Thursday, January 15, 2015
Page 3
S.C. Won’t Review Ruling Brown Not Subject to CEQA
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday unanimously left standing a Third District Court of Appeal ruling that the governor is not an “agency” within the meaning of the California Environmental Quality Act.
The justices, at their weekly conference in San Francisco, denied review in Picayune Rancheria of Chukchansi Indians v. Brown (NP Fresno Land Acquisitions LLC) (2014) 229 Cal. App. 4th 1416.
The panel in that case affirmed a Sacramento Superior Court ruling that the governor’s approval of a new Indian casino in Madera County was not subject to CEQA review. As a published opinion, it becomes statewide precedent, although the approval itself is now moot because the compact approved by Brown and the Legislature with the North Fork Rancheria of Mono Indians was rejected by voters in a referendum last November, as Proposition 48.
Under the Indian Gaming Regulatory Act, acquisition of land for an off-reservation casino must be approved by the Department of the Interior, as well as the governor of the state in which the casino is to be located. Approval requires a determination that the casino would serve the best interests of the tribe and its members, and would not be detrimental to the surrounding community.
The North Fork tribe wanted to locate the casino on about 305 acres of land adjacent to State Road 99, about 40 miles from the North Fork Rancheria lands and about 30 miles from an existing casino operated by the Picayune Rancheria of Chukchansi Indians. The Chukchansi casino has since been closed, pursuant to Bureau of Indian Affairs and court orders, because of a dispute over tribal governance.
The Picayune tribe, among others, urged Brown to conduct a separate environmental study of the North Fork proposal before concurring in federal findings, but the governor declined to do so, and gave his approval in August 2012.
In seeking to set aside the governor’s approval of the land acquisition via petition for writ of mandate, the Picayune tribe argued that the governor’s approval was subject to review under CEQA. The act requires the government agency that is primarily responsible for oversight of a land use project to conduct an environmental impact review, unless a statutory exception to the requirement applies.
Sacramento Superior Court Judge Michael Kenny denied the Picayune petition, saying the governor is not an agency for CEQA purposes and cannot be compelled to conduct an environmental review under the statute. Justice Ronald Robie, writing for the Court of Appeal, said Kenny was correct.
Robie distinguished a case in which, the Picayune tribe argued, the court applied CEQA to the head of a state agency. The justice explained that it was the agency, not the individual heading it, to which CEQA applied, and the fact that the plaintiffs sued the agency head, rather than the agency itself, was irrelevant.
The governor stands in a different posture than an agency head, the justice explained.
“There is nothing in the explicit language of CEQA … that suggests the Legislature intended to encompass the Governor within the term ‘public agency’ as defined in that statute,” Robie wrote. “The Governor is the chief executive officer of the state in whose person the supreme executive power of the state is constitutionally vested. In other words, the supreme executive power of the state is vested in the individual who is elected to hold the office of Governor, and it is that individual who is charged with the power to concur (or not) in the two-part determination made by the Secretary of the Interior.”
In another case related to off-reservation gaming, the high court unanimously left standing a ruling in favor of a tribe whose casino opened in November 2013, after a previous Court of Appeal ruling in its favor.
In Stop the Casino 101 Coalition v. Brown (2014) 230 Cal. App. 4th 280, the First District’s Div. Three rejected the plaintiff organization’s challenges to the Rohnert Park casino opened by the Federated Indians of the Graton Rancheria, the closest full-blown casino to San Francisco.
Opponents argued that the chairman of the federal commission that implements IGRA erred in approving the tribe’s exercise of jurisdiction over the site. Justice Stuart Pollak, however, writing for the Court of Appeal, said state courts had no jurisdiction to review the chairman’s decision.
In any event, Pollak said, the chairman was correct because the tribe had the right to acquire land for the casino under the Graton Rancheria Restoration Act, passed by Congress in 2000, recognizing the Graton Tribe and making tribal members eligible “for all Federal services and benefits furnished to federally recognized Indian tribes or their members.”
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