Metropolitan News-Enterprise


Wednesday, December 14, 2016


Page 1


Court of Appeal Says:

Governor Lacked Power to ‘Concur’ in Federal Decision Over Indian Casino

Each of Three Justices Writes an Opinion in Case Concerning Proposed Gambling Complex


By a MetNews Staff Writer


Three members of the Fifth District Court of Appeal are in agreement that a judge erred in dismissing an action aimed at blocking a massive off-reservation gambling complex in Madera County, but each justice has a somewhat different view of the matter, resulting in three opinions in the case.

The precise issue was whether Gov. Jerry Brown had state constitutional authority to “concur” in the decision of the U.S. secretary of the interior that land 36 miles from the reservation—denominated a “rancheria”—of the North Fork Tribe be acquired by the federal government and taken into trust for the tribe, which would turn it into a commercial development. Concurrence by the governor was necessary, under federal law, for the project to proceed under a procedure entailing a state compact with a tribe.

What is envisioned, according to a Sept. 6 U.S. District Court opinion for the District of Columbia District, dealing with a different aspect of the controversy, is a project including “2,500 gaming devices, six bars, three restaurants, a five-tenant food court, a 200-room hotel tower and 4,500 parking spaces on a 305.49-acre parcel of land.”

In that 170-page federal decision, Chief Judge Beryl Howell declined to decide if Brown had the power to “concur,” saying that he and the state were indispensable parties to any such determination and California could not, under the Eleventh Amendment, as a sovereign state, be joined.

Whether the Fifth District’s decision will affect the project is doubtful. The Department of Interior is utilizing “secretarial procedures” to put the project in place, bypassing a state compact, and Howell held that “negative impacts” from the project “would not be, overall, detrimental to the surrounding community.”

California voters spoke out against the project on Nov. 4, 2014, by rejecting Proposition 48. Voters thereby disapproved a statute which ratified a compact Brown had formed with the tribe in 2012 (an act separate from the concurrence, but contemporaneous with it). Such compacts were authorized by a state constitutional amendment, enacted by voters in 2000, overriding the previous total ban on gambling casinos in the state.

The tribe has withdrawn an appeal to its unsuccessful trial-court challenge to the referendum.

Its reservation is located within Sierra National Forest, near Yosemite National Park, and based on environmental concerns, most of the reservation land is not deemed suitable for development. There is widespread opposition by residents of the scenic and tranquil Madera County—located in the geographical center of the state—to creation of a mini-Las Vegas there, and controversy over the tribe’s plans has been ablaze for the past decade.

A group known as “Plaintiffs Stand Up for California!” and an individual, Barbara Leach, brought an action to challenge Brown’s concurrence. Madera Superior Court Judge Michael J. Jurkovich sustained demurrers without leave to amend, and the plaintiffs appealed from the ensuing judgment of dismissal.

Smith’s View

Court of Appeal Justice M. Bruce Smith wrote the lead opinion, filed late Monday.

He said that the “needed authority” for Brown to concur with the secretary of the interior, “if it exists, is found by implication in state law authorizing the Governor to negotiate and execute tribal-state compacts.” He pointed to Article IV, §19(f) of the California Constitution, added by Proposition 1A in 2000, which provides that “the Governor is authorized to negotiate and conclude compacts, subject to ratification by the Legislature, for the operation of slot machines and for the conduct of lottery games and banking and percentage card games by federally recognized Indian tribes on Indian lands in California in accordance with federal law.”

He said, however, that even if that provision does authorize a governor to proffer the requisite concurrence, “the Governor’s implied concurrence power would not extend to lands as to which there is no state-approved compact, nor any prospect of one, since the point of the implied concurrence power would be to give effect to the state’s compacting power.”

Smith explained:

“The voters decided to reject the compact that was negotiated and ratified; the tribe has dismissed its appeal in the litigation that was designed to revive that compact; and no new compact has been proposed by any party.  Instead, the casino project is poised to proceed, but for the issue in this appeal, based on the secretarial procedures, which have been imposed against the state’s will. 

“I do not believe an implied concurrence power can be held to exist under these circumstances.”

He said the matter is not moot, despite the federal government opting to employ “secretarial procedures” because a provision in the procedures “gives the state the option of participating in the regulation of gambling on the 305-acre site under those procedures.” Smith reasoned:

“In light of this, plaintiffs might still wish to pursue relief against all the state defendants and might be able to amend their complaint accordingly.” 

Other Opinions

Justice Jennifer R.S. Detjen wrote a concurring and dissenting opinion. She pointed out that Proposition 1A authorized the governor to enter into compacts with tribes “on Indian lands in California.”

The jurist said “it is the restriction to compacting for operations on Indian lands which precludes the Governor’s actions under the alleged facts of this case.” She noted:

“At the time the Governor negotiated the compact and gave the disputed concurrence, the Secretary had not accepted the Madera property into trust,” and concluded:

“Constitutional authority to negotiate a tribal-state compact authorizing [high-stakes] gaming requires that the land at issue be Indian land.  At the time of this tribal-state compact, the 305-acre parcel in Madera was not Indian land.  On the facts pled by appellants, the Governor exceeded his constitutional authority.”

Justice Donald R. Franson Jr. took the position that there “is no constitutional or other basis for issuing a concurrence,” and Brown’s purported concurrence “was void ab initio.”

He observed that “[a]ll three justices agree in the conclusion that, under the facts alleged in this case, any inherent executive authority that the Governor might have does not validate the Governor’s August 2012 concurrence,” and that he and Detjen and agree that there is no “inherent executive authority to concur” in the secretary of interior’s determination.

Franson agreed that the matter is not moot.

None of the authors was designated “acting presiding justice.”

The  case is Stand Up for California! V. State of California, 2016 S.O.S. 6353.


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