The Federal Indian Gaming Regulatory Act (“IGRA”; 25 U.S.C. § 2701 et seq.) allows gaming on Indian lands acquired by the Secretary of the Interior (Secretary) in trust for a tribe’s benefit after October 17, 1988, if, among other things, the Secretary determines it would be in the tribe’s best interest and not detrimental to the surrounding community, and the governor of the state where the land is located concurs with the determination. (25 U.S.C., § 2719(b)(1)(A).) Further, casino-style gaming may be conducted if authorized by a tribal-state compact, and California Constitutional and statutory law designates the Governor as the state officer authorized to negotiate and execute such compacts. (Cal. Const., art. IV, § 19(f); Gov. Code, § 12012.5(d).)
In a recent anti-competitive litigation challenge brought by a tribe to Governor Brown’s concurrence with the Secretary’s IGRA determinations and entry into a tribal-state gaming compact with another tribe for a Yuba County site, the Third District Court of Appeal tersely reiterated that CEQA does not apply: “The concurrence was not a project under CEQA because the Governor is not a public agency.” United Auburn Indian Community of the Auburn Rancheria v. Edmund G. Brown, Jr. (2016) __ Cal. App. 5th __, Case No. C075126. The CEQA portion of the Court’s partially published 22-page opinion, filed on October 13, 2016, was barely over a page in length and was not certified for publication. It followed and incorporated (mostly by reference) the reasoning of the Court’s earlier on-point published opinion in Picayune Rancheria of Chukchansi Indians v. Brown (2014) 229 Cal. App. 4th 1416, which was summarized in my September 25, 2014 blog post. The Court’s rejection of the plaintiff tribe’s constitutional separation of powers arguments challenging the Governor’s actions, found in the published portion of its opinion, was summarized in my partner Bryan Wenter’s October 14, 2016 Land Use Developments blog post.