On October 13, 2016, the Court of Appeal for the Third Appellate District affirmed a trial court’s decision to grant a demurrer filed on behalf of Governor Jerry Brown following his concurrence with the Secretary of the Interior to allow a gaming facility in Yuba County. United Auburn Indian Community of the Auburn Rancheria v. Brown, __ Cal.App.5th __ (2016) (Case No. C075126).

The case involved the interplay of several statutory schemes, including the federal Indian Gaming Regulatory Act, and the California Constitution. Congress has the sole power to acquire land for the federal government, and it is constitutionally empowered to acquire land in trust for Indian tribes. Congress has delegated its power to acquire land in trust for Indian tribes to the Secretary of the Interior. However, Congress conditioned the Secretary’s ability to take land into trust for Indian tribes for the purpose of gaming, after October 17, 1988, upon the concurrence of the Governor of the state in which the land is located. The federal Indian Gaming Regulatory Act also requires a tribal-state compact for the conduct of class III gaming (i.e., slot machines, casino games, banking card games, dog racing, and lotteries), and California law designates the Governor as the state officer authorized to negotiate and execute the compact.

Here, Governor Jerry Brown gave his concurrence and simultaneously executed a tribal-state gaming compact with the Enterprise Rancheria of Maidu Indians of California, for the Yuba County site. A competing establishment owned by the United Auburn Indian Community of the Auburn Rancheria—which owns and operates the Thunder Valley Resort and Casino in Lincoln, approximately 20 miles from the Yuba County site—filed a petition for writ of mandate and complaint for declaratory relief challenging the Governor’s concurrence. The Auburn Tribe alleged that (1) the Governor was required to comply with CEQA before concurring in the Secretary’s decision to take lands into trust for the Enterprise Tribe and (2) that the Governor performed a legislative act when he concurred with the Secretary and when he negotiated and executed the compact with the Enterprise Tribe, in violation of separation of powers principles established in the California Constitution.

As relevant here, the Auburn Tribe argued that the Governor’s concurrence effectively made land use policy when it determined casino gaming could be conducted on the land. The Auburn Tribe’s argument rested on two important land uses cases—Arnel Development Co. v. City of Costa Mesa and Mira Development Corp. v. City of San Diego—that stand for the proposition that zoning ordinances are legislative in nature because they make land use law. In other words, ordinances passed by local bodies are legislative in the sense that they are the equivalent of statutes passed by the state legislature.

The Court of Appeal readily rejected the Auburn Tribe’s argument because the Governor’s concurrence “is not a zoning ordinance” and the cited cases do not hold that any decision by a governmental entity that involves land use or considers policy is legislative. “[T]he mere fact that the Governor’s concurrence had some land use consequences and involved a policymaking component, does not make the action a legislative function.” The Court reasoned that while the Governor’s concurrence does concern land use and take policy matters into consideration, so do such adjudicative matters as subdivision map approvals and variances. “Such factors do not make the Governor’s concurrence a legislative act any more than they make it an adjudicative act.”

The Auburn Tribe also argued that the Governor’s concurrence was a “project” subject to CEQA. As my partner Art Coon will write on his CEQA Developments blog, the Court held that “[t]he concurrence was not a project under CEQA because the Governor is not a public agency.”