Thursday, September 25, 2014
Governor Not an ‘Agency’ Under CEQA, Court of Appeal Rules
By KENNETH OFGANG, Staff Writer
The governor of California is not an “agency” within the meaning of the California Environmental Quality Act, the Third District Court of Appeal ruled yesterday.
The court affirmed a Sacramento Superior Court ruling that the governor’s approval of a new Indian casino in Madera County is not subject to CEQA review, eliminating one legal hurdle in the near-decade-long effort by the North Fork Rancheria of Mono Indians to gain approval for off-reservation gambling.
Under the Indian Gaming Regulatory Act, acquisition of the 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 wants 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. A federal environmental impact study was completed in 2009, and the required federal determination in favor of the casino was made in 2011.
Separate Environmental Study
The Picayune tribe, among others, urged Gov. Jerry Brown to conduct a separate environmental study before concurring in the federal findings, but the governor declined to do so, and gave his approval in August 2012. An IGRA compact between the state and the North Fork tribe was executed the following day, and the land became part of the Indian trust territory administered by the federal government, as required by IGRA, in September of last year.
The compact is one of two such agreements that have been challenged through the referendum process, and will appear on the general election ballot in November as Proposition 48.
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.”
The case is Picayune Rancheria of Chukchansi Indians v. Brown (NP Fresno Land Acquisitions LLC), 14 S.O.S. 4270.
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