HomeMy WebLinkAboutFAI15-0083 Fire Annual Inspection Archive (4)Interoffice- Memorandum
TO: Paul McIntosh, CAO Phone: 538-7111
FROM: Bill Sager, Unit Chief, CDF/BCF
SUBJECT.- Tyme Maidue Tribe Berry Creek Rancheria
DATE: October 10, 2002
DRAFT
In response to the concerning the Draft Environmental Review for the proposed Gold
Country Casino expansion and hotel construction, the Fire Department submits the
following comments for inclusion in the Environmental Impact Report.
Page 5 number 4 Fire Protection Services
This is a real stretch. The Agreement with the Bureau of Indian Affairs that covers trust
lands is with the California Department of Forestry and Fire Protection and covers
vegetation fires as on adjacent State Responsibility Area (SRA) lands. (Public Resource
Code 4141) ) The
cooperative agreement between CDF and Butte County has no nexus with the
CDF/Bureau of Indian Affairs agreement; they are not linked. CDF is reimbursed by
Butte County for services rendered.
The fact remains that the casino is on trust lands that pays no property taxes, but the
casino is paying slot machine per diem payments in accordance with their compact with
the State of California, a portion of which should be coming back to Butte County to pay
for law enforcement and fire protection services. However, per diem payment only
commenced this October and the legislature has not yet determined how the money will
be allocated from the compact. Also, it is our understanding the compact will be
reopened and reviewed this year. This may be one of the items that is reopened, as there
seems to be disagreement as to who gets how much of the per diem.
Section 5 Fire Mitigation Recommendation and Response, page 3, there is no indication
that the sprung buildings will be removed. According to the site plan, they appear to still
be in place and nothing on the site plan indicates their removal. For the record, the
prefabricated "8 wide' original casino is still standing, even though the casino is now in
sprung buildings. The response to Fire Department recommendations also indicates their
desire to have a civil engineer as opposed to fire personnel determine fire safety needs.
The Fire Department believes that County Building and Fire Inspectors should conduct
inspections of the new buildings. The building to house a new ladder truck and the
ladder truck are not in response to the Uniform Fire Code issue but are due to the height
of the structure.
In response to the fifth paragraph of the Response, there is nothing in the document that
spells out required fire flow, so the fire department can evaluate if the planned hydrant
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s stem meets the required fire flow for the building. A qualified Fire Protection Engineer
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should make that determination and that should be included in the plan.
Responding to the sixth paragraph, the notion that there is going to be an increase in call
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volume is not speculative. The fact of the matter is the call volume for both Gold
Country and Feather Falls Casino continues to increase over time. It is
simple math. When there are an additional number of people using casinos, there is
additional call volume. The Fire Department does not know, nor does this document
indicate what the increased casino usage will be. We cannot make any more than a
speculative response as to how much calls would increase, but they definitely will (It
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does not make any sense that the casino would invest this much money on infrastructure
without anticipating an increase in patronage).
In response toparagraph 7, in many cases the developers of large projects assist in the
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necessarY g fundin for new stations, schools, and other needs that accompany a large
development. In this regard, the casino is not being treated differently. We know of
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developments in the Sacramento area that have called for high schools, elementary
schools fire stations sewer, water mains and other infrastructure as part of the proposal
and this has been accepted by the developer. The Fire Department would welcome any
form of financial assistance, combined with ensuring that the per diem collected per slot
machine is returned to the County.
Responding to paragraph 8, the requirements of Butte County are consistent with the
requirements of the State of California in reference to Regulations concerning built-in fire
protection systems. Under section 6.4.2 (b) of the Government Code98004, the Tribe
must meet the requirements of the Uniform Building Codes including the uniform fire,
plumbing, electrical, mechanical and related codes in effect at the time of construction.
The fire service learned only too late after the tragedy at MGM Grand Hotel in Las Vegas
that built-in fire protection systems are the there only to ensure the safety of the people
staying in hotels. It seems only logical that the Tyme Maidu Rancheria would want to
have their guest's safety as a primary concern. The application of proper fire protection
systems to hotel construction will go a long way to mitigate any potential problems later
on.
William R. Sager
Fire Chief
cc: Y. Christopher
T. Crawford
M"I
S. Fowler
H. 113rachais
D. Dyer
W. Wilson
C. Carter
ia
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October 1, 2002
Mr. Paul McIntosh
Chief Administrative Officer
County of Butte
25 County Center Drive
Oroville, CA 95965-3380
7I71010 MAIDLI TRIBE
BERRY CREEK RANCiERIA
g Tyme Way
Oraville, CA 95966
(536) 53459 —FAX (53o) 5WU51
BUMCOUNTY
ADMINISTRATION
OCT - 2 2002
OROVILLE, CALIFORNIA
o�to'P+=u;a ° ?`
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Re: Draft Environmental Review for the Proposed Gold Country Casino Expansion and
Hotel Construction
Dear Mr. McIntosh,
On behalf of the Tyme Maidu Tribe of the Berry Creek Rancheria (Tribe), we would like to
extend our heartfelt appreciation for your comments on the Draft Environmental Review (DER)
for the Proposed Casino/Hotel Construction on the Berry Creek Rancheria.
This letter will set forth findings and or responses to comments received by the Tribe from your
agency. Comments were received in accordance with a Finding of No Significant Impact (Public
Notice) publ'ished on August 19, 2002 in a local County -wide newspaper of general circulation
as defined by Section 6000 Government Code, State of California. The Public Notice indicated
the availability of the above captioned document for public inspection and review and set forth
the criteria for the submission of written comments to the Tribe.
Only issues which address the findings outlined in the DER which are environmental in nature
will be addressed. Objections on the basis of political, social or physical concerns will not be
addressed in so far as they are not an element of NEPA, the process that was utilized by the Tribe
to comply with the Berry Creek Rancheria Tribal Council Ordinance No. 02-02. Comments on
non -environmental issues are not consistent with the focus or purpose of Ordinance No. 02-02.
and the requirements outlined in the Public Notice.
Additionally, our response to your agency comments are based on the requirements outlined in
40 C.F.R. §§ 1503.33, 1503.5, and 1506.6 which in part require that we address comments if they
are (1) substantive and relate to inadequacies in the analysis or methodologies used; (2) identify
new impacts or recommend reasonable new alternatives or mitigation measures; and (3) involve
substantive disagreements or interpretations of significance and scientific conclusions.
We appreciate the comments in your letter dated September 18, 2002 as they indicate a strong
commitment to community. As indicated elsewhere, only issues which are environmental in
nature and are subject to the proposed Tribal action will be addressed. The following represents a
section -by -section response to your letter.
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1. Traffic
COIVIlVENT
The Butte County Public Works Department states that the Draft Environmental Review
significantly understates the problems created by the proposed casino/hotel facility. The most
significant impact is traffic. To assume that the casino/hotel facility will only generate 150 cars
per day (300 ADT, page 41), entering and leaving the facility is seriously understated The hotel
component alone would generate an estimated 1, 081 vehicle trips if all rooms were occupied
(Institute of Transportation Engineers' Trip Generation (OhEdition). Additionally, the traffic
estimate of 16,000 ADT for Olive Highway is substantially greater than the 2001 Caltrans
counts of 12,300 ADT for Highway 162 at Oroville Quincy Highway, which is 1,550feet east of
Tyme Way.
RESPONSE
Trip generation calculations are ascertained utilizing a number of resources. The Institute of
Transportation Engineers' Trip Generation manual is just one of many resources available to
estimate traffic counts by land use activities. Another resource is the U.S. Department of
Transportation, Federal Highway Administration, Development and Application of Trip
Generation Rates manual.
According to the FHA manual, a rural resort is expected to generate 1.04 ADT per room or 107
ADT for our proposed development. Factoring in the restaurants proposed, a 2.27 ADT per seat
or 45 ADT is projected. The commutative total for the hotel and restaurants is estimated to be
152 ADT.
Since the proposal project is a resort, patrons do not have the same circulation patterns as
conventional hotels as projected in the institute of Transportation Engineers' Trip Generation
manual as they tend to stay on site.
It should also be noted that the casino itself would not generate significant increases in traffic as
the proposed development is intended to move the casino operations from the temporary sprung
structures to the proposed building.
According to Caltrans, the ADT for Olive Highway was 16,000 in 1994. The Oroville General
Plan and the Butte County Association of Governments Congestion Management Plan forecast
that the traffic volume would total 32,000 cars per day in the year 2005. In our negotiations with
Caltrans for signalization of Olive Highway, the agency did not disagree with the 16,000 ADT
figure stated in the DER.
COMMENT
While the Tribe has offered to pay the cost of the access road and other improvements, including
a traffic signal at the new intersection, at an estimated cost of $350, 000, this will not mitigate all
the traffic impacts related to the existing development, let alone the proposed development. Also
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it appears the Tribe retracts its offer on page 49, wherein the author states, "Given the costs of
needed roadway improvements, the County of Butte and the Tribe will actively seek State and
Federal funds to constructed needed improvements. " Therefore it is unclear what the Tribe
intends to do to mitigate its traffic impacts, which are greater than a signal at the intersection.
The County of Butte requests that a full traffic study be accomplished by the Tribe to define their
current and proposed traffic impacts and appropriate mitigations.
RESPONSE
Following the enactment of the Indian Gaming Regulatory Act (IGRA), the State of California
and various Indian tribes in California attempted to conclude Tribal -State compacts. However,
the State and the tribes disagreed about the forms of gaming that would be permitted and the
content of the compacts. These - disagreements were ultimately settled, and on September
10,1999, Governor Davis approved fifty-seven class III gaming compacts on behalf of the State
of California. The compacts permit each signatory tribe to operate gaming devices or slot
machines, banking or percentage card games, and any devices or games that the California State
Lottery is authorized to offer. The tribe may initially operate up to 350 slot machines, but, by
participating in a series of draws, a tribe may acquire licenses to operate up to 2,000 slot
machines. The tribe must, however, pay a one-time non-refundable fee of $1,250 for each
gaming device it operates that goes into a Revenue Sharing Trust Fund, which distributes up to
$1.1 million per year to tribes without compacts.
Tribes with compacts must also make yearly payments into the Fund according to a graduated
formula that increases the amount that each tribe must contribute annually per device up to
$4,350. Separately, the compacts create a Special Distribution Fund comprised of payments
made by tribes of between 0% and 13% of the gaming device winnings. Revenue deposited into
the Special Distribution Fund is for appropriation by the Legislature for prescribed purposes
including payments to state agencies for expenses related to Indian gaming,
Given the fact that the Tribe is already contributing annually to the Special Distribution Fund to
mitigate off -Reservation impacts created by our gaming facility, it is our contention that by
working with Caltrans and Butte County, we could collectively assure that Caltrans and the
County of Butte are receiving their fair share of Special Distribution Funds from the annual
payments made by both the Berry Creek and Mooretown Rancheria's. This funding in turn
should be used to improve the circulation of affected roadways. The option of providing funding
for specific Caltrans or Butte County functions is outlined in Section 5.2 (e) of the Tribal/State
Gaming Compact which reads "It is the intent of the parties that Compact Tribes will be
consulted in the process of identifying purposes for grants made to local governments ".
Further, as indicated on page 49 of the DER, Caltrans is receiving annual appropriations from the
Federal Highway Administration under TEA -21 specifically earmarked for transportation
improvement projects on or near Indian lands. Again, it is. our contention that the Tribe and Butte
County should work cooperatively to assure that fair share funding from TEA -21 is allocated for
transportation improvement projects that are mutually beneficial.
2. FloodW&
CONWENT
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There -are severe flooding problems downstream of the Tribe property in this drainage basin and
the project would have a significant impact on storm water drainage. The detention pond
described on page 20 does not comply with County standards in it that it does not contain the
100 year storm flows. Based on information provided in the Draft, it cannot be determined
whether or not this pond mitigates peak runoff downstream to at or below predevelopment levels
as required by County standards. The pond does not appear to be designed to mitigate the peak
runoff from the casino, bawling alley, parking lots or the proposed 103 -room hotel. The Tribe
needs to mitigate its peak runoff to at or below predevelopment levels to not exacerbate existing
flooding problems. The County of Butte requests that the project provided for full containment of
excess runoff from a 100 year event.
RESPONSE
As noted on Page 4 of the DER:
"State and local regulations do not apply to federal trust land Development of the
proposed project, however, will require some physical improvements outside of the
boundaries of the trust property such as the installation of a traffic signal. In such
instances, the off-site improvements will be subject to relevant state and local regulations
including encroachment permits.
With respect to some environmental issues such as food preparation, voluntary
observance of state and local regulations and standards on the federal trust land itself
are cited as a rationale for determining that an adverse environmental effect is avoided
Such compliance is not mandatory, as local and state regulations do not apply to federal
trust property. In such instances, this compliance is noted in the Environmental
Consequences section and is then reiterated as a mitigation measure. "
Therefore, compliance with County Standards is discretionary. The Tribe does however, intend
to voluntarily utilize County standards in respect to stormwater management and has done so in
the past. For example, the drainage study completed in 1995 for the initial construction of Gold
Count Casino recommended increasing the detention and storage volume to 70,500 Wand to
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restrict flow so that the outlet pipe capacity does not exceed the undeveloped runoff flow of 36
CFS. With the new expansion, the Tribe will commission a new drainage study and will improve
our stormwater management system accordingly.
COMIvENT
The project would have a sign cant impact on Sherds Office resources. The Butte County
Sheriffs Office currently expends approximately 460 hours a year providing law enforcement
services to Gold Country Casino and Tyme Rcmcheria, at a cost of $23, 000. The Sheriffs Office
expects that the project would result in an increase of IS% in time spent with the addition of the
hotel/casino complex. This amounts to approximately 530 hours, at a cost of $26,500.
RESPONSE
Public Law 83-280, the 28e Public Law enacted by the 83rd Congress in 1953, was a substantial
transfer of jurisdiction from the federal government to the states in Indian country. This transfer
of jurisdiction was required (or mandatory) for the states specifically mentioned in the Act such
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as California. Indian Tribes, on the other hand, had no choice in the matter. The Indian Tribes,
which were affected by Public Law 280, had to . deal with greatly increased state authority and
state control over a broad range of reservation activities without any tribal consent.
State dissatisfaction has focused upon the failure of the Act to provide federal funding for states
assuming authority under Public Law 280. The states were handed jurisdiction., but denied the
funds necessary to finance it (in today's language - an "unfunded mandate").
While the Tyme Maidu Tribe shares your concerns over the projected increase of costs for law
enforcement on the Berry Creek Rancheria, short of Congressional action, the Tribe has no
leverage in changing Federal law.
It is interesting to note, by the County's own estimate, the proposed project will require 1.45
hours per day of the Butte County Sheriffs Office personnel at the Berry Creek Rancheria. Given
the amount of jobs and income the Tribe is contributing to the local economy, it is our opinion
that this increased law enforcement cost is minor element of contribution by the County.
3. Safety and Emergencv Plan
COQ
The County of Butte requests that a safety and emergency plan be developed for the hotel/casino
complex to facilitate response by local law enforcement for critical incidents and that a service
agreement be entered into wherein the County of Butte would be reimbursed for direct and
indirect cost associated with law enforcement services. Additionally the County of Butte that
voter/repeater radio equipment, antennas, cables, or other remedies be designed into the
construction of the facility to allow uninterrupted law enforcement radio communications
RESPONSE
The DER addresses the issue of emergency response as outlined on page 64, which states:
"The gaming enterprise will employfull time trained security guards for players' comfort
and to act as a deterrent to persons who might otherwise present a threat to public safety
or peaceful conduct of the enterprise. The Tribe will attempt to coordinate its program of
safety for persons and property with the County Sheriff in order to reduce law
enforcement demands. A written safety and emergency plan will be adopted and
distributed to the Butte County Sheriffs Department. "
In -so -far as the County's request to establish a service agreement for direct and indirect costs
reimbursements for first responder calls, other major employers in the County are not requested
to provide funding for this service. The Tyme Maidu Tribe respectfully requests that if the
County chooses to establish a fee-for-service agreement for emergency response for our facility,
that the County demonstrates that the same arrangement is in effect for other major employers in
the County.
4. Fire Protection Services
COMMENT
�.. � _ __ ._ _ ._. `�` .=... .-.n` - _..._ - __�. .�_r_a,C. " ..... w ........_ �_.. tv �` ..� _..• .. .. •-_ .__. .. ..-L:-II.. _ • �_... �._. �. ... •. _.. --� __-. - - `_•_ •_ -.. . _ _ .s._ _ _.- ... _ _.-_J�EIla4A,G•LLW/+a.a:`.- - _ - -.iM� _� '
-t - .r•LiiG'.
The Butte County Fire Department points out that there is no agreement between the County and
the Rancheria to provide fire or emergency medical services to the existing facility. The
Rancheria has been receiving free fire protection services. The Fire Department requests that
the Rancheria either develop its own fire fighting capabilities or enter into a cooperative
agreement with the Butte County Fire Department to provide fire protection services to the
facility.
RESPONSE
'" What the Butte County Fire Department failed to point out is that the County has a Memorandum
-- of Agreement with CDF to assist in providing fire protection services in the County and that
CDF and the Bureau of Indian Affairs have an agreement to provide fire protection services to
both the Berry Creek and Mooretown Rancheria's (on acost-reimbursement basis). Based on
those facts, it is erroneous to state the Rancheria has been receiving free fire protection services.
Further, the Berry Creek Rancheria is a property owner of non -Trust lands within Butte County
and has been faithfully paying property taxes to Butte County since 1994. As you are aware,
property taxes in part provide funding for fire and law enforcement services. As a property -based
taxpayer in Butte County, the Tyme Maidu Tribe respectfully disagrees with the notion that we
are receiving "free services" from the County.
5. Fire Mitigation Recommendations
COMMENT
The Fire Department recommends seven mitigation measures to address the impacts to fire
protection services that would be created by the proposed casirro/hotel facility...
RESPONSE
Our review of the seven mitigation measures recommended by the Fire Department lead us to
conclude that Department did not read the DER, is uninformed about Federal/State/Tribal law or
is simply not willing to continue the government -to -government relationship befitting the County
or Tribe. For example throughout the DER, mention is made that the new facility will be
constructed under the Uniform Building Code. It is correct that the UBC is required under the
Tribal/State Compact as it is also required in accordance with an interpretive rule issued by the
NIGC (Federal Register / Vol. 67, No. 134 / Friday, July 12, 2002) regarding the construction
and maintenance of gaming facilities operating on Indian lands. The NIGC pursued these new
standards due. to provisions of the Indian Gaming Regulatory Act, which require that all tribal
gaming facilities be constructed in a manner that protects the environment and public health and
g g
safety.
Further it is the contention of the Tribe, that in the public interest, it will provide for adequate
protection of the environment, public health and safety for its casino patrons.
As indicated in the DER, the purpose of the new construction is to remove the gaming operations
from the existing sprung buildings to a permanent facility thereby improving the fire safety of
our patrons. Additionally, as an element of design, fire flows will be calculated and a registered
` civil engineer (as opposed to fire personnel) will determine fire safety needs under the UBC and
design appropriate fire safety facilities.
As indicated above as a property -based tax payer in Butte County, the Tyme Maidu Tribe
respectfully disagrees with the notion that we are receiving "free services" from the County and
will not consider funding a new building and ladder truck for the Fire Department as this cost is
'
prohibitive (estimated at nearly one -million dollars). Instead, we are constructing our facility to
r
meet or exceed UBC requirements for fire safety and will voluntarily request a State Fire
Marshal to inspect the facilities.
The proposed project is in the final stages of design. Included in the design standards and
specifications are the fire flow requirements, placement of hydrants, and water main
improvements. According to the Oroville Wyandotte Irrigation District and the State Water
1' Resources Department, water resources to serve the project are readily available. Rest assured
that the hydrant system will be upgraded to service the new facility in a manner that protects
public safety.
The notion to assess a cost per call or other fire service agreement as recommended in your letter
is speculative at this time. As indicated in your September 18, 2002 letter "It is expected that the
call load at the Rancheria will increase significantly with the proposed construction." Without
r' substantiative data or facts, the comment that fire calls will increase is pure speculation. As such
f ' • which re requires that we address comments if the are(1)they do not meet a mitigation nexusq Y
substantive and relate to inadequacies in the analysis or methodologies used; (2) identify new
impacts or recommend reasonable new alternatives or mitigation measures; and (3) involve
substantive disagreements or interpretations of significance and scientific conclusions.
The notion that the Tribe purchase a ladder truck, provide staffing, remodel the Kelly Ridge Fire
Station, and provide additional capital improvements is an expensive proposition that could very
well exceed $1 million dollars. As such, it is not a financially viable option and could be
construed as an inequitable and arbitrary assessment. A conventional developer or big box
retailer would not be "assessed" the same level treatment if they were to construct a lame or tall
building in Butte County. Although an unreasonable request, the Tribe might consider some
other form of financial assistance at a later time.
Finally, as noted on Page 4 of the DER "State crud local regulations do not apply to federal trust
C- land ". To state "the hotel must be developed to meet the fire department's requirements." is a
junsdictional misrepresentation. As indicated on page 4 of the DER the Tribe will consider
voluntary observance of state and local regulations and standards for the proposed development.
For fire safety access, it will be done in accordance with the State Fire Marshal requirements and
not necessarily those of the Butte County Fire Department.
6, Aesthetic Impact
CONNIENT
The proposed parking lot will create significant aesthetic impact. Trees should be planted in the
parking lots, both existing and proposed to help soften the view and to help reduce heat
generated by the paved surfaces. All lighting in the parking lot should be fully shielded to
prevent glare and excess light. The County of Butte requests that these issues be identi, fled in the
project.
RESPONSE
The Tribe is intending to plant trees and other pleasing landscaping throughout the project in
order to provide for a visually pleasant development. In addition, pale 50 of the DER states that
the nighttime visual installing light fixtures, which minimize uplighting, will preserve character.
Typically, these are low sodium lights that have a softer glow. As the design of the facility
evolves, we will make certain that the lighting schedule reflects the County's concerns.
In closing, on behalf of the Tyme Maidu Tribe of the Berry Creek Rancheria we appreciate the
efforts that the County of Butte has expended on the review of the proposed project. We look
forward to a continued government -to -government relationship with the County of Butte.
If you desire additional information or clarification, please do not hesitate to contact me.
Sincerely,
m EAwards
Tyme Maidu Tribe of the Berry Creek Rancheria
BUTTE COUNTY
Inter -Departmental Memorandum
To: Yvonne Christopher, Development Services
From: Bill Sager, Fire Chief
Subject: Gold County Draft Ern;--- nnf!2l Ppview
Date: September 9, 2002
CDF/Butte Fire Department h;
Review document and submit
The bottom of page 31E
Oroville City Fire Depe
Rancheria and the sur
aft Environmental
to a serious problem it A e y
Department, through � ^ 'ith the California
Department of Forestr _rrP �,, -r j�� 7 -1' 0 Z"''-, ction for the area
surrounding the Ranc 2' ty Fire have
jurisdictional res onsi A�960�� Z' �0A 4 �T aterial incidents.
1 p. � nor ..: r t 0aniTo 7/4 ;s for its separate
The Rancheria, since opening, Tress uuu„ o---�-�--
jurisdiction. In order to continue receiv* g services, it is imperative that the
Rancheria either develop its own ca bilities or enter into a cooperative
agreement with Butte County Fire epartment. Oroville City has entered into a
mutual aid agreement with Butt County for mutual protection. The Rancheria is
not included in this agreeme .
2. On page 36 it is noted th Squad 64 provides basic life support services. Squad
64 has not existed for veral years and has been replaced by Rescue 64. It
should be sufficient state that, "The CDF/Butte County Fire Department also
provides basic life s
Do
services from the Kelly Ridge Fire Station that is
located approximately two miles east of the Berry Creek Rancheria and has an
estimated response time of four minutes."
3. Paragraph #1 (above) should also note that at this time the CDF/ Butte County
Fire has no agreement to provide fire or emergency medical services to the
Rancheria. The Rancheria is a separate government entity that must provide its
own fire and medical response system, or the Rancheria must enter into an
agreement with the CDF/Butte County Fire. Just as a new city must provide for
itself; it is also required that the Rancheria provide or contract for its needs.
4. Page 36 notes that domestic water is obtained from Lake Oroville. In fact,
ment and the
r the Berry Creek
,�-
r � f
orect and points
tt Count Fire
to a serious problem it A e y
Department, through � ^ 'ith the California
Department of Forestr _rrP �,, -r j�� 7 -1' 0 Z"''-, ction for the area
surrounding the Ranc 2' ty Fire have
jurisdictional res onsi A�960�� Z' �0A 4 �T aterial incidents.
1 p. � nor ..: r t 0aniTo 7/4 ;s for its separate
The Rancheria, since opening, Tress uuu„ o---�-�--
jurisdiction. In order to continue receiv* g services, it is imperative that the
Rancheria either develop its own ca bilities or enter into a cooperative
agreement with Butte County Fire epartment. Oroville City has entered into a
mutual aid agreement with Butt County for mutual protection. The Rancheria is
not included in this agreeme .
2. On page 36 it is noted th Squad 64 provides basic life support services. Squad
64 has not existed for veral years and has been replaced by Rescue 64. It
should be sufficient state that, "The CDF/Butte County Fire Department also
provides basic life s
Do
services from the Kelly Ridge Fire Station that is
located approximately two miles east of the Berry Creek Rancheria and has an
estimated response time of four minutes."
3. Paragraph #1 (above) should also note that at this time the CDF/ Butte County
Fire has no agreement to provide fire or emergency medical services to the
Rancheria. The Rancheria is a separate government entity that must provide its
own fire and medical response system, or the Rancheria must enter into an
agreement with the CDF/Butte County Fire. Just as a new city must provide for
itself; it is also required that the Rancheria provide or contract for its needs.
4. Page 36 notes that domestic water is obtained from Lake Oroville. In fact,
icy o Of 1
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domestic water comes from other sources as distributed by the Oroville-
Wyandotte
Irrigation District.
We do not agree with the conclusion of the statement that there will be no
environmental impact from the proposed hotel/casino. There are many impacts upon
the Fire Department. The impacts include, but are not limited to, additional
responses to fires, medical emergencies and traffic collisions. These impacts affect
the fire department in two ways: f 11 The increased number of calls cost money for
---- fuel, wages, quipment and wear and teary as well as increasing the safety risk to fire
fighters. [2]'V*mMK6f6--lt-�-a�ire—responseto one location that unit is no longer
available to respond to another location. In the current context that could
conceivably mean that a fire response to the casino (who don't pay for the service) is
taking place while another call for service goes unattended else where in the area
(from people who do pay for the service.) As the casino expands its operations the
impacts also expand. Below are mitigation measures:
1. The Rancheria is required by the Tribal -State Compact (Section 6.4.2(b)) to
adopt building and safety code standards identical to Butte County or adopt the
Uniform Building Code and all related codes. This requirement appears to have
been neglected in past construction. The Rancheria should provide proof that this
requirement is being met. It is imperative that the Rancheria follow this
requirement and allow fire department and building inspectors to carry out proper
plan checking and on-site inspections as required by the codes.
2. The current tent structures are connected by an unprotected passageway to the
portable buildings. Smoke from a fire in the portables could easily move into the
tent structures causing an extreme safety hazard. The proposal presented in this
draft environmental review does not indicate the find disposition of the portables.
Appropriate automatic fire doors are needed between the structures.
3. The hydrant system serving the facility is currently inadequate, and with the
y g
construction the inadequacy may increase. One hydrant is on the
proposed co q
wrong side of the driveway,and large diameter hose would block exit and entry
proposed by the main road. ro
The osed hotellcasino will have an estimated required fire
gallons minute. The current available fire flow is about 3,800
flow of 5, 3QQ g per Y
gallons per
minute. Several new hydrants and water mains may be required to
meet appropriate spacing and fire flow requirements.
mentioned in the draft environmental statement, automatic sprinkler systems
will be required throughout the structure and special extinguishing systems will
hrou g
be required in kitchens. The statement does not mention other types of required
construction standards such as fire department elevator control, standpipe
systems �
'n stairwells, etc. These safety measures are all required and need to
meet code.
5
The current casino is already the busiest call address in the Kelly Ridge area.
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The only other facility served by the Butte County Fire Department that may
compete in number of calls is the Feather Falls Casino. The Berry Creek
Rancheria is receiving free fire protection and this unfair liability must end. The
County recognizes that the Rancheria pays money to the State to help defray
local costs. This money has not been made available to butte County, and it is
not appropriate for the County to spend local tax dollars on a jurisdiction that
pays no local property tax. The Fire Department recommends that the Rancheria
pay for fire service through the Butte County Fire Department. The cost of an
agreement could be based upon one of several different methodologies: cost per
call; cost per year; or some combination of costs representative of expenses. It is
expected that the call load at the Rancheria will increase significantly with the
proposed construction.
6. The proposed hotel/casino will be one of the tallest and largest buildings in the
unincorporated area of Butte County. The occupancy and height of the building
will create significant impacts upon the fire department. These impacts and the
public's expectation of service cannot be ignored, and yet, the Butte County Fire
Department does not own the equipment necessary to provide full fire protection
at a high-rise hotel. The mitigation measure for a high rise is for the Rancheria to
purchase a ladder truck of a size and design as determined by the Butte County
Fire Department. In order to staff and house a ladder truck at the Kelly Ridge Fire
Station the Rancheria would also provide money for staffing and for remodel at
the fire station. It is common in many localities for developers of new buildings
and subdivisions to provide equipment and personnel. The Rancheria may find
there are savings on insurance when proper fire protection is provided to their
facility.
7. Access to the facility is extremely poor. Access to all sides of all structures, tent
casinos, bowling alley and high rise hotel must be developed to meet the fire
department's requirements. This includes adequate paving to allow the raising of
aerial ladders at positions predetermined by the fire department.
If there are any questions please contact myself, Dan Dyer at 5382131 or Ted
Crawford at 538-7994.
CC: Dyer, Dan
Carter, Craig
Brachais, Henri
Wilson, Wayne
Brown, Michael
Shorrock, Mike
Crawford, Ted
Fowler, Steve
ti ` `moi
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BUTTE COUNTY
Inter -Departmental Memorandum
To: Yvonne Christopher, Development Services
From: Bill Sager, Fire Chief
Subject: Gold County Draft Environmental Review
Date: September 9, 2002
CDF/Butte Fire Department has reviewed the Gold Country Casino Draft Environmental
Review document and submits the following comments:
1. The bottom of page 35 states that the Butte County Fire Department and the
Oroville City Fire Department provide fire protection services for the Berry Creek
Rancheria and the surrounding vicinity. This statement is not correct and points
to a serious problem in fire protection for the Rancheria. The Butte County dire
Department, through along -standing cooperative agreement with the California
Department of Forestry and Fire Protection, provides fire protection for the area
surrounding the Rancheria. Both the CDF Fire and Butte County Fire have
jurisdictional responsibilities for fire, rescue, and hazardous material incidents.
The Rancheria, since opening, has been receiving free services for its separate
jurisdiction. In order to continue receiving services, it is imperative that the
Rancheria either develop its own capabilities or enter into a cooperative
agreement with Butte County Fire Department. Oroville City has entered into a
mutual aid agreement with Butte County for mutual protection. The Rancheria is
not included in this agreement.
2. On page 36 it is noted that Squad 64 provides basic life support services. Squad
64 has not existed for several years and has been replaced by Rescue 64. It
should be sufficient to state that, "The CDF/Bufte County Fire Department also
provides basic life support services from the Kelly Ridge Fire Station that is
located approximately two miles east of the Berry Creek Rancheria and has an
estimated response time of four minutes."
3. Paragraph #1 (above) should also note that at this time the CDF/ Butte County
Fire has no agreement to provide fire or emergency medical services to the
Rancheria. The Rancheria is a separate government entity that must provide its
own fire and medical response system, or the Rancheria must enter into an
agreement with the CDF/Butte County Fire. Just as a new city must provide for
itself; it is also required that the Rancheria provide or contract for its needs.
4. Page 36 notes that domestic water is obtained from Lake Oroville. In fact,
50
domestic water comes from other sources as distributed by the Oroville-
Wyandotte Irrigation District.
We do not agree with the conclusion of the statement that there will be no
environmental impact from the proposed hotel/casino. There are many impacts upon
the Fire Department. The impacts include, but are not limited to, additional
responses to fires, medical emergencies and traffic collisions. These impacts affect
the fire department in two ways: [1 ]The increased number of calls cost money for
fuel, wages, equipment and wear and tear as well as increasing the safety risk to fire
fighters. [2] When there is a fire response to one location that unit is no longer
available to respond to another location. In the current context that could
conceivably mean that a fire response to the casino (who don't pay for the service) is
taking place while another call for service goes unattended else where in the area
(from people who do pay for the service.) As the casino expands its operations the
impacts also expand. Below are mitigation measures:
1. The Rancheria is required by the Tribal -State Compact (Section 6.4.2(b)) to
adopt building and safety code standards identical to Butte County or adopt the
Uniform Building Code and all related codes. This requirement appears to have
been neglected in past construction. The Rancheria should provide proof that this
requirement is being met. It is imperative that the Rancheria follow this
requirement and allow fire department and building inspectors to carry out proper
plan checking and on-site inspections as required by the codes.
2. The current tent structures are connected by an unprotected passageway to the
portable buildings. Smoke from a fire in the portables could easily move into the
tent structures causing an extreme safety hazard. The proposal presented in this
draft environmental review does not indicate the final disposition of the portables.
Appropriate automatic fire doors are needed between the structures.
serving the facility is currently inadequate, and with the
3. The hydrant system g Y
proposed construction the inadequacyimay increase. one hydrant s on the
wrong side of the driveway, and large diameter hose would block exit and entry
y, g
by the main road. The proposed hotel/casino will have an estimated required fire
flow of 5,300 gallons per minute. The current available fire flow is about 3,800
gallons per minute. Several new hydrants and water mains may be required to
meet appropriate ro riate spacing and fire flow requirements.
the draft environmental statement, automatic sprinkler systems
�. As mentioned in
out the structure and special extinguishing systems will
will be required through .
required
statement does not mention other types ofd
be required in kitchens.
constructio
n standards such as fire department elevator control, standpipe
IIs etc. These safety systems in stairwells, Y measures are all required and need to
meet code.
5. The curreY
nt casino is alread the busiest call address in the Kelly Ridge area.
s• • — •
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It
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- '1t • , r •M _' � . ' a • -. � ' • - f ' . � i •. f '. � . ? y _ . r %, y{ I • r' i _` •y •. �y',a: - a � i^ } ` ' - - Y •
- i. - .. J' ' .'rt. i^ -r' r f • � r - t a . J t - Za - � Y1 >'. ). � `1
Y)w c.., _ '�, ' .ter.. W - 1.. f •• t -r 5' - - t .. 5 7. :'�.j n�� ,..t .r .. ,
The only other facility served by the Butte County Fire Department that may
compete in number of calls is the Feather Falls Casino. The Berry Creek
Rancheria is receiving free fire protection and this unfair liability must end. The
County recognizes that the Rancheria pays money to the State to help defray
local costs. This money has not been made available to Butte County, and it is
not appropriate for the County to spend local tax dollars on a jurisdiction that
pays no local property tax. The Fire Department recommends that the Rancheria
pay for fire service through the Butte County Fire Department. The cost of an
agreement could be based upon one of several different methodologies: cost per
call; cost per year; or some combination of costs representative of expenses. It is
expected that the call load at the Rancheria will increase significantly with the
proposed construction.
6. The proposed hotel/casino will be one of the tallest and largest buildings in the
unincorporated area of Butte County. The occupancy and height of the building
will createg p
significant impacts upon the fire department. These impacts and the
publics expectation ectation of service cannot be ignored, and yet, the Butte County Fire
Departmentequipment does not own the a ui ment necessary to provide full fire protection
at a high-rise hotel The mitigation measure for a high rise is for the Rancheria to
purchase
a ladder truck of a size and design as determined by the Butte County
Fire Department. In order to staff and house a ladder truck at the Kelly Ridge Fire
Station n the Rancheria would also provide money for staffing and for remodel at
the
fire station. It is common in many localities for developers of new buildings
subdivisions to provide equipment and personnel. The Rancheria may find
and p
there are savings on insurance when proper fire protection is provided to their
facility.
7. Access to the facility is extremely poor. Access to all sides of all structures, tent
casinos, bowling aIle and high rise hotel must be developed to meet the fire
ca 9 Y g
departments requirements. This includes adequate paving to allow the raising of
q
aerial ladders at positions predetermined by the fire department.
y q p
If there are an questions lease contact myself, Dan Dyer at 538-2131 or Ted
Crawford at 538-7994.
CC: Dyer, Dan
Carter, Craig
Brachais, Henri
Wilson, Wayne
Brown, Michael
Shorrock, Mike
Crawford, Ted
Fowler, Steve
A: 2
BUTTE COUNTY
Inter -Departmental Memorandum
To: Yvonne Christopher, Development Services
From: Bill Sager, Fire Chief W/
Subject: Gold County Draft Environmental Review
Date: September 9, 2002
CDF/Butte Fire Department has reviewed the Gold Country Casino Draft Environmental
Review document and submits the following comments:
1. The bottom of page 35 states that the Butte County Fire Department and the
Oroville City Fire Department provide fire protection services for the Berry Creek
Rancheria and the surrounding vicinity. This statement is not correct and points
to a serious problem in fire protection for the Rancheria. The Butte County Fire
Department, through a long-standing cooperative agreement with the California
Department of Forestry and Fire Protection, provides fire protection for the area
surrounding the Rancheria. Both the CDF Fire and Butte County Fire have
jurisdictional responsibilities for fire, rescue, and hazardous material incidents.
The Rancheria, since opening, has been receiving free services for its separate
jurisdiction. In order to continue receiving services, it is imperative that the
Rancheria either develop its own capabilities or enter into a cooperative
agreement with Butte County Fire Department. Oroville City has entered into a
mutual aid agreement with Butte County for mutual protection. The Rancheria is
not included in this agreement.
2. On page 36 it is noted that Squad 64 provides basic life support services. Squad
64 has not existed for several years and has been replaced by Rescue 64. It
should be sufficient to state that, "The CDFlButte County Fire Department also
provides basic life support services from the Kelly Ridge Fire Station that is
located approximately two miles east of the Bent' Creek Rancheria and has an
estimated response time of four minutes."
3. Paragraph #1 (above) should also note that at this time the CDF/ Butte County
Fire has no agreement to provide fire or emergency medical services to the
Rancheria. The Rancheria is a separate government entity that must provide its
own fire and medical response system, or the Rancheria must enter into an
agreement with the CDFlButte County Fire. Just as a new city must provide for
itself; it is also required that the Rancheria provide or contract for its needs.
4. Page 36 notes that domestic water is obtained from Lake Oroville. In fact,
domestic water comes from other sources as distributed by the Oroville-
Wyandotte Irrigation District.
We do not agree with the conclusion of the statement that there will be no
environmental impact from the proposed hotel/casino. There are many impacts upon
the Fire Department. The impacts include, but are not limited to, additional
responses to fires, medical emergencies and tragic collisions. These impacts affect
the fire department in two ways: [1 ]The increased number of calls cost money for
fuel, wages, equipment, and wear and tear on that equipment as well as increasing
the safety risk to fire fighters. [2] When there is a fire response to one location that
unit is no longer available to respond to another location. In the current context that
could conceivably mean that a fire response to the casino (who don't pay for the
service) is taking place while another call for service goes unattended else where in
the area (from people who do pay for the service.) As the casino expands its
operations the impacts also expand. Below are mitigation measures:
1. The Rancheria is required by the Tribal -State Compact (Section 6.4.2(b)) to
adopt building and safety code standards identical to Butte County or adopt the
Uniform Building Code and all related codes. This requirement appears to have
been neglected in past construction. The Rancheria should provide proof that this
requirement is being met. It is imperative that the Rancheria follow this
requirement and allow fire department and building inspectors to carry out proper
plan checking and on-site inspections as required by the codes.
2. The current tent structures are connected by an unprotected passageway to the
portable buildings. Smoke from a fire in the portables could easily move into the
tent structures causing an extreme safety hazard. The proposal presented in this
draft environmental review does not indicate the final disposition of the portables.
Appropriate automatic fire doors are needed between the structures.
3. The hydrant system serving the facility is currently inadequate, and with the
proposed construction the inadequacy may increase. One hydrant is on the
wrong side of the driveway, and large diameter hose would block exit and entry
by the main road. The proposed hotel/casino will have an estimated required fire
flow of 5,300 gallons per minute. The current available fire flow is about 3,800
gallons per minute. Several new hydrants and water mains may be required to
meet appropriate spacing and fire flow requirements.
4. As mentioned in the draft environmental statement, automatic sprinkler systems
will be required throughout the structure and special extinguishing systems will
be required in kitchens. The statement does not mention other types of required
construction standards such as fire department elevator control, standpipe
systems in stairwells, etc. These safety measures are all required and need to
meet code.
5. The current casino is already the busiest call address in the Kelly Ridge area.
The only other facility served by the Butte County Fire Department that may
compete in number of calls is the Feather Falls Casino. The Berry Creek
Rancheria is receiving free fire protection and this unfair liability must end. The
County recognizes that the Rancheria pays money to the State to help defray
local costs. This money has not been made available to Butte County, and it is
not appropriate for the County to spend local tax dollars on a jurisdiction that
pays no local property tax. The Fire Department recommends that the Rancheria
pay for fire service through the Butte County Fire Department. The cost of an
agreement could be based upon one of several different methodologies: cost per
call; cost per year; or some combination of costs representative of expenses. It is
expected that the call load at the Rancheria will increase significantly with the
proposed construction.
6. The proposed hotel/casino will be one of the tallest and largest buildings in the
unincorporated area of Butte County. The occupancy and height of the building
will create significant impacts upon the fire department. These impacts and the
public's expectation of service cannot be ignored, and yet, the Butte County Fire
Department does not own the equipment necessary to provide full fire protection
at a high-rise hotel. The mitigation measure for a high rise is for the Rancheria to
purchase a ladder truck of a size and design as determined by the Butte County
Fire Department. In order to staff and house a ladder truck at the Kelly Ridge Fire
Station the Rancheria would also provide money for staffing and for remodel at
the fire station. It is common in many localities for developers of new buildings
and subdivisions to provide equipment and personnel. The Rancheria may find
there are savings on insurance when proper fire protection is provided to their
facility.
7. Access to the facility is extremely poor. Access to all sides of all structures, tent
casinos, bowling alley and high rise hotel must be developed to meet the fire
department's requirements. This includes adequate paving to allow the raising of
aerial ladders at positions predetermined by the fire department.
If there are any questions please contact myself, Dan Dyer at 538-2131 or Ted
Crawford at 538-7994.
CC: Dyer, Dan
Carter, Craig
Brachais, Henri
Wilson, Wayne
Brown, Michael
Shorrock, Mike
Crawford, Ted
Fowler, Steve
Ted
rom: Sager, Bill
ent: Friday, September 06, 2002 2:34 PM
o: Dyer, Dan; Crawford, Ted; Carter, Craig; Brachais, Henri; Wilson, Wayne; Brown, Michael;
Shorrock, Mike
;c; BTU Kelly Ridge Stn; BTU Oroville Stn; Clemens, Mike
lubject: RE: Casino Environmental statement suggested FD response
Tome additional thoughts.
i I I Sager
nit Chief, Butte
-----Original Message -----
From: Dyer, Dan
Sent: Friday, September 06, 2002 11:52 AM
To: Crawford, Ted; Sager, Bill; Carter, Craig; Brachais, Henri; Wilson, Wayne; Brown, Michael; Shorrock, Mike
Cc: BTU Kelly Ridge Stn; BTU Oroville Stn; Clemens, Mike
Subject: Casino Environmental statement suggested FD response
Here is a suggested fire department response to the Gold Country Casino Draft Environmental Review:
The Fire Department finds the following errors:
The bottom of page 35 states that the Butte County Fire Department and the Oroville City Fire
Department provide fire protection services for the Berry Creek Rancheria and the surrounding vicinity.
This statement is not correct and points to a serious problem in fire protection for the Rancheria. The
Butte County Fire Department, through a long-standing cooperative agreement with the California
Department of Forestry and Fire Protection, provides fire protection for the area surrounding the
Rancheria. Both the CDF Fire and Butte County Fire have jurisdictional responsibilities for fire, rescue,
and hazardous material incidents. The Rancheria, since opening, has been receiving free services for its
separate jurisdiction. In order to continue receiving services, it is imperative that the Rancheria either
develop its own capabilities or enter into a cooperative agreement with Butte County Fire Department.
Oroville City has entered into a mutual aid agreement with Butte County for mutual protection. The
Rancheria is not included in this agreement.
2. On page 36 it is noted that Squad 64 provides basic life support services. Squad 64 has not existed for
several years and has been replaced by Rescue 64. It should be sufficient to state that, "The CDFButte
County Fire Department also provides basic life support services from the Kelly Ridge Fire Station that is
located approximately two miles east of the Berry Creek Rancheria and has an estimated response time of
four minutes."
Paragraph #1 (above) should also note that at this time the CDF/ Butte County Fire has no agreement to
provide fire or [Sager, Bi//J emergency medical services to the Rancheria. The Rancheria is a
separate government entity that must provide its own fire and medical response system, or the Rancheria
must enter into an agreement with the CDFButte County Fire. Just as a new city must provide for itself,
it is also required that the Rancheria provide or contract for its needs.
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4. Page 36 notes that domestic ..titer is obtained from Lake Oroville. In . i, domestic water comes from
other sources as distributed by the Oroville-Wyandotte Irrigation District.
We do not agree with the conclusion of the statement that there will be no environmental impact from the
proposed hotel/casino. There are many impacts upon the Fire Department. [Sager, Bill] The impacts
include, but are not limited to, additional responses to fires, medical emergencies and traffic
collisions. These impacts affect the fire department in two ways: [1] The increased number
of calls cost money for fuel, wages, equipment and wear and tear as well as increasing the
safety risk to firefighters. [2] When there is afire response to one location that unit is no
longer available to respond to another location. In the current context that could
conceivably mean that a fire response to the casino (who don't pay for the service) is taking
place while another call for service goes unattended else where in the area (from people
who do pay for the service.) As the casino expands its operations the impacts also expand.
Below are mitigation measures:
1. The Rancheria is required by the Tribal -State Compact (Section 6.4.2(b)) to adopt building and safety
code standards identical to Butte County or adopt the Uniform Building Code and all related codes. This
requirement appears to have been neglected in past construction. The Rancheria should provide proof
that this requirement is being met. It is imperative that the Rancheria follow this requirement and allow
fire department and building inspectors to carry out proper plan checking and on-site inspections
[Sager, Bill] as required by the codes.
2. The current tent structures are connected by an unprotected passageway to the portable buildings. Smoke
from a fire in the portables could easily move into the tent structures causing an extreme safety hazard.
The proposal presented in this draft enviromnental review does not indicate the final disposition of the
portables. Appropriate automatic fire doors are needed between the structures.
3. The hydrant system serving the facility is currently inadequate, and with the proposed construction the
inadequacy may increase. One hydrant is on the wrong side of the driveway, and large diameter hose
would block exit and entry by the main road. The proposed hotel/casino will have an estimated required
fire flow of 5,300 gallons per minute. The current available fire flow is about 3,800 gallons per minute.
Several new hydrants [Sager, Bill] and water mains may be required to meet appropriate spacing
and fire flow requirements.
4. As mentioned in the draft environmental statement, automatic sprinkler systems will be required
throughout the structure and special extinguishing systems will be required in kitchens. The statement
does not mention other types of required construction standards such as fire department elevator control,
standpipe systems in stairwells, etc. These safety measures are all required [Sager, Bill] and need
to meet code.
5. The current casino is already the busiest call address in the Kelly Ridge area. The only other facility
served by the Butte County Fire Department that may compete in number of calls is the Feather Falls
Casino. The Berry Creek Rancheria is receiving free fire protection and this unfair liability must end. The
County recognizes that the Rancheria pays money to the State to help defray local costs. This money has
not been made available to Butte County, and it is not appropriate for the County to spend local tax
dollars on a jurisdiction that pays no local property tax. The Fire Department recommends that the
Rancheria pay for fire service through the Butte County Fire Department. The cost of an agreement could
be based upon one of several different methodologies: cost per call; cost per year; or some combination
2
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of costs representative of exp-,ses. It is expected that the call load at t Rancheria will increase
significantly with the proposed construction.
6. The proposed hotel/casino will be one of the tallest and largest buildings in the unincorporated area of
Butte County. The occupancy and height of the building will create significant impacts upon the fire
department. These impacts and the public's expectation of service cannot be ignored, and yet, the Butte
County Fire Department does not own the equipment necessary to provide full fire protection at a high-
rise hotel. The mitigation measure for a high rise is for the Rancheria to purchase a ladder truck of a size
and design as determined by the Butte County Fire Department. In order to staff and house a ladder truck
at the Kelly Ridge Fire Station the Rancheria would also provide money for staffing and for remodel at
the fire station. It is common in many localities for developers of new buildings and subdivisions to
provide equipment and personnel. The Rancheria may find there are savings on insurance when proper
fire protection is provided to their facility.
[Sager, Bill]
7. Access to the facility is extremely poor. Access to all sides of all structures, tent
casinos, bowling alley and high rise hotel must be developed to meet the fire
department's requirements. This includes adequate paving to allow the raising of aerial
ladders at positions predetermined by the fire department.
3
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IN REPLY REFER TO:
A
J'�4
United States Department of the interior 2 i D
BUREAU. OF INDIAN AFFAIRS
Pacific Regional Office
2800 Cottage Way
Sacramento, California 95825
NOTICE OF DECISION
J U N - 6 2002
CERTIFIED MAIL —RETURN RECEIPT REQUESTED -7001 0320 0004 5948 0803
Mr. Gary Archuleta, Chairman
Mooretown Rancheria
1 Alverta Drive
Oroville, California 95966
Dear Mr. Archuleta:
This is notice of our decision upon the Mooretown Rancherids application to have the
below -described real property accepted by the United States of America in trust for the
Mooretown Rancheria:
The land referred to herein is situated in the State of California, County of Butte, and is
described as follows:
ALL THAT REAL PROPERTY DESCRIBED AS PARCEL TWO, ACCORDING TO
THAT CERTAIN PARCEL MAP FOR THOMAS A. POOLE AND MANUELA G.
POOLE, AS FILED FOR RECORD IN THE OFFICE OF THE BUTTE COUNTY
RECORDER ON APRIL 30, 1990, IN BOOK 119, MAPS AT PAGES 28, 292 AND 302
BEING A PORTION OF THE NORTHWEST QUARTER OF SECTION 34,
TOWNSHIP 19 NORTH, RANGE 4 EAST, M.D.M, BUTTE COUNTY, CALIFORNIA,
CONTAINING 38.59 ACRES, MORE OR LESS.
EXCEPTING FROM SAID PARCEL TWO THE FOLLOWING DESCRIBED
PARCEL OF LAND:
COMMENCING AT THAT NORTHWEST CORNER OF SAID PARCEL TWO, SAID
CORNER BEING A POINT ON THE CENTERLINE OF ALVERDA DRIVE AND
ALSO BEING THE TRUE POINT OF BEGINNING FOR THE HEREIN DESCRIBED
PARCEL OF LAND; THENCE S 09'38'12" E, ALONG THE WESTERLY LINE OF
SAID PARCEL, 371.41 FEET; THENCE N 89°57'33" E, LEAVING SAID WESTERLY
LINE, 127.96 FEET; THENCE; S 00°02'27" E, 65.00 FEET; THENCE N 89°57'33"E,
295.00 FEET; THENCE N 00°02'27" W, 65.00 FEET; THENCE N 89°57'33" E, 138.00
FEET; THENCE N 00°02'27" W, 119.67 FEET; THENCE N 89°57'33" E, 65.00 FEET;
THENCE N 00002'27" W, 212.67, FEET TO A POINT ON THE NORTH LINE OF
2
SAID PARCEL TWO AND A POINT ON THE CENTERLINE OF ALVERDA DRIVE;
THENCE N 88023'15" W, ALONG THE CENTERLINE OF ALVERDA DRIVE AND
ALONG THE NORTHERLY LINE OF SAID PARCEL TWO, 304.97, TO THE
BEGINNING OF A CURVE TO THE. RIGHT, HAVING A RADIUS OF 5,000.00
FEET, AND A CENTRAL ANGLE OF 0302515411; THENCE WESTERLY ALONG
SAID CURVE AN ARC DISTANCE OF 84.45 FEET, TO THE POINT OF
BEGINNING, THIS EXCEPTION PARCEL CONTAINS 5.45 ACRES, MORE OR
LESS.
NET ACREAGE OF THE RESULTANT PARCEL BEING 33.14 ACRES, MORE OR
LESS.
ti
The above-described parcels contain approximately 33.14 acres, more or less, and are
referred to as Assessor's Parcel Number 036-310-162.
Federal Law authorizes the Secretary of the Interior, or his authorized representative, to
acquire title on behalf of the United States of America for the benefit of Indian tribes.
The applicable act for this acquisition is the Indian Land Consolidation Act of 1983 (25
U.S.C. §2202 et seq). The applicable regulations are set forth in the Code of Federal
Regulations, Title 25, INDIANS, Part 151, as amended.
On March 7, 2001, by certified mail, return receipt requested, we issued notice of, and
sought comments regarding the proposed fee -to -trust application from the California
State Clearinghouse, Office of Planning and Research; Ms. Sara J. Drake, Deputy
Attorney General, State of California; D. Robert Shuman, Deputy Legal Affairs
Secretary, Office of the Governor of California; Butte County Planning Department;
Butte County Board of Supervisors; Butte County Department of Public Works; Butte
County Tax Collector's Office, Butte County Tax Assessoes Office; Butte County Fire
Department; James Edwards, Chairperson, Berry Creek Rancheria; Harvey Angle,
Chairperson, Enterprise Rancheria.
The Butte County Fire Department responded with a letter dated March 21, 2001,
requesting that an annual contribution be made to the fire department to offset the loss of
tax revenue and the anticipated increase in the demand for services. The- Mooretown
Rancheria responded to the March 21, 2001 letter stating, "Our donations to the Oroville
area are well known, with the Tribal Council reviewing donation requests on a weekly
basis. We have always responded to requests for the needs of our community and
county. Our donation of $10,000 last year to the Emergency Services Foundation
provided new backboards and strap systems to many first responders in Butte County.
This April, we hosted a "Kick -Off Luncheon" for ESF at Feather Falls Casino, along with
a donation of $5,000. These donations were made with the understanding that our
contribution to ESF would be used within Butte County, to provide additional equipment
for fire, rescue, and first responders in our county. We have also made donations to other
local fire departments, including two donations to E1 Medio Fire Department totaling
$6,500. It is our sincere hope to continue to expand our working relationship with Butte
County on a government -to -government basis, and along with these agencies, to continue
to help through donations and hand-in-hand participation for improved service to the
residents of Butte County in the area of fire and emergency services." On April 27, 2001,
the Butte County Fire Department responded with a second letter stating, "We regret any
inconvenience caused by our misdirection of our request to the Bureau of Inidan Affairs.
We are still learning." We realize that any payments made to the fire department are out
of the generosity of the Rancheria and are not required by any statute or other policy, so
anything that you do is greatly appreciated." The State of California, Department of
Conservation, responded to the March 7, 2001 Notice of Application with a letter dated
April 6, 2001, citing concerns about the possibility that the subject property is under a
Williamson Act contract or in an agricultural preserve. The Title Evidence prepared by
Fidelity National Title Company does not indicate that the land under a Williamson Act
contract or in an agricultural preserve. In addition, the County of Butte has amended its
General Plan and rezoned the parcels to be consistent with the Tribes future land uses.
Our March 7, 2001 Notice of- Application, was for 38.59, however, the Tribe
subsequently removed 5.45 acres from the application, leaving a net acreage of 33.14
acres, more or less.
Pursuant to 25 CFR 151.10 and 150.11, the following factors were considered in
formulating our decision: (1) need of the tribe for additional land; (2) the purpose for
which the land will be used; (3) impact on the State and its political subdivisions
resulting from removal of the land from the tax rolls; (4) jurisdictional problems and
potential conflict of land use which may arise; (5) whether the Bureau of Indian Affairs is
equipped to discharge the additional responsibilities resulting from the acquisition of the
land in trust status, (6) whether or not contaminants or hazardous substances may be
present on the property, and (7) the location of the land relative to state boundaries and its
distance from the boundaries of the tribe's reservation. Accordingly, the following
analysis of the application is provided:
Factor 1—Need for Additional Land
The Mooretown Rancheria was originally established by the Secretarial Order of June 12,
1894 and consisted of 80 acres. An additional 80 acres was added on October 8, 19152
under the Act of June 30, 1913 (38 Stat. 77-86).
On August 1, 1961, the Secretary of the Interior gave final approval for the termination of
the Mooretown Rancheria and its members under the authority of the Act of August 18,
1958 (72 Stat. 619). The 160 acres was subdivided and distributed in accordance with
the Distribution Plan of the Mooretown Rancheria.
On June 10, 1988 a Stipulation of Judgment (No. C-79-1710 SW) for Butte County, was
filed by the United States District Court, Northern District of. California, rescinding the
termination of the Mooretown Rancheria and its members. However, only one parcel
consisting of 19.69 acres of the original Mooretown Rancheria was restored to individual
Indian ownership in trust status. The remaining 140.31 acres of the original Mooretown
Rancheria are not held in trust for the Tribe or any of its members.
4
Subsequently, the Tribe acquired a 34.76 -acre parcel, a 20.00 -acre parcel, and a 59.54 -
acre parcel for restoration of a land base that is approximately 35 miles away from the
original Mooretown Rancheria. The Secretary has placed the three aforementioned
parcels in trust status for the benefit of the Mooretown Rancheria under the authority of
the Indian Land Consolidation Act of January 12, 1983 (25 U.S.C. §2202).
The proposed addition of 33.14 acres of trust land would make a combined total of
147.44 acres held in trust for the Mooretown Rancheria, which would be approximately
92% of the Tribe's land base prior to termination.
It is our determination that the Mooretown Rancheria has an established need for
additional land in order to facilitate tribal self-determination and economic development.
i.
Factor 2 - Proposed land Use
The proposed project involves the acquisition of land adjacent to the existing trust land
base of the Mooretown Rancheria. This property is referred to as APN 036-310-162, and
is comprised of 33.14 acres, more or less.
The Mooretown Rancheria of California proposes to develop parcel 036-310-162 for a
cultural center, a RV park, and the associated infrastructures. Parcel 036-310-162
consists of approximately 33.14 acres and is contiguous to the existing boundaries of land
held in trust for the Mooretown Rancheria.
Our March 7, 2001 Notice of Land Acquisition Application indicated a.casino over -flow
parking lot; however, the Tribe has removed the 5.45 acre parking lot from the
application. Therefore, this decision does not involve any parking associated with the
existing casino operations. The 5.45 -acre parking lot parcel will remain in fee simple
status for the time being.
However, if the Tribe eventually considers placing the 5.45 -acre parking lot in trust, the
Tribe will be required to begin the application process over at such time and under the
regulations and departmental orders that exist at such time. As such, it is our decision to
close the file for the 5.45 -acre parking lot fee -to -trust application.
Should the Tribe or any other party feel adversely affected by this decision, an appeal
may be filed within thirty (30) days of receipt of this notice with the Interior Board of
Indian Appeals at the address below.
Factor 3—Impact on State and Local Governmenfs Tax Base
The annual Butte County property taxes on the Property for the tax year 2001 are
$4,289.00. The property is taxed at a relatively low rate. In addition, the Tribe makes
generous contributions to the County of Butte, as evidenced by the $21,500 donations to
provide additional equipment for fire, rescue, and first responders.
5
Tax-exempt status is not the reason for the acquisition of land in trust for the Mooretown
Rancheria. The Mooretown Rancheria has established a need for governmental
jurisdiction over the subject property in order for the Tribe -to help facilitate self-
determination and ensuring a land base for future generations.
Factor 4 - Jurisdictional Problems/Potential Conflicts
Tribal jurisdiction in California is subject to P.L. 83-280; therefore, there will be no
change in criminal jurisdiction. The Tribe will assert civil/regulatory jurisdiction.
It does not appear that transfer to trust status would result in jurisdictional conflict.
Factor 5—Whether the BIA is equipped to discharge the additional responsibilities
The Bureau of Indian Affairs has --a trust responsibility for all lands held in trust by the
United States for tribes. Any additional responsibilities resulting from this transaction
will be minimal. As such, the Bureau of Indian Affairs is equipped to administer any
additional responsibilities resulting from this acquisition
Factor 6—Whether or not contaminants or hazardous substances are present
In accordance. with Interior Department Policy (602 DM 2), we are charged with the
responsibility of conducting a site assessment for the purposes of determining the
potential of, and extent of liability for, hazardous substances or other environmental
remediation or injury. The record includes a negative Level 1 `Contaminant Survey
Checklist'reflecting that there were no hazardous materials or contaminants.
Factor 7—The location of the land relative to state boundaries and its distance from the
boundaries of the trib&s reservation
The proposed acquisition does not cross any state boundaries and is in the same county as
the Mooretown Rancheria's existing trust land base. The original Mooretown Rancheria
is located approximately 35 miles from the , subject acquisition parcel. However, the
subject parcel is adjacent to the 34.76 -acre tract of existing trust land which, the Tribe is
recognized by the Secretary of Interior as having governmental jurisdiction over.
It is our conclusion that the Mooretown Rancheria has demonstrated a need for additional
land that falls within the land acquisition policy as set forth by the Secretary of Interior.
National Environmental Policy Act Compliance
An additional requirement that has to be met when considering land acquisition proposals
is the impact upon the human environment pursuant to the criteria of the National
Environmental Policy Act of 1969 (NEPA). The BIA's guidelines for NEPA compliance
are set forth in Part 30 of the Bureau of Indian Affairs Manual (30 BIAM), Supplement 1.
An environmental assessment (EA) for the subject property was prepared resulting in the
6
finalization of a Finding of No Significant Impact (FONSI) on December 1, 2000. No
substantive comments were received during the thirty -day review period. Compliance
with NEPA has been completed.
Conclusion
Based on the foregoing, we at this time issue notice of our intent to accept the proposed
acquisition into trust. Subject acquisition will vest title in the United States of America in
trust for the Mooretown Rancheria in accordance with the Indian Land Consolidation Act
of January 12, 1983 (25 U.S.C. §2202).
Should any of the below -listed known interested parties feel adversely affected by this
decision, an appeal may be filed within thirty (30) days of receipt of this notice with the
Interior Board of Indian Appeals, U.S. Department of the Interior, 801 N. Quincy St.
Suite 300, Arlington, Virginia 22203, in accordance with the regulations in 43 CFR
4.310-4.340 (copy enclosed).
Any notice of appeal to the Board must be signed by the appellant or the appellants legal
counsel, and the notice of the appeal must be mailed within 30 days of the date of receipt
of this notice. The notice of appeal should clearly identify the decision being appealed.
If possible, a copy of this decision should be attached. Any appellant must send copies of
the notice of appeal to: (1) the Assistant Secretary of Indian Affairs, U.S. Department of
Interior 1849 C Street, N.W., MS -4140 -MIB, Washington, D.C. 20240; (2) each
interested party known to the appellant; and (3) this office. Any notice of appeal sent to
the Board of Indian Appeals must certify that copies have been sent to interested parties.
If a notice of appeal is filed, the Board of Indian Appeals will notify appellant of further
appeal procedures.
If no appeal is timely filed, further notice of a final agency action will be issued by the
undersigned pursuant to 25 CFR 151.12(b).
Sincerely,
Acting Regi nal Director
Enclosures
43 CFR 4.310.4.340
cc: See attached
cc: BY CERTIFIED MAIL—RETURN RECIEPTS REQUESTED TO:
California State Clearinghouse (ten copies) -7001 0320 0004 5948 0872
Office of Planning and Research
P.O. Box 3044
Sacramento, California 95812-3044
Ms. Sarah J. Drake, Deputy Attorney General -7001 0320 0004 5948 0841
State of California
Department of Justice
P.O. Box 944255
Sacramento, California 94244-2550
Mr. D. Robert Shuman, Deputy Legal Affairs Secretary -7001 0320 0004 5948 0797
Office of the Governor of California
State Capitol Building
Sacramento, California 95814
Harvey Angle, Chairperson - 7001 0320 0004 5948 0827
Enterprise Rancheria
1940 Feather River Blvd
Oroville, California 95966
Mr. Jim Edwards, Chairperson - 7001 0320 0004 5948 0834
Berry Creek Rancheria
5 Tyme Way
Oroville, California 95 966
Butte County Department of Public Works -7001 0320 0004 5948 0780
# 7 County Center Drive
Oroville, California 95965
Butte County Fire Department -7001 0320 0004 5948 0742
176 Nelson Ave.
Oroville, California 95965-3495
Butte County Planning Department -7001 0320 0004 5948 2227
# 7 County Center Drive
Oroville, California 95965
Butte County Board of Supervisors - 7001 0320 0004 5948 0773
# 25 County Center Drive
Oroville, California 95965
Butte County Tax Collector 7001 0320 0004 5948 3705
# 25 County Center Drive
Qroville, California 95965
Regular Mail:
Superintendent, Central California Agency, BIA,
650 Capitol Mall, Suite 8-500.
Sacramento, California 95814
Id
-01 Ed tion)
ie inte ests
n oft e in-
pprais 1 re -
of pr wing
ng; appeal.
ing, ti e ad -
1 issue a de -
,e all c f the
mited to, a
fair m irket
.asedthe
lent t ereof
suniving
e a lie es-
;erests The
-ight of ap-
an Appeal
,e ofthe d
ith §§4 .31
itrative law
?lets record
for hearing
provided in
-ate record
,ndent and
on together
.on to each
mended at 55
fair market
lased, as set
rt or as de-
tite ol dece-
ar frc m the
, whi hever
)e of he in-
erint ndent
he a minis -
s ha been
such docu-
the dmin-
:quir . The
shal then
ited States
in trust for
ete -ecord.
h the title
,), fu nish a
Excerpt — Title 43, Code of Federal Regulations
C)Mce of the Secretary, Interior
d
intendent, and mail a notice of such ac-
tion together with a copy of the,deci-
sion to each party in interest:
§ 4.308 Disposition of Incopte.
During the pendency,,rbf the probate
and up to the date Of transfer of title
to the United St es 1n trust for the
tribe in accord ce with § 4.307, all in-
come sts P ec�hased byetheotribeeshal
interests
be credit,dt to the estate.
GRo REFERENCE: See 25 CFR part 2 for
pro dures for appeals to Area Directors and
t9olthe Commissioner of the Bureau of Indian
emirs.
GENERAL RULES APPLICABLE TO PRO-
CEEDINGS ON APPEAL BEFORE THE IN-
TERIOR BOARD OF INDIAN APPEALS
SOURCE: 54 FR 6485. Feb. 10. 1989, unless
otherwise noted.
§4.310 Documents.
(a) Filing. The effective date for filing
a notice of appeal or other document
with the Board during the course of an
appeal is the date of mailing or the
date of personal delivery, except that a
motion for the Board
to assume
juris-
diction CFR
over an appeal under
2.20(e) shall be effective the date it is
received by the Board.
(b) Service. Notices of appeal and
pleadings shall be served on all parties
in interest in any proceeding before the
Interior Board of Indian Appeals by the
party filing the notice or pleading with
the Board. Service shall be accom-
plished upon personal delivery or mail-
ing. Where a party is represented in a
appeal by an attorney or other rep-
resentative
e
resentative authorized under 43 CF
1.3, service of any document on the at
torney or representative is service on
the party. Where a party is represente
by more than one attorney, service o
any one attorney is sufficient. The ce
tificate of service on an attorney o
representative shall include the nam
of the party whom the attorney or re
resentative represents and indicat
that service was made on the attorne
or representative.
(c) Computation of time for filing a
service. Except as otherwise provided
law, in computing any period of tim
§ 4.311
prescribed for filing and serving a doc-
ument, the day upon whichr vi
sion or document to be appealed oan-
swered was served or the day of any
other event after which a designated
period of time begins to run is not to
be included. The last day of the period
so computed is to be included, unless it
is a Saturday, Sunday, Federal legal
holiday, or other nonbusiness day, in
which event the period runs until the
end of the next day which is not a Sat-,,
urday, Sunday, Federal legal holiday,
or other nonbusiness day. When
time prescribed or allowed is 7 days or
less, intermediate Saturdays, Sundays,
Federal legal holidays, and other non-
business days shall be excluded in the
computation:
(d) Extensions of time. (1) The time for
filing or serving any document except a
notice of appeal may be extended by
the Board.
(2) A request to the Board for an ex-
tension of time must be filed within
the time originally allowed for filing.
(3) For good cause the Board may
grant an extension of time on its Own
initiative.
(e) Retention of documents. All docu-
ments received in evidence at a hearing
or submitted for the record in any pro-
ceeding before the Board will be re-
tained with the official record of the
proceeding. The Board, in its discre-
tion, may permit the withdrawal of
original documents while a case is
pending or after a decision becomes
final upon conditions as required by
the Board.
n
§4.311 Briefs on appeal.
p- (a) The appellant may file an opening
R brief within 30 days after receipt of the
notice of docketing. Appellant shall
serve copies of the opening brief upon
d all interested parties or counsel and
n file a certificate with the Board show-
r- ing service upon the named parties. Op -
r posing parties or counsel shall have 30
e days from receipt of appellant's brief
p- to file answer briefs, copies which
e shall be served upon the appellanto
y counsel and all other parties in inter-
est. A certificate showing service of the
an answer brief upon all parties or counsel
by shall be attached to the answer filed
e with the Board.
83
§ 4.312
(b) Appellant may reply to an an-
swering brief within 15 days from its
receipt. A certificate showing service
of the reply brief upon all parties or
counsel shall be attached to the reply
filed with the Board. Except by special
permission of the Board, no other
briefs will be allowed on appeal.
(c) The Bureau of Indian Affairs shall
be considered an interested party in
any proceeding before the Board. The
Board may request that the Bureau
submit a brief in any case before the
Board.
(d) An original only of each docu-
ment should be filed with the Board.
Documents should not be bound along
the side.
(e) The Board may also specify a date
on or before which a brief is due. Un-
less expedited briefing has been grant-
ed, such date shall not be less than the
appropriate period of time established
in this section.
§ 4.312 Decisions.
Decisions of the Board will be made
in writing and will set forth findings of
fact and conclusions of law. The deci-
sion may adopt, modify, reverse or set
aside any proposed finding, conclusion
or order of an official of the Bureau of
Indian Affairs or an administrative law
judge. Distribution of decisions shall be
made by the Board to all parties con-
cerned. Unless otherwise stated in the
decision, rulings by the Board are final
for the Department and shall be given
immediate effect.
§4.313 Amicus Curiae; intervention;
joinder motions.
(a) Any interested person or Indian
tribe desiring to intervene or to join
other parties or to appear as amicus
curiae or to obtain an order in an ap-
peal before the Board shall apply in
writing to the Board stating the
grounds for the action sought. Permis-
sion to intervene, to join parties, to ap-
pear, or for other relief, may be grant-
ed for purposes and subject to limita-
tions established by the Board. This
section shall be liberally construed.
(b) Motions to intervene, to appear as
amicus curiae, to join additional par-
ties, or to obtain an order in an appeal
pending before the Board shall be
84
43 CFR Subtitle A (10-1-01 Ediflon)
served in the same manner as appeal
briefs.
§4.314 Exhaustion of administrative
remedies.
(a) No decision of an administrative
law judge or an official of the Bureau
of Indian Affairs, which at the time of
its rendition is subject to appeal to the
Board, shall be considered final so as to
constitute agency action subject to ju-
dicial review under 5 U.S.C. 704, unless
made effective pending decision on ap-
peal by order of the Board.
(b) No further appeal will lie within
the Department from a decision of the
Board.
(c) The filing of a petition for recon-
sideration is not required to exhaust
administrative remedies.
(54 FR 6485, Feb. 10. 1989: 54 FR 7504. Feb. 21.
1989)
§ 4.315 Reconsideration.
(a) Reconsideration of a decision of
the Board will be granted only in ex-
traordinary circumstances. Any party
to the decision may petition for recon-
sideration. The petition must be filed
with the Board within 30 days from the
date of the decision and shall contain a
detailed statement of the reasons why
reconsideration should be granted.
(b) A party may file only one petition
for reconsideration.
(c) The filing of a petition shall not
stay the effect of any decision or order
and shall not affect the finality of any
decision or order for purposes of judi-
cial review, unless so ordered by the
Board.
§ 4.316 Remands from courts.
Whenever any matter is remanded
from any court to the Board for further
proceedings, the Board will either re-
mand the matter to an administrative
law judge or to the Bureau of Indian
Affairs, or to the extent the court's di-
rective and time limitations will per-
mit, the parties shall be allowed an op-
portunity to submit to the Board a re-
port recommending procedures for it to
follow to comply with the court's
order. The Board will enter special or-
ders governing matters on remand.
14.317 Steri
(a) Ingictn
- with respec
fore the B(
Chief Ads
Board or V
signed the r
(b) Disqu
Live judge r
accordance
recognized
the judge
priate. I:
Board, a pa
sonal bias c
stantiating
tive judge
draw, the
Hearings w
the matter
§4.318 Soo
An appea
issues whic
trative law
rehearing. i
&I.purchase
official of t
on review.
Cally limit,(
of the Code
Board shall
of -review a
ent authon
rest a mani
appropriate
-. APPEAL'
APPS&
SOURCE: 54
otherwise no
§ 4.320 Wb
(a) A par
appeal to tl
a ministra
for reheart
or regardii
eats in a de
(b) Notice
from the d<
lant shall
peal signet
attorney.c
tive as pro
Board of
Hearings a
of the Inte
itrative
Bureau
time of
1 to he
so aE to
t to ju-
unlss
on p -
wit in
I of the
Feb.l 21,
pion of
in ax -
party
rec n-
�e fi ed
om 1he
-itai a
is y
d.
etit on
111 not
order
of any
f j u i -
>y the
Ianed
.rt
er
er e -
rat.
ve
•t's
ii -
d per -
am p-
1 a e -
r it to
our 's
tal r -
i.
Office of the Secretary, Interior
§4.317 Standards of conduct.
(a) Inquiries about cases. All inquiries
with respect to any matter pending be-
fore the Board shall be made to the
Chief Administrative Judge of the
Board or the administrative judge as-
signed the matter.
(b) Disqualification. An administra-
tive judge may withdraw from a case in
accordance with standards found in the
recognized canons of judicial ethics if
the judge deems such action appro-
priate. If, prior to a decision of the
Board, a party files an affidavit of per-
sonal bias or disqualification with sub-
stantiating facts, and the administra-
tive judge concerned does not with-
draw, the Director of the Office of
Hearings and Appeals shall determine
the matter of disqualification.
§ 4.318 Scope of review.
An appeal shall be limited to those
issues which were before the adminis-
trative law judge upon the petition for
rehearing, reopening, or regarding trib-
al purchase of interests, or before the
official of the Bureau of Indian Affairs
on review. However, except as specifi-
cally limited in this part or in title 25
of the Code of Federal Regulations, the
Board shall not be limited in its scope
of review and may exercise the inher-
ent authority of the Secretary to cor-
rect a manifest injustice or error where
appropriate.
APPEALS TO THE BOARD OF INDIAN
APPEALS IN PROBATE MATTERS
SouRcE: 54 FR 6487, Feb. 10. 1989. unless
otherwise noted.
§4.320 Who may appeal.
(a) A party in interest has a right to
appeal to the Board from an order of an
administrative law judge on a petition
for rehearing, a petition for reopening,
or regarding tribal purchase of inter-
ests in a deceased Indian's trust estate.
(b) Notice of Appeal. Within 60 days
from the date of the decision, an appel-
lant shall file a written notice of ap-
peal signed by appellant, appellant's
attorney, or other qualified representa-
tive as provided in 43 CFR 1.3, with the
Board of Indian Appeals, Office of
Hearings and Appeals. U.S. Department
of the Interior, 4015 Wilson Boulevard,
§ 4.321
Arlington, Virginia 22203. A statement
of the errors of fact and law upon
which the appeal is based shall be in-
cluded in either the notice of appeal or
in any brief filed. The notice of appeal
shall include the names and addresses
of parties served. A notice of appeal
not timely filed shall be dismissed for
lack of jurisdiction.
(c) Service of copies of notice of appeal.
The appellant shall personally deliver
or mail the original notice of appeal to
the Board of Indian Appeals. A copy'
shall be served upon the administrative
law judge whose decision is appealed as
well as all interested parties. The no-
tice of appeal filed with the Board shall
include a certification that service was
made as required by this section.
(d) Action by administrative law judge;
record inspection. The administrative
law judge, upon receiving a copy of the
notice of appeal, shall notify the Su-
perintendent concerned to return the
duplicate record filed under §§4.236(b)
and 4.241(d), or under §4.242(f) of this
part, to the Land Titles and Records
Office designated under §4.236(b) of this
part. The duplicate record shall be con-
formed to the original by the Land Ti-
tles and Records Office and shall there-
after be available for inspection either
at the Land Titles and Records Office
or at the office of the Superintendent.
In those cases in which a transcript of
the hearing was not prepared, the ad-
ministrative law judge shall have a
transcript prepared which shall be for-
warded to the Board within 30 days
from receipt of a copy of the notice of
appeal.
(54 FR 6487, Feb. 10. 1989, as amended at 64
FR 46152. Aug. 24. 1999: 65 FR 25450. May 2,
2000: 66 FR 32890. June 18, 2001: 66 FR 33741.
June 25. 20011
85
§4.321 Notice of transmittal of record
on appeaL
The original record on appeal shall be
forwarded -by the Land Titles and
Records Office to the Board by cer-
tified mail. Any objection to the record
as constituted shall be filed with the
Board within 15 days of receipt of the
notice of docketing issued under §4.332
of this part.
§ 4.322
§ 4.322 Docketing.
The appeal shall be docketed by the
Board upon receipt of the administra-
tive record from the Land Titles and
Records Office. All interested parties
as shown by the record on appeal shall
be notified of the docketing. The dock-
eting notice shall specify the time
within which briefs may be filed and
shall cite the procedural regulations
governing the appeal.
§4.323 Disposition of the record.
Subsequent to a decision of the
Board. other than remands, the record
filed with the Board and all documents
added during the appeal proceedings,
including any transcripts prepared be-
cause of the appeal and the Board's de-
cision, shall be forwarded by the Board
to the Land Titles and Records Office
designated under §4.236(b) of this part.
Upon receipt of the record by the Land
Titles and Records Office, the duplicate
record required by §4.320(c) of this part
shall be conformed to the original and
forwarded to the Superintendent con-
cerned.
APPEALS TO THE BOARD OF INDIAN AP-
PEALS FROM ADMINISTRATIVE ACTIONS
OF OFFICIALS OF THE BUREAU OF IN-
DIAN AFFAIRS: ADMINISTRATIVE RE-
VIEW IN OTHER INDIAN ATTERSOT
REI AT -IN TG O PROBATE PROCEEDINGS
SOURCE: 54 FR 6487, Feb. 10, 1989, unless
otherwise noted.
43 CFR Subtitle A (10-1-01 Edition)
gation or request, the Board shall not
adjudicate:
(1) Tribal enrollment disputes;
(2) Matters decided by the Bureau of
Indian Affairs through exercise of its
discretionary authority; or
(3) Appeals from decisions pertaining
to final recommendations or actions by
officials of the Minerals Management
Service, unless the decision is based on
an interpretation of Federal Indian law
(decisions not so based which arise
from determinations of the Minerals
Management Service, are appealable to
the Interior Board of Land Appeals in
acordance with 43 CFR 4.410).
§4 . 331 Who may appeal.
Any interested party affected by a
final administrative action or decision
of an official of the Bureau of Indian
Affairs issued under regulations in title
25 of the Code of Federal Regulations
may appeal to the Board of Indian Ap-
peals, except—
(a) To the extent that decisions
which are subject to appeal to a higher
official within the Bureau of Indian Af-
fairs must first be appealed to that of-
ficial;
(b) Where the decision has been ap-
proved in writing by the Secretary or
Assistant Secretary—Indian Affairs
prior to promulgation; or
(c) Where otherwise provided by law
or regulation.
14.332 Appeal to the Board; how
men; mandatory time for filing;
preparation assistance; require-
ment for bond.
(a) A notice of appeal shall be in
writing, signed by the appellant or by
his attorney of record or other quali-
fied representative as provided by 43
CFR 1.3, and filed with the Board of In-
dian Appeals, Office of Hearings and
Appeals. U.S. Department of the Inte-
rior, 4015 Wilson Boulevard, Arlington,
Virginia 22203, within 30 days after re-
ceipt by the appellant of the decision
from which the appeal is taken. A copy
of the notice of appeal shall simulta-
neously be filed with the Assistant Sec-
retary—Indian Affairs. As required by
§4.333 of this part, the notice of appeal
sent to the Board shall certify that a
copy has been sent to the Assistant
Secretary—Indian Affairs. A notice of
§ 4.330 Scope.
in 25
(a) The pplalso to these hsp special
CFR 2.2 aPPy y
rules. These regulations apply to the
practice and procedure for: (1) Appeals
to the Board of Indian Appeals from ad-
ministrative actions or decisions of of-
ficials of the Bureau of Indian Affairs
issued under regulations in 25 CFR
chapter 1, and (2) administrative re-
view by the Board of Indian Appeals of
other matters pertaining .to Indians
which are referred to it for exercise of
review authority of the Secretary or
the Assistant Secretary—Indian Af-
fairs.
(b) Except as otherwise permitted by
the Secretary or the Assistant Sec-
retary—Indian Affairs by special dele-
86
^.:pfflce of the Sectela V
appeal not timely fil
missed for lack of Jm
tice of appeal shall inc
(1) A full identificati
-(2) A statement of th
appeal and of the retie:
(3) The names and at
Aitional interested
tribes. tribal
having rights or Prim
be affected by a chang
whether or not the? F
terested Peres, u
ceedings•
_ 1.(b) In accordance w
aFnotice of appeal Bba
-for 20 days from rece
wring which time t
retary—Indian Affaix
if
review the appeal
retary—Indian Affair
the Board that he ha:
v.the appeal. any dour
the case filed with t
transmitted to tb
rotary—Indian AfbLb
- • (c) When the appeL
Indian tribe not ref
Be,, the official who
appealed shall, upor
pedant, render such
Propriate in the Pri
peal.
(d) At any time d
of an appeal. an
be - required
any Indian, Indian
ties involved_
.i 4.= Sere of 1
(a) On or before
the notice of appy
- serve a copy of t
I known interested
cial of the Bum
from whose dea
taken, and uPon
retary—Indian A
appeal filed with
I tify that service
by this section
names and add
served. If the ILP]
an Indian tribe
i counsel, the aPP
official of the Bt
I appealed to asci
of the notice o
porting documei
194-172 a
ball not
ureau of
se of i is
ertain'ng
ctions by
zagem nt
, based on
ndian aw
Lich a ise
Minerals
,ealabl to
A nTP'.i.l in
-cted by a
or dec siOn
a of Indian
ions in title
Regulations
India Ap-
,t dec sions
L to a igher
of Ind n Af-
d to t at Of -
has been al)-
Secretary
l)Secret ry or
Tian kffairs
)vided by law
how
m o fo filing+
ace; equire-
ll s1
.ppel
3r o,
be in
or by
quali-
by 43
;he Bo ra of In -
E Hearings and
int of he Inte-
lard, Arlington,
;0 days after re -
of the decision
is take I. A COPY
.1 shall simulta-
ie Assistant Sec -
As Te uired by
notice of appeal
.11 cert fy that a
LO the Assistant
airs. notice of
pfflce of the Secretary, intedof
§ 4.336
dis- (b) The notice of appeal will be con-
rued upon the
timely filed shall beA IlO- side
appeal not jurisdiction. date
missed for lack of
tice of appeal shall include: §4 4
(1) A full identification a the case: R
(2) A statement of the reasons for the file
appeal and of es andiaddresses of 3,11 aef sought;d- sho
(3) The nam parties, ti
ditional interested p or groups
tribal corPoratio ' which may w
trivia. rights or privileges
be affected a change in the decision, P
be affected by participated as in-
arties . the earlier pro- § 4
whether or not they
terested P 2 20(c)
ceedinga• with 25 CFR
(b) In accordance be effective n
a notice of appeal shall t by the Board,
s from re Sec- t
for 20 days time the Assistant
ding which Affairs may decide to
retary—Indian
review the appeal. If the Assistant ec-
retary—indian Affairs properly notifies
the Board that he has decided to review
-oncernthe appeal, any documents
the Board shallli be
the case filed 0 the Assistant Sec -
transmitted tO or
retary—Indian Affairs- is an Indian
I (c) When the appellantcoun-
Indian tribe not represented bdecision
y
sell the official a on r -quest st oao issued f this p,
appealed shall. P ap
pnder such assistan
ellalIt ateein the pre
Paration°of the ap-
peal. any Gime during the pendency
(d) At appeal, an appropriate bond may
Of
b r Wired to protect the interest r
` be req Indian tribe, or other Par -
any Indian'
ties involved. aL
§ 4g Service of notice of aPPe
(a) on or before the date of lsh ing o
the notice of appeal the appellanteat
serve a copy of the notice upon off
known interested party, upon Aff f
tial of the Bureau of he appeal
nppeal
from whose decision the
taken. and upon the Assistant S
ffairs The notice
red to have been se
of personal service or Mailing-
of
Eztensione of time. to
extensions of time
eQuests for be granteuPOU e
documents may except for
ung of good Calfiling ls' notice of appeal
me fixes for
pecified in § 4.332 Of this
hich.
art may not be extendedof
mittal
.336 preparation and
of the Bureau of
record y official
Indian Affairs-
days
Within 20 days after receipt of a
otice of appeal, or upon notice from
he Board, the official of the Bureau of
Indian Affairs whose decision is ap-
pealed shall assemble and t] cord o the
record to the Board. The record on ap-
peal shall include, without limitation.
of transcripts of testimony
all original documents, peti-
copies
taken; 1. tions by which the pro
taken.
or aPp all supplemental
ceeding was initiated:
documents which sea d r ahl ldocumennts
terested parties;
upon which all pre`nOus decisions were
based. e administrative record shall
include a Table of Contents noting. at
.
a nilnimum, inclusion of the following:
(1) The decision appealed from*, copy
(2) The notice of appeal
thereof: and that the recordCOU-
documents
(3) Certification
tains all information and
utilized by the deciding
official in ren-
dering the decision appealed.
(c) If the deciding official receives
the Assistant Sec -
f decided to
all
notification has adminis-
h retary— peal before the
i- review the app tted to the
rs trative record is transmiecord
Board. the administrativAesistant shall
See-
is forwarded to the than to
be forty airs rather
Se
Affairs
of retary—Inman
the Board.
retary—Indian A shall cer-
appeal filed with the Bye required
tif.y that
service was m show the
section and shall arties
by and addresses of all P
If the appellant is an Indian or
names by
served• tribe not represented
an Indian elIant may Tequest the
counsel. the aPp whose decision is
official of the Bureau se CrVie of copies
ealed to ag of taPPea nd any SUP-
appof the notice
porting documents.
194-172 0-01--4
§ 4.336 Docketing- ed a docket
An appeal shall be aZQYs after re-
number by the Board a eal unless the
of the noticeofnotified that
ceipt been properly Affairs
Board has Indian
the Assist&nS�sbi� n over the aP-
has assumedf docketing shall be
t
peal. A notice o Parties as shown
sent o all interested
87
§ 4.337
by the record on appeal upon receipt of
the administrative record. Any objec-
tion to the record as constituted shall
be filed with the Board within 15 days
of receipt of the notice of docketing.
The docketing notice shall specify the
time within which briefs shall be filed,
cite the procedural regulations gov-
erning the appeal and include a copy of
the Table of Contents furnished by the
deciding official.
§ 4.337 Action by the Board.
(a) The Board may make a final deci-
sion, or where the record indicates a
need for further inquiry to resolve a
genuine issue of material fact, the
Board may require a hearing. All hear-
ings shall be conducted by an adminis-
trative law judge of the Office of Hear-
ings and Appeals. The Board may, in
its discretion, grant oral argument be-
fore the Board.
(b) Where the Board finds that one or
more issues involved in an appeal or a
matter referred to it were decided by
the Bureau of Indian Affairs based
upon the exercise of discretionary au-
thority committed to the Bureau, and
the Board has not otherwise been per-
mitted to adjudicate the issue(s) pursu-
ant to §4.330(b) of this part, the Board
shall dismiss the appeal as to the
issue(s) or refer the issue(s) to the As-
sistant Secretary—Indian Affairs for
further consideration.
§4.S38 Submission by administrative
law judge of proposed findings, con-
clusions and recommended deci-
sion.
(a) When an evidentiary hearing pur-
suant to §4.337(a) of this part is con-
cluded, the administrative law judge
shall recommend findings of fact and
conclusions of law, stating the reasons
for such recommendations. A copy of
the recommended decision shall be sent
to each party to the proceeding, the
Bureau official involved, and the
Board. Simultaneously, the entire
record of the proceedings, including the
transcript of the hearing before the ad-
ministrative law judge, shall be for-
warded to the Board.
(b) The administrative law judge
shall advise the parties at the conclu-
sion of the recommended decision of
their right to file exceptions or other
88
43 CFR Subtifle A (10-1-01 Edition)
comments regarding the recommended
decision with the Board in accordance
with § 4.339 of this part.
§4.339 Exceptions or comments re-
garding recommended decision by
administrative law judge.
Within 30 days after receipt of the
recommended decision of the adminis-
trative law judge, any party may file
exceptions to or other comments on
the decision with the Board.
§ 4.340 Disposition of the record.
Subsequent to a decision by the
Board, the record filed with the Board
and all documents added during the ap-
peal proceedings, including the Board's
decision, shall be forwarded to the offi-
cial of the Bureau of Indian Affairs
whose decision was appealed for proper
disposition in accordance with rules
and regulations concerning treatment
of Federal records.
TLEMENT AOT OF 1985; AUTHORQ F
ADmimsTRATrvE JUDGES; DETERM A -
TIONS OF THE HEIRS OF PERSONS HO
DIED ENTITLED TO COMPENSATIO
SouRcE: 56 FR 61383, Dec. 3, 1991, unless
otherwise noted. /
§ 4-M Authority and
(a) The rules and procedl#es set forth
in §§ 4.350 through 4.357 4ply only to
the determination thr gh intestate
succession of the heirs of persons who
died entitled to recei a compensation
under the White h Reservation
Land Settlement t of 1985, Public
Law 99-264 (100 St t. 61), amended by
Public Law 100-1 (101 Stat. 886) and
Public Law 100-234 (101 Stat. 1433).
(b) Wheneverkequested to do so by
the Project Di ctor, an administrative
judge shall d ermine such heirs by ap-
plying inhe ' ante laws in accordance
with the to Earth Reservation Set-
tlement t of 1985 as amended, not-
withstan g the decedent may have
died tes te.
(c) used herein, the following
terms hall have the following mean-
ings:
(1 The term Act means the White
Earth Reservation Land Settlement
A f ig>ib.ae.cimeaeled.
Office of the Sec
(2) The term B
of Indian Appeal,
ings and Appeal
retary.
(3) The term .
the Superintend
Agency, Bureau
other Bureau of
with delegated a;
neapolis Area Di
federal officer ii
Earth Reservat;
Project.
(4) The term P.
means the Proj
presumptive or ;
cadent, or of ar
quently decease
teal heir of the d
(5) The term
monetary sum,
Project Director
8(c) of the Act.
(6) The tern
means an admij
administrative 1
visor, or other
the Office of He
whom the Dire
Hearings and Ai
his authority, a
retary, for maki
tions as provide
tions.
(7) The term a
aggrieved by a fi
upon reconsider;
ministrative jud
with the Board.
(56 FR 61383, Dec. 1
1991, as amended ai
14.351 Co—en
mination prc
(a) Unless an
which is recogni
exists, the Proje
mance the date;
of those person;
receive compen
the administrati
tifying the purp
being submitted
relative to the i
(b) The data sl
limited to:
(1) A copy of
one exists. If th
cafe, then anoth