
Compacts Referendum, labeled Proposition 48, to ratify the
North Fork and Wiyot Tribe compacts. Based on that referendum
vote, the State of California's position in the action
was that no valid Tribal-State compact exists between the
State and North Fork.
on the Pleadings
Court's prior order made clear that "[i]t [was]
undisputed in this case that the Madera parcel, "
although taken into trust after October 17, 1988, "falls
within [the 25 U.S.C. § 2719(b)(1)(A)] exception to the
general prohibition of use of after-acquired land" for
gaming. Doc. 25 at 13 n. 16. Indeed, North Fork and the State
contend that the Secretary of the Interior's two-part,
gaming on after-acquired land determination and fee-to trust
determination are valid. Similarly, North Fork and the State
also agreed that Governor Brown's concurrence with the
two-part determination was equally valid. Additionally, North
Fork and the State agreed that no Tribal-State compact was in
effect. However, it is now apparent that the Secretary's
two-part determination, the governor's concurrence with
the Secretary's two-part determination, the fee-to-trust
determination, and whether a Tribal-State compact is in
effect are each the subject of pending litigations.
the Madera parcel is Indian Land that is not otherwise
gaming-ineligible is a statutory prerequisite to suit in an
IGRA action, upon which this Court's judgment on the
pleadings rests. An Indian tribe can only demand that a state
negotiate in good faith toward an enforceable compact if it
"possesses Indian land-defined by section 2703(4)(B) to
include ‘any lands title to which is held in trust by
the United States for any Indian [t]ribe'-not otherwise
ineligible for gaming…." Doc. 25 at 13 (quoting,
inter alia, Mechoopda Indian Tribe of Chico
Rancheria v. Schwarzenegger, 2004 WL 1103021, *5 (E.D.
Cal. Mar. 12, 2004)).
that a Tribal-State compact had not been entered into was a
statutory prerequisite to suit in an IGRA action, upon which
this Court's judgment on the pleadings rested. Doc. 25 at
12 ("In order to prevail on this [IGRA] claim, [North
Fork] must ‘introduce evidence that "a
Tribal-State compact has not been entered into…."
' [I]t is undisputed that the State and the Tribe have
not entered into an enforceable compact.")
District of Columbia Action
District of Columbia action and the action before this Court
proceed from two dramatically different starting points. This
Court was apprised by the State of California and North Fork
that it was both parties' position that the Tribal-State
compact between the parties was not in effect. Doc. 1 at
¶ 6; Doc. 9 at ¶ 6. It is the Secretary of the
Interior's position in the District of Columbia action
that the Tribal-State compact between North Fork and
California is in effect. Stand Up for California! v.
United States Department of the Interior, Case No.
1:12-cv-02039-BAH, Doc. 112-1 at 37-45 (D.D.C. Feb. 13,
District of Columbia action also involves, among other
things, to propriety of the Secretary of the Interior having
made the two-part IGRA determination, the Governor of the
State of California having given his concurrence, and the
Secretary having taken the Madera parcel into trust for the
North Fork. Chukchansi is a party to that action. The
Fifth District Court of Appeal Action As of
Chukchansi's filing of its motion to intervene, the
impact of the referendum on the compact between North Fork
and the State is one subject of litigation pending before the
California Fifth District Court of Appeal. See Stand Up
for California v. State of California et al., 5th DCA
Case Nos. F070327 consolidated with F069302, filed
Dec. 27, 2014. The Fifth District Court of Appeal was asked
by North Fork to reverse the judgment of the Madera County
Superior Court, holding that the referendum against AB 277
was valid. On June 2, 2016, North Fork dismissed its appeal.
second subject of the Fifth District Court of Appeal Action
is whether the Governor had the authority to give his
concurrence to the Secretary of the Interior's two-part
after-acquired lands determination. See Stand Up for
California v. State of California et al., 5th DCA Case
No. F069302. The Madera County Superior Court held that the
Governor's authority to concur with the Secretary's
determination is implicit in the Governor's authority to
negotiate and conclude Tribal-State compacts on behalf of the
state. That decision is presently pending before
California's Fifth District Court of Appeal.