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Governor of California Is Not a “Public Agency” Under CEQA

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By Sean M. Sherlock and Brian A. Daluiso

The North Fork Rancheria of Mono Indians (“North Fork Tribe”) is a federally recognized Indian tribe that wants to develop a casino near the City of Madera, approximately 40 miles from the tribe’s existing Rancheria. To do this, the North Fork Tribe needs the U.S. Secretary of the Interior (the “Secretary”) to make a “two-part” determination under the Indian Gaming Regulatory Act (“IGRA”). Federal law also requires that the Governor “concur” in the Secretary’s two-part determination. In 2011 the Secretary made the two-part determination, and in 2012 the Governor concurred in the Secretary’s determination.

Another tribe, the Picayune Rancheria of Chukchansi Indians (“Picayune Tribe”) filed a petition for writ of mandate, asking the court to set aside the Governor’s concurrence as a violation of CEQA, because the Governor did not attempt to comply with CEQA in issuing his concurrence. The superior court sustained the Governor’s demurrer without leave to amend, and the Third District Court of Appeal affirmed. The Court of Appeal held that the Governor’s concurrence did not implicate CEQA because the Governor “is not a ‘public agency’ within the meaning of CEQA.”

Basic Facts:

In 2005, the North Fork Tribe submitted an application to the U.S. Department of the Interior to take a 305-acre parcel of land in Madera County into federal trust for the development of a casino resort. Under federal law, the Secretary is empowered to take land into trust for the purpose of providing land to Indians. 25 U.S.C. § 465. The Secretary cannot, however, take land into trust for the purpose of gaming unless the trust acquisition is subject to one of a limited number of exceptions. 25 U.S.C.  § 2719(a). The exception applicable to this case requires that the Secretary make a two-part determination that (1) the trust acquisition would be in the best interest of the North Fork Tribe and (2) would not be detrimental to the surrounding community. After making a favorable two-part determination, the Secretary may take the land into trust only if the governor concurs in the two-part determination. 25 U.S.C.  § 2719(b)(1)(A).

In September 2011, the Assistant Secretary for Indian Affairs notified Governor Brown that the Secretary had made a favorable two-part determination and requested the Governor’s concurrence. In August 2012, Governor Brown concurred. The Governor did not conduct any environmental review under CEQA prior to issuing his concurrence.

Appellant, Picayune Tribe, challenged the concurrence on the ground that the concurrence constituted a project under CEQA, and as the head of a public agency, the Governor had a duty to inform his decision to concur with the environmental considerations required under CEQA. The Picayune Tribe argued that it did not bring its action against the Governor as an individual but rather as the head of the Governor’s Office, a department within the state that qualifies as a public agency subject to CEQA.

Appellate Decision (Affirmed)

The Court of Appeal based its decision on CEQA guidelines and case law that require a “literal, i.e., explicit approach to statutory construction.” Under this rule, the court found that while the list of public agencies in the CEQA guidelines is not exhaustive, the examples listed are all “governmental bodies, rather than governmental officials like the Governor.” The only evidence offered by the Picayune Tribe that the Governor or Office of the Governor was a public agency for CEQA purposes was that “Governor, Office of the” is listed on the directory of “state agencies” on the State’s website. The court rejected this evidence, stating that no matter how the Picayune Tribe parsed its suit, “the tribe sued [an] individual in his capacity as Governor of California, but even in that capacity, he is still an individual . . . not an ‘office.’” The fact that the Governor is not a public agency but an individual is also bolstered, according to the court, by the federal law that requires the Secretary to obtain the governor’s concurrence. It is, therefore, the governor as an “individual who is charged” with concurring or not concurring in the Secretary’s two-part determination. Because the governor, as an individual, must concur or not concur, and the governor, as an individual, does not conform to the examples on the list of public agencies for CEQA purposes, the required literal approach to statutory construction cannot support the Picayune Tribe’s contention that the governor qualifies as a public agency.

Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. — Cal.Rptr.3d —-, 2014 WL 4732582 (Cal. App. 3d Dist.)

Trial Court Judge:

Michael P. Kenny, Superior Court of Sacramento County

Appellate Panel:

Judge Robie presiding

Judges Blease, Duarte concurring