The Fifth District Court of Appeal in Fresno ruled last week that California Governor Jerry Brown didn’t have the authority to allow an off-reservation casino on land in Madera County.
The tribe wants to build a casino with 2,000 slots and 40 gaming tables.
In a 113-page decision a three-judge panel of the appeals court ruled that Brown didn’t have the authority to allow the North Fork Rancheria of Mono Indians to put land into trust. This vacates an earlier ruling by federal Judge Michael Jurkovich, who had ruled that Brown was within his authority when he approved of the casino project.
The ruling derives from a 2013 lawsuit filed by Stand Up for California on the behalf of Madera residents who objected to the approval by the legislature and Brown of a compact allowing a casino on 305 acres near Highway 99 in Northern California.
The tribe’s options are to ask for an en banc review by the full appeals court or go to the state Supreme Court. The most recent ruling is problematic because all three judges ruled that Brown acted incorrectly, each used a different methodology for reaching that conclusion.
One of the key points in the ruling is that California voters in 2014 via Proposition rejected the tribal state compact with the tribe, which applied to put land 36 miles from its reservation into trust. Because the Indian Gaming Regulatory Act of 1988 requires a “two-part determination” by both the Bureau of Indian Affairs and the governor of the state. The ruling did not challenge the BIA’s decision, only the governor’s authority. The reasoning is that Brown gave his approval for the compact before the BIA gave its approval.
Associate Justice Jennifer Detien wrote “At the time of this tribal-state compact, the 305-acre parcel in Madera was not Indian land.”
Besides appeals, the tribe could also take a chance and go forward with its partner Station Casinos to build the casino since it does have federal backing, even if it is lacking a state tribal gaming compact.
Another wrinkle of the case is that after the voters rejected the compact a federal judge ruled that the compact could move forward, and ordered an arbitrator to choose between compacts proposed by Governor Brown and the tribe. The arbitrator chose the tribe’s compact. The appeals court ruled that this compact was invalid because it was not approved by the state.
One of the judges, 5th District Associate Justice M. Bruce Smith, called the process by which the compact was forced on the state “perverse.”
“It would be perverse to find the governor has an implied authority based on an express power that the state has finally decided not to exercise, after protracted consideration by the governor, the Legislature, and the voters,” Smith wrote. “It is no denigration of the governor’s authority to say he cannot exercise an implied power in a case where the voters have vetoed an exercise of the express power on which the implied power is purportedly based. The effect of this conclusion is that the governor’s concurrence for the 305-acre parcel is invalid without a state-approved compact for gaming on that parcel.”
