United Auburn Indian Cmty. of the Auburn Rancheria v. Brown

CourtCalifornia Court of Appeals
Citation4 Cal.App.5th 36,208 Cal.Rptr.3d 487
Decision Date13 October 2016
Docket NumberC075126
Parties UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN RANCHERIA, Plaintiff and Appellant, v. Edmund G. BROWN, JR., as Governor, etc., Defendant and Respondent.

4 Cal.App.5th 36
208 Cal.Rptr.3d 487

UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN RANCHERIA, Plaintiff and Appellant,
v.
Edmund G. BROWN, JR., as Governor, etc., Defendant and Respondent.

C075126

Court of Appeal, Third District, California.

Filed October 13, 2016


Certified for Partial Publication.*

Bingham McCutchen, Morgan, Lewis & Bockius, Thomas F. Gede and Colin C. West for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Sara J. Drake, Senior Assistant Attorney General, William P. Torngren and Timothy M. Muscat, Deputy Attorneys General for Defendant and Respondent.

Blease, Acting P.J.

4 Cal.App.5th 39

The federal Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq. ; hereafter IGRA) permits gaming on Indian lands taken into trust for the benefit of a tribe after October 17, 1988, if the Secretary of the Interior (Secretary) inter alia determines it would be in the best interest of the tribe and would not be detrimental to the surrounding community, and the governor of the state in which the land is located concurs with the determination. (25 U.S.C. § 2719(b)(1)(A).) IGRA requires a tribal-state compact for the conduct of

208 Cal.Rptr.3d 490

class III gaming (casino-style gaming), and California law designates the Governor as the state officer authorized to negotiate and execute the compact. (25 U.S.C. § 2710(d)(3)(A) ; Cal. Const., art. IV, § 19, subd. (f).)

A competing Indian tribe challenges the validity of the Governor's concurrence on the ground it constituted an illegal exercise of legislative power, which was neither delegated to the Governor, nor ancillary and incidental to his power to enter into gaming compacts with Indian tribes. We disagree on the ground the exercise of the power of concurrence is not legislative. Because we conclude concurrence is not a legislative power, we need not determine whether it is ancillary and incidental to the Governor's power to enter into gaming compacts.

The land in question is in Yuba County. The Governor gave his concurrence and simultaneously executed a tribal-state gaming compact for the Yuba

4 Cal.App.5th 40

County site. The competing gaming establishment, the plaintiff and appellant, is owned by the United Auburn Indian Community of the Auburn Rancheria (Auburn Tribe). The Auburn Tribe also argues the Governor's concurrence was a project subject to the California Environmental Quality Act (CEQA). The concurrence was not a project under CEQA because the Governor is not a public agency.

This case involves the interplay of three separate statutory schemes—two federal and one state. First, section 465 of title 25 of the United States Code, which is now cited as section 5108, is part of the Indian Reorganization Act of 1934 (25 U.S.C. § 5101 et seq. ; hereafter IRA). This section provides that the Secretary “is ... authorized ... to acquire ... any interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians.” (25 U.S.C. § 5108.)

The second statutory scheme is IGRA. (25 U.S.C. § 2701 et seq. ) IGRA was enacted for the express purpose of regulating gaming on Indian lands. (25 U.S.C. § 2702.) Two IGRA statutes are pertinent here. Section 2719 provides that gaming shall not be conducted on lands acquired by the Secretary for the benefit of a tribe after October 17, 1988, unless the Secretary makes a determination that gaming on such newly acquired lands would be in the best interest of the tribe and would not be detrimental to the surrounding community and the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination. (25 U.S.C. § 2719(b)(1)(A), italics added; id. § 2719(a).) Section 2710(d)(1)(B) & (C) provides that class III gaming (casino-style gaming) is lawful only if: (1) it is “located in a State that permits such gaming for any purpose by any person, organization, or entity” and (2) is “conducted in conformance with a Tribal–State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.” The aforesaid paragraph (3) provides in pertinent part: “Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact.” (25 U.S.C. § 2710(d)(3)(A).)

The third statutory scheme is California's, and includes the California Constitution. Article IV, section 19, subdivision (f) of the California Constitution provides in part that notwithstanding any other provision of state law, “the Governor is authorized to negotiate and conclude compacts,

208 Cal.Rptr.3d 491

subject to ratification by the Legislature, for the operation of [class III gaming] by

4 Cal.App.5th 41

federally recognized Indian tribes on Indian lands in California in accordance with federal law.” Likewise, Government Code section 12012.5, subdivision (d) designates the Governor as the “state officer responsible for negotiating and executing, on behalf of the state, tribal-state gaming compacts with federally recognized Indian tribes in the State of California pursuant to the Federal Indian Gaming Regulatory Act of 1988 ... for the purpose of authorizing class III gaming, as defined in that act, on Indian lands.”

The Auburn Tribe argues that even though federal law singles out the Governor as the arm of the state that must concur in the Secretary's determination under IGRA that land acquired after 1988 is suitable for Indian gaming, no state law authorizes the Governor to so act. The Auburn Tribe maintains that such action is a legislative act that must be performed by the Legislature unless delegated to the Governor. The Auburn Tribe argues that the Governor's power to concur with the Secretary's determination that land acquired after 1988 is suitable for gaming, is not necessary to the Governor's authority to negotiate and conclude class III gaming compacts. Therefore, it argues the power to concur cannot be said to be ancillary or incidental to the Governor's legislative authorization to enter into class III gaming compacts with Indian tribes. It claims that since the power to concur was a legislative act that was not expressly given to the Governor and which cannot be said to be ancillary and incidental to the compacting power, the Governor violated the separation of powers clause of the state Constitution when he concurred in the Secretary's determination that the land was suitable for Indian gaming. (Cal. Const., art. III, § 3.)

We take issue with the Auburn Tribe's underlying premise that the power to concur in the Secretary's determination is clearly a legislative power. “The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch.” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297, 105 Cal.Rptr.2d 636, 20 P.3d 533 (Carmel Valley. )) The Legislature's core function is to pass statutes. (Cal. Const., art. IV, § 8 ; Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 177, 52 Cal.Rptr.3d 762.) Nothing about the Governor's concurrence defeated or materially impaired this function. As we will explain, the lines between the three branches of government are not always clearly defined, and some powers may not strictly belong to any one branch. (People ex rel. Attorney Gen. v. Provines (1868) 34 Cal. 520, 540–541 (conc. opn. of Sawyer, C.J.).) The Governor's power to concur has the characteristics of an executive, rather than a legislative act, thus the Governor's power does not depend on legislative delegation.

4 Cal.App.5th 42

We shall conclude the Governor's concurrence did not violate the separation of powers clause. We also conclude that the concurrence is not a project under CEQA because the Governor is not a public agency. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2002 the Enterprise Rancheria of Maidu Indians of California (Enterprise Tribe) submitted a request to the United States Department of the Interior (Department) to acquire a site in Yuba County for the purpose of establishing a casino/hotel resort complex. Pursuant to the IRA, the Secretary is authorized to acquire land, within or without an existing reservation, for the purpose of providing land for Indians.

208 Cal.Rptr.3d 492

(25 U.S.C. § 5108.) Title to such land is taken in the name of the United States in trust for the tribe for which the land is acquired, and the land is thereafter exempt from state and local taxation. (Ibid .) Land so acquired after October 17, 1988, may not, with some exceptions, be used for gaming. (25 U.S.C. § 2719.) The exception at issue here is where the Secretary “after consultation with the...

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