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February 8, 2010 C%PQFSUP
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Yuba County Board Of Supervisors FE8 0
915 Eighth Street, Suite 109AQ � �,QAC
Marysville, California 95901 Q �rfR
RE: Memorandum of Understanding - Enterprise Rancheria
Dear Yuba County Board of Supervisors:
Since Yuba County ventured forward 8 long years ago, aspiring to develop an
off reservation casino with the Enterprise Tribe, many State and Federal
policies have come into question. Thus, we are writing you again to alert you
to a number of serious issues that Yuba County faces should it choose to
continue in this endeavor: 1. questions regarding the validity and enforceability
of the out dated Memorandum of Understanding (MOU) between the County of
Yuba and the Enterprise Rancheria, 2. State policy with regard to off
reservation casinos, 3. Current federal actions affecting off reservation gaming
policy.
Questions regarding the validity and enforceability of the MOU between
the Countp of Yuba and the Enterprise Rancheria: We wish to reiterate the
facts in this matter because:
• The county may lack the authority to enter into an agreement based on
revenue sharing with a tribal government from casino profits, (thus the
MOU may be invalid and unenforceable),
• The County may be in non-compliance of the California Environmental
Quality Act by not having conducted adequate review prior to signing the
MOU.
• The Enterprise tribe may be in material breach of the MOU. Yuba
County may have to pay the court costs to defend their sloppy
applications and environmental documents.
• Your Board of Supervisors continues to honor this MOU in spite of the
vote of Yuba County citizens against the Casino.
FEB 6 2010 "eaczaa O - V444&"
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February 8, 20 10
Page 2 of 7
Lack of County or City Jurisdictional Authority: The Indian Gaming
Regulatory Act (IGRA) authorized states to negotiate compacts for gaming with
Indian Tribes. California has both Constitutional and state statute
empowering the Governor to negotiate and the state Legislature to ratify
gaming agreements as provided by federal law. There is, however, no express
constitutional or statutory authorization for cities or counties to enter into
agreements with tribal governments for a share of casino revenue without a
provision in a tribal state compact. There is no compact and therefore no
enabling authority for revenue sharing.
County Non-Compliance of CEQA: City and County governments which have
developed agreements with tribes lacking tribal state compacts or land in trust
do not know whether, or the conditions under which class III gaming will be
approved, for the land in question. The Yuba County MOU appears to
constitute a_Project" under CEQA. The Yuba County agreement contains
provisions that purport to legally bind the county signatory to definite courses
of action that typically involve physical changes to the environment. In
entering this agreement, it appears the county may NOT be in general
compliance with state environmental review requirements under CEQA. Recent
City MOU's have resulted in judicial invalidation of one settlement and two
agreements by courts. (Citizens to Enforce CEQA vs. City of Hesperia, See also
No Casino in Plymouth vs. City of Plymouth, Amador County vs. City of
Plymouth, and Citizens for Local Gov't Accountability vs. Palm Springs RDA:
Settlement Payment)
Potential Breach of MOU: "Whereas clauses" may constitute admissions by
the party or parties agreeing to them to be true. (Evidence Code section 622.)
It is imperative that the County be certain that these recitals in the "Whereas
clauses" are in fact true. For example:
The very first recital in the December 2002 MOU states:
Whereas, the Tribe is a federally recognized Indian Tribe which has
been recognized by the Government of the United States, continuously,
since 1915:
Was this group of Indians in fact ever actually federally recognized,
notwithstanding its recital as such in the Federal Register?
Are the signatories to the MOU the legitimate successors in interest to the
current Enterprise Rancheria?
February 8, 2010
Page 3 of 7
Do the signatories already have land in trust in their true aboriginal homeland
in Butte County?
Whereas, a ruling on the Tribe's trust acquisition application
constitutes a federal discretionAr
y action subject to the National
Environmental Policy Act (NEPA);
The MOU with the Enterprise Rancheria was entered into good faith by the
County of Yuba basing the tribes land acquisition on a "discretionary"
process. (25 CFR 151.11).
Since that time, the tribe has attempted twice to acquire the land as a
Congressional Act, without notifying the County of Yuba or Congressman
Herger.
A Congressional Act makes the tribal land acquisition `mandatory' and avoids
a NEPA review. The land becomes eligible for gaming as a clear and
indisputable exception under the Indian Gaming Regulatory Act. As a
Congressional exception the tribe circumvents state gaming policy recently
established by Governor Schwarzenegger and the discretion of the Secretary of
the Interior.
Whereas, the County is prepared to support the Tribe's trust
acquisition application only if the County is assured that
anticipated detrimental impacts to the County and the surrounding
communities can be mitigated through a binding and enforceable
agreement between the County and the Tribe and the Tribe is
willing to enter into such a binding and enforceable agreement:
This clause is exceptionally vague. What detrimental impacts will there be?
How can they be mitigated? What will be the specific terms and provisions of
any fixture binding and enforceable agreement"?
Clearly the County in their August 19, 2004, letter to Clay Gregory, Regional
Director of the Pacific Region of the Bureau of Indian Affairs has recognized the
vagueness of this clause. The letter identifies thirty-six items and supports the
conclusion that the casino/hotel resort complex will have a significant and
detrimental environmental impact in several respects. The tribe has provided
no assurance to the County as required in the "whereas clause".
Erecting a casino at this location will entail a multitude of significant and
direct impacts. This area previously zoned farm land was voted to become a
raceway under the stringent guidelines of CEQA. Without the protection of
February 8, 2010
Page 4 of 7
CEQA to mitigate wholly and fully the impacts of a casino/hotel resort complex
which includes related ancillary facilities such as restaurants and parking
structures (section 1 of the MOU) coupled with the statements (section 11) of
the tribes plans to purchase and take into trust additional contiguous parcels.
Until this land is in trust, the tribal government must comply with state law
and abide by CEQA. The tribe's sovereignty does not prevent the enforcement
of CEQA on land owned in fee-simple.
It is further unclear if this proposed casino includes the serving of alcoholic
beverages. If so, both state and federal law apply. The administrative
regulation (25 CFR Section 291.4 (15)) provides that service of alcohol in a
class III gaming facility can only follow the tribe's adoption of a liquor
ordinance and approval of that ordinance by the Secretary of the Interior. The
ordinance is submitted to the Secretary and reviewed. This process is subject
to federal criminal law (18 USC Section 1154- Intoxicants dispensed in Indian
Country). California State Constitution XX section 22 applies to public welfare
at the manufacturing, importing or sale of alcoholic beverages at tribal casinos.
The approval of the serving of alcohol may implicate indirect impacts subject to
CEQA.
Section 14: Reopen Provision - The MOU between the Estom Yumeka Maidu
of the Enterprise Rancheria and the County of Yuba identifies the possibility of
state or federal changes in gaming laws, financial obligations or changes which
materially impacts the parties. Indeed, 8 years later there are a number of
state, federal and financial changes.
Changes at the State Level:
• Governor Schwarzenegger has established judicially enforceable
agreements in the newly negotiated compacts. The new compacts
include "disincentives" for local government to host off-reservation
casinos. Revenue sharing is with the State of California, not with
local governments. Local government may anticipate only land use
and service mitigations in Schwarzenegger compacts.
• May 18, 2005, Governor Schwarzenegger authored a Proclamation
that clearly outlined when he would support off reservation gaming.
• November 2005, Yuba County Voters voted NO Casino by 52%.
• January 2009, Governor Schwarzenegger made clear he would not
grant gubernatorial concurrence for the acquisition of after acquired
lands for the development of a casino some 50 miles from the
February 8, 2010
Page 5 of 7
established Indian lands of the Enterprise Rancheria outside of the
Tribes established aboriginal territory.
Changes at the Federal Level:
• Significant Policy concerns over the "Sole Proprietary Interest
Requirement". The proposed site is encumbered by the ownership of
the developer/investor/ proposed management company. Herein lays
a potential violation of the Indian Gaming Regulatory Act's (IGRA) sole
proprietary interest requirement. IGRA requires, as one of the
necessary conditions for a tribe to open and operate a casino, a
gaming ordinance approved by the national Indian Gaming
Commission un USC Section 2710(b)(B): 2710(d)(1)(A). For approval
of a gaming ordinance, IGRA requires among other things, that the
Indian tribe will have the sole proprietary inters and responsibility for
the conduct of any gaming activity. As such, should a tribe and a
contractor execute an agreement that gives to the contractor some
proprietary interest in the gaming operating, the agreement violates
both the tribal gaming ordinance and IGRA. These contracts are
-routinely denied.
• This proposed acquisition violates the Secretary's Trust Responsibility
to other federally recognized tribes. The Secretary of the Interior is
obligated to protect the interests of ALL Tribes. Approving a land
acquisition for after acquired land outside of a Tribes aboriginal
territory, 50 miles from its established Rancheria along a highway
substantially enhances the economic ability of the Enterprise Tribe
and its investors over other nearby Tribes that have remained on their
established Indian lands in compliance with IGRA.
• February 25, 2009, the United States Supreme Court made it clear
that the Secretary of the Interior lacks authority to transfer land into
trust for Tribes not under federal jurisdiction in 1934. The Enterprise
Band did not start to organize until 1994, so serious questions of the
Tribe being under federal jurisdiction must be resolved.
• September 2009, United States Senators Feinstein, Boxer, Reid,
Ensign, Kly and John McCain have all opposed the proliferation of off
reservation gaming documented in a serious letter to Secretary
Salazar.
Unenforceable promises:
February 8, 2010
Page 6 of 7
The MOU further to obligate the County to support the tribes land acquisition
in return for "unenforceable promises". There is a great deal of inconsistency
in the treatment of promises and representations by the Tribe. Violation of
Section 3, 6, and 7-1 contain breach language. However the remaining sections
contain only promises made by the tribe. For example:
Section 4: there is reference to mutual interest in acting against `crimes
which may be committed against the Tribe, its members, personnel, business
entities or patrons", Why no mirror reference to such crimes committed by
those persons or entities?
Further, in Section 4 with reference to public benefit fraud there is a provision
for a "redacted copy" of a document to be provided. What is the public policy
rational behind this? What is to be redacted? Who decides? Is this to protect
tribal members who might violate the law?
Overall, there is a disconnect with regard to the amount the County is to
receive for law enforcement services. The amount is capped at $565 thousand
dollars. The problem is if the County does not employ adequate personnel or
acquire adequate equipment to provide law enforcement services "at a level at
least equal to that provided to the County as a whole", the tribe may
WITHHOLD up to $565 thousand dollars. So, what if the cost of providing
those services, to reach that level of equality exceeds $565 thousand dollars?
+ These are just a few of the many serious and critical inconsistencies
in this agreement.
Limited Waiver of Sovereignty: It is unclear if the Resolution NO. 02-27
passed by the tribal council on December 18 2002, grants authorization to the
persons signing the MOU. Or if this resolution is binding on fixture tribal
councils.
In Conclusion:
The County in agreeing to the terms of the MOU without proper CEQA review
has opened the county to significant legal exposure.
Will the out of town investors pay the costs associated with proper
environmental studies and mitigations? Will they pay the legal fees the County
will bear because you entered into a MOU with them? With the increased
casino market saturation in California, lenders experiencing tribal loan
defaults, the restructuring of casino development debt and the complexities of
tribal bankruptcy, the development of a casino in the Yuba County is not what
February 8, 2010
Page 7 of 7
it may have appeared to be in 2002. These are particularly contentious
questions now considering the many state, federal and financial policy changes
that have occurred and are still evolving.
Enterprise is the wrong tribe, doing the wrong thing, in the wrong place. You
should rescind the MOU and focus your efforts and energies on projects that
really will bring jobs and prosperity to Yuba County.
Sincerely,
4.0" ZZ141--L-A
Gary7Archuleta
Chairman
cc: Congressman Wally Herger
Senator Sam Aanestad
Congressman Tom McClintock
Assemblyman Dan Logue
Butte County Board of Supervisors
Bureau of Indian Affairs, Central California Agency
Bureau of Indian Affairs, Pacific Regional Office
Governor Arnold Schwarzenegger
Senator Dianne Feinstein
Senator Barbara Boxer
Cal-EPA