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North Fork Rancheria of Mono Indians of California v. State

United States District Court, E.D. California

June 27, 2016

NORTH FORK RANCHERIA OF MONO INDIANS OF CALIFORNIA, Plaintiff,
v.
STATE OF CALIFORNIA, Defendant. PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS, Putative Intervenors.

          ORDER DENYING PUTATIVE INTERVENOR DEFENDANT'S MOTION TO INTERVENE (DOC. 31) ORDER REQURING BRIEFING ON WHETHER THE COURT SHOULD STAY THIS ACTION

         I. Introduction

         Plaintiff 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.

         Based 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.

         II. Background

         The 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, [1] Assembly Bill 277, and Proposition 48.[2]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.

         IGRA 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).

         As to 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. F069302.

         Assembly Bill 277

         The 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.).[3] 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.

         AB 277 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 Interior.

         On 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. 22, 2013).

         Proposition 48

         On July 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).[4] 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.[5] 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, § 9(b).

         On November 4, 2014, California voters rejected Indian Gaming Compacts Referendum, labeled Proposition 48, to ratify the North Fork and Wiyot Tribe compacts.[6] 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.

         Judgment on the Pleadings

         This 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.

         That 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)).

         Similarly, 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.")

         The District of Columbia Action

         The 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, 2015).

         The 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.

         A 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.

         III. ...


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