Metropolitan News-Enterprise


Wednesday, September 23, 2020


Page 1


Ninth Circuit:

Indian Band Lost Tribal Sovereign Immunity by Voluntarily Litigating in District Court

Panel Says Challenge to Settlement With City, Based on Alleged Brown Act Violation, May Proceed


By a MetNews Staff Writer


An Indian band that fought for 14 years to be allowed to build a $1.2 billion hotel/casino on the site of an abandoned naval base, in the end entering into settlement under which the city will sell the land, with the band and its allied developer receiving half the profits, now faces the prospect of going back to Square One, under a holding yesterday by the Ninth U.S. Circuit Court of Appeals.

Tribal immunity does not apply, a three-judge panel said in a memorandum opinion, because the band voluntarily litigated in the U.S. District Court for the Northern District of California, which retained jurisdiction over the matter after entering a stipulated judgment. The current action is an attack on the judgment by the Sustainability, Parks, Recycling, and Wildlife Legal Defense (“SPRAWLDEF”), a non-profit environmental corporation.

SPRAWLDEF asserts that the City of Richmond—which acquired the 270-acre site at Point Molate from the Navy in 1995 for $1—approved the settlement without complying with California’s Brown Act, which requires that most actions of local governments be taken in open meetings.

The Guidiville Rancheria of California, a band of the Pomo Tribe, asserted, in moving for termination of SPRAWLDEF’s action:

“Because the Tribe is immune and therefore cannot be joined involuntarily, and because the Tribe is a necessary, indispensable party…, the entire case must be dismissed….”

District Court Judge Yvonne Gonzales Rogers on June 19, 2019 rejected the band’s contention, noting that that the stipulated judgment—in a 2012 action brought by Guidiville Rancheria and the allied for-profit Upstream Point Molate LLC—provided:

 “The Court shall retain jurisdiction over this Action to enforce the terms of this Judgment. To avoid doubt, this Judgment applies to and is binding upon the Tribe and Upstream and the City, and their respective heirs, successors, assigns and future councils for the City and the Tribe. Consistent with settled law, any change in the composition of the City Council for the City shall not alter the City’s obligations under this Judgment.”

Rogers wrote:

“The petition herein is a collateral challenge to the enforceability of that judgment on the grounds that the City did not have proper authority to enter into it at the time due to the public entity notice requirements in the Brown Act. The instant action falls within this Court’s jurisdiction to modify and enforce the stipulated judgment. The Tribe expressly submitted to the Court’s continued jurisdiction to enforce, and implicitly to modify, the judgment under the terms of the settlement agreement. The Court therefore finds that the Tribe’s waiver of its immunity was clear for purposes of the instant action.”

Ninth Circuit’s Opinion

The Ninth Circuit, in yesterday’s opinion—signed by Senior Circuit Judge Mary M. Schroeder and Circuit Judge William A. Fletcher and Danielle J. Hunsaker—agreed, saying:

“The Tribe here expressly consented to the district court’s continued exercise of jurisdiction to enforce the terms of the stipulated judgment. In so doing, it consented to the court’s jurisdiction over suits seeking to modify it or set it aside. SPRAWLDEF’s suit seeks to void the settlement and resulting judgment, set aside any City actions taken pursuant to the judgment, and require the City to comply with the Brown Act in future deliberations. The complaint does not specify any other remedies sought against the Tribe. The suit therefore falls within the scope of the Tribe’s waiver of sovereign immunity in the settlement agreement and stipulated judgment.”

The opinion continues:

“The Tribe also argues that this case is moot because in an open meeting the City has recently approved an amended final judgment in the prior litigation. We are unable to decide on the limited record before us whether SPRAWLDEF’s suit is moot. The Tribe is free to make this argument to the district court in the first instance.”

‘Restored Lands’ Proviso

Richmond is located in Contra Costa County. Although the Guidiville band is now based in Mendocino County, four counties to the north, it claims ancestral ties to the Point Molate Peninsula, proceeding under the  “restored lands” provision of the Indian Gaming Regulatory Act.

The city last year agreed to sell the site, a portion of which overlooks the San Francisco Bay, to Winehaven LLC for $45 million.

The case is SPRAWLDEF v. Guidiville Rancheria of California, 19-16278.


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