Opinion

Picayune Rancheria etc. v. North Fork Rancheria etc.

Court
California Court of Appeal
Filed
Dec 16, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 37.7%

The opinion

Filed 12/16/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

PICAYUNE RANCHERIA OF THE

CHUKCHANSI INDIANS, F088551

Plaintiff and Respondent, (Super. Ct. No. MCV072004)

v.

OPINION

NORTH FORK RANCHERIA OF MONO

INDIANS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County. Michael J.

Jurkovich, Judge.

Maier Pfeffer Kim Geary & Cohen, John A. Maier; Wilmer Cutler Pickering Hale

and Dorr, Christopher E. Babbitt, Seth P. Waxman, Joshua A. Vittor, Kyle T. Edwards,

and Britany Riley-Swanbeck for Defendant and Appellant.

Paul Hastings, Navi Singh Dhillon, Sean D. Unger, Lucas V. Grunbaum, Max

Epstein-Shafir for Plaintiff and Respondent.

-ooOoo-

In 2011, the North Fork Rancheria of Mono Indians (North Fork), a federally

recognized tribe, obtained a determination from the Secretary of the United States

Department of the Interior (Interior Secretary) that its proposed off-reservation casino in

Madera County “would be in the best interest of the Indian tribe and its members, and

would not be detrimental to the surrounding community.” (25 U.S.C. § 2719(b)(1)(A).)

In 2012, Governor Edmund G. Brown, Jr. concurred in the Interior Secretary’s

determination and signed a tribal-state compact with North Fork addressing the casino’s

construction and operation. The compact provided for a casino containing 2,000 slot

machines and 40 gaming tables to be built on a 305-acre site north of the City of Madera

just off State Route 99.

In 2013, the Legislature ratified the tribal-state compact. In the November 2014

election, California’s voters rejected the ratification statute. In 2016, the Picayune

Rancheria of the Chukchansi Indians (Picayune-Chukchansi), a federally recognized tribe

that operates an on-reservation casino in Madera County, filed this lawsuit against the

Governor and North Fork, contending the Governor’s concurrence was void ab initio.

Proceedings were stayed pending the Supreme Court’s decision in United Auburn Indian

Community of Auburn Rancheria v. Newsom (2020) 10 Cal.5th 538 (United Auburn) and

this court’s decision in Stand Up for California! v. State of California (2021) 64

Cal.App.5th 197 (Stand Up II). Although “nowhere in the California Constitution is the

Governor granted explicit authority to concur,” the Supreme Court held the Governor had

the implied authority to concur in the Interior Secretary’s determination. (United Auburn,

supra, at p. 543.) We concluded “the people retained the power to annul a concurrence

by the Governor and the voters exercised this retained power at the 2014 election by

impliedly revoking the concurrence for the Madera site.” (Stand Up II, supra, at p. 201.)

In 2024, the trial court agreed with Picayune-Chukchansi’s interpretation of Stand

Up II and granted summary judgment on Picayune-Chukchansi’s declaratory relief claim

against North Fork. The resulting judgment stated: “Through the People’s vote on

Proposition 48, the Governor’s concurrence has been annulled rendering it void ab initio,

and as such the Governor’s concurrence never took effect and is not in effect.”

2.

North Fork appealed, contending the judgment is an improper advisory opinion

because (1) the issue of the state-law status of the Governor’s concurrence is moot; (2)

the state-law status of the Governor’s concurrence has no bearing on its authority to

operate the casino under federal law; and (3) as a matter of substantive state law, the

Governor’s concurrence was not void ab initio. As explained below, we disagree. We

conclude that when California’s voters impliedly revoked the Governor’s concurrence,

they rendered it void ab initio.

Furthermore, we cannot conclude the status of the Governor’s concurrence is a

moot issue as between Picayune-Chukchansi and North Fork (as opposed to mootness

between Picayune-Chukchansi and the Governor). North Fork’s arguments present

questions of federal law for which there is no direct precedent, and we cannot resolve the

merits of those arguments with the level of certainty needed to conclude there is no

prospect of a remedy that can have a practical, tangible impact on the parties.

We therefore affirm the judgment in Picayune-Chukchansi’s favor.

FACTS

Plaintiff Picayune-Chukchansi is a federally recognized Indian tribe that holds

Indian trust lands in Coarsegold, Madera County, California. Picayune-Chukchansi

refers to the trust lands as the tribe’s Rancheria lands and asserts the lands were “first

founded in or around 1912.” Picayune-Chukchansi owns and operates the Chukchansi

Gold Resort & Casino, a class III gaming facility, on the Rancheria lands. The major

transportation corridor closest to the Rancheria lands is State Route 99, which is

approximately 32 miles away.

Defendant and intervenor North Fork also is a federally recognized Indian tribe. A

March 2010 memorandum of the Bureau of Indian Affairs (BIA) of the United States

Department of the Interior (DOI) stated the tribe had more than 1,750 citizens, with 982

adult tribal citizens living in California. A 2016 document executed on behalf of the

Interior Secretary asserted North Fork had more than 2,000 tribal citizens. The 80-acre

3.

North Fork Rancheria is located in the Sierra foothills adjacent to the Sierra National

Forest in a scenic and environmentally sensitive area.

Overview of Federal Statutes1

The Indian Reorganization Act of 1934 (IRA; 25 U.S.C. § 5101 et seq.) authorizes

the Interior Secretary to acquire land and hold it in trust to provide land for Indians. The

Indian Gaming Regulatory Act of 1988 (IGRA; 18 U.S.C. §§ 1166-1167; 25 U.S.C.

§ 2701 et seq.) provides “a statutory basis for the operation of gaming by Indian tribes as

a means of promoting tribal economic development, self-sufficiency, and strong tribal

governments.” (25 U.S.C. § 2702(1).) Class III gaming is the type of gambling practiced

in casinos in Nevada. (25 U.S.C. § 2703(6)–(8).) Class III gaming is lawful on Indian

lands when certain statutory conditions have been met. (See 25 U.S.C. § 2710(d).) For

land taken into trust after October 17, 1988 (like the Madera Site), gaming is prohibited

by IGRA, unless an exception applies. (25 U.S.C. § 2719(a), (b); see 25 C.F.R. § 292

(2008) [“Gaming on Trust Lands Acquired After October 17, 1988”].)

The exception relied upon by North Fork for the Madera Site provides that land

taken into trust after October 17, 1988, may be used for gaming if “the [Interior]

Secretary, after consultation with the Indian tribe and appropriate State and local

officials, including officials of other nearby Indian tribes, determines that a gaming

establishment on newly acquired lands [1] would be in the best interest of the Indian tribe

and its members, and [2] would not be detrimental to the surrounding community, but

only if the Governor of the State in which the gaming activity is to be conducted concurs

in the [Interior] Secretary’s determination.” (25 U.S.C. § 2719(b)(1)(A), italics added.)

This opinion refers to this determination by the Interior Secretary as the “two-part

determination.” In contrast to the authority granted the Interior Secretary by federal

1 Further detail about the history of federal and state regulation of gaming on Indian

lands is provided in United Auburn, supra, 10 Cal.5th at pages 544 through 547.

4.

statute, the Governor’s authority to concur must come from state law. (United Auburn,

supra, 10 Cal.5th at pp. 548–549, fn. 4.)

To invoke the foregoing exception, at least three conditions must be met: (1) the

Interior Secretary must issue a two-part determination; (2) the Governor of the state

where the trust lands are located must concur in the two-part determination; and (3) there

must be a valid tribal-state compact or valid procedures prescribed by the Interior

Secretary (25 U.S.C. § 2710(d)(1)(C), (d)(7)(B)(vii)). As in Stand Up for California! v.

State of California (2016) 6 Cal.App.5th 686 (Stand Up I), abrogated by United Auburn,

supra, 10 Cal.5th 538 and Stand Up II, the subject of this litigation is the validity of the

Governor’s concurrence. (See Stand Up II, supra, 64 Cal.App.5th at p. 201.)

The Proposed Casino-Resort

In March 2005, North Fork submitted a formal fee-to-trust application to the BIA,

requesting the DOI take into trust for North Fork’s benefit a 305.49-acre parcel in

Madera County (the Madera Site). The Madera Site is adjacent to State Route 99. It is

just north of the City of Madera and is within the city’s sphere of influence. North Fork’s

fee-to-trust application proposed building and operating a large off-reservation casino and

resort on the site. The casino-resort would include class III gaming, restaurant and retail

facilities, public space, a 200-room hotel tower, and approximately 4,500 parking spaces,

including 2,000 spaces in a multi-level parking garage.

“At the time of the fee-to-trust application, the parcel was owned by a subsidiary

of North Fork’s development partner. That entity, Nevada-based Station Casinos, LLC,

is partially owned by Red Rock Resorts, Inc., a publicly traded company.” (Stand Up II,

supra, 64 Cal.App.5th at p. 202.) A quarterly report on Form 10-Q filed by Red Rock

Resorts, Inc. with the Securities and Exchange Commission in 2023 provided the

following information. The company proposes to continue to assist North Fork in

developing the casino-resort and, if a proposed management agreement is approved by

the chair of the National Indian Gaming Commission, to assist North Fork in operating

5.

the project; the project is expected to include approximately 2,000 slot machines, 40 table

games, and several restaurants; and the project’s future development cost are expected to

be between $375 and $425 million.

In September 2011, the DOI issued a “RECORD OF DECISION” announcing the

Interior Secretary’s two-part determination that North Fork’s proposed casino (1) would

“be in the best interest of the Tribe and its members” and (2) “would not be detrimental

to the surrounding community.”

Governor’s Concurrence

On August 30, 2012, the Governor issued a letter to the Interior Secretary

concurring in the two-part determination regarding a class III gaming facility at the

Madera Site. The letter stated: “While I am reluctant to allow the expansion of gaming

on land currently ineligible for it, I concur in your determination in this case because of

several exceptional circumstances.” One of the circumstances was that the Wiyot Tribe

had agreed to forgo gaming on its land, which included environmentally sensitive areas,

in exchange for a direct share of the new facility’s revenues, and the two tribes were

comprised of approximately 2,500 native Californians. Based on these numbers, the

letter stated: “A large tribal population will directly benefit from the gaming facility.”

Addressing the controversial issue of additional off-reservation casinos in California, the

letter stated the Governor expected “there will be few requests from other tribes that will

present the same kind of exceptional circumstances to support a similar expansion of

tribal gaming land.”

Tribal-State Compact

Before the Governor issued the concurrence, he and North Fork negotiated a

tribal-state compact containing the terms and conditions under which class III gaming

would be conducted on the Madera Site. Tribal-state compacts address many topics,

including the scope of the games, standards for operating the games, regulatory

responsibility, allocation of criminal and civil jurisdiction, liquor sales, and taxes on retail

6.

and restaurant outlets. (25 U.S.C. § 2710(d)(3)(C).) The Governor undertook this task

because he is designated by statute as the state officer responsible for negotiating and

executing tribal-state compacts that allow for class III gaming on Indian lands within

California. (Gov. Code, § 12012.25, subd. (d).) The California Constitution also

authorizes the Governor “to negotiate and conclude [tribal-state] compacts, subject to

ratification by the Legislature[.]” (Cal. Const., art. IV, § 19, subd. (f).)

On August 31, 2012, the day after the Governor issued his concurrence letter, he

and North Fork executed the tribal-state compact they had negotiated before the

concurrence was issued. The compact was 111 pages long, excluding its cover page,

table of contents, and appendices. Pursuant to section 4.5(f) of the compact, North Fork’s

obligations to make payments to mitigate the economic impact of the proposed casino-

resort on Picayune-Chukchansi terminated if Picayune-Chukchansi pursued or financed

any administrative or legal challenges to various project approvals. In accordance with

the California Constitution, the Governor forwarded the compact to the Legislature for

ratification. (See Cal. Const., art. IV, § 19, subd. (f).)

Federal Lawsuit Against the DOI

“In November 2012, the Interior Secretary, having made his two-part

determination and obtained the Governor’s concurrence, issued a decision approving

North Fork’s fee-to-trust application for the [Madera Site]. This decision was

implemented in February 2013, when a grant deed conveying the 305 acres to the federal

government in trust was executed by North Fork’s development partner, accepted by the

Interior Secretary, and recorded in the County of Madera.” (Stand Up II, supra, 64

Cal.App.5th at p. 203.)

Picayune-Chukchansi challenged the Interior Secretary’s decisions to take the off-

reservation Madera Site into trust and to allow gaming on that site by filing a complaint

in December 2012 against the United States, the DOI, the Interior Secretary, and an

assistant secretary for Indian affairs. The complaint was filed in the United States

7.

District Court for the District of Columbia and requested declaratory relief and a

permanent injunction prohibiting the Interior Secretary from taking the Madera Site into

trust. In January 2013, the case was consolidated with a lawsuit filed earlier by Stand Up

for California! and five other plaintiffs. (Stand Up for California! v. U.S. Dept. of the

Interior (D.D.C. 2016) 204 F.Supp.3d 212, 226, 234.)

Stand Up for California! State Court Action

In March 2013, Stand Up for California! and Barbara Leach filed a lawsuit against

the Governor in Madera County Superior Court (case No. MCV062850), alleging he

violated the California Constitution when he concurred in the Interior Secretary’s two-

part determination. (Stand Up II, supra, 64 Cal.App.5th at pp. 203–204.) They sought a

writ of mandate setting aside the concurrence. (Id. at p. 204.)2

While the consolidated federal action in the District of Columbia and the first

Madera County Superior Court action were pending, the Legislature passed Assembly

Bill No. 277 (2013-2014 Reg. Sess.), which ratified the tribal-state compact executed on

August 31, 2012. (Stand Up II, supra, 64 Cal.App.5th at p. 204; Gov. Code, § 12012.59.)

On July 3, 2013, the Governor signed the legislation, and it became chapter 51 of the

Statutes of 2013. (Stand Up II, supra, at p. 204.) The ratified compact was forwarded to

the Interior Secretary, who published a notice in the Federal Register stating the compact

had been approved and was taking effect to the extent it was consistent with IGRA. (78

Fed.Reg. 62649 (Oct. 22, 2013).)

2 This state court action was an appropriate vehicle for challenging the validity of

the concurrence (an issue of state law) because similar claims pursued by Stand Up for

California! in federal court were dismissed “for failure to join an indispensable party—

California.” (Stand Up for California! v. U.S. Dept. of the Interior (D.C. Cir. 2018) 879

F.3d 1177, 1181.)

8.

The Referendum and Proposition 48

In July 2013, opponents of the proposed casino initiated the process for presenting

a statewide referendum rejecting the compact ratification statute. (Stand Up II, supra, 64

Cal.App.5th at p. 204.) Enough valid signatures were obtained on their petition to qualify

the referendum for the November 4, 2014 General Election ballot. (Id. at p. 205.) “The

measure was designated Proposition 48 and submitted to the electorate. At the election,

approximately 4.2 million Californians (61 percent) voted ‘No’ on Proposition 48,

thereby rejecting the ratification statute.” (Stand Up II, supra, at p. 205.)

Demurrers in Case No. MCV062850

In August 2013, North Fork was granted leave to intervene in case No.

MCV062850. (Stand Up II, supra, 64 Cal.App.5th at p. 204.) North Fork, the Governor,

and the other state defendants filed demurrers. (Ibid.) In March 2014, before the

referendum rejected the tribal-state compact, the trial court sustained the demurrers

without leave to amend, concluding the Governor’s power to concur arose by implication

from his constitutional authority to negotiate and execute tribal-state compacts. (Ibid.;

see Cal. Const., art. IV, § 19, subd. (f).) After judgment was entered, the plaintiff

appealed. (Stand Up II, supra, at p. 205.) This court assigned the appeal case No.

F069302.

Federal Action Regarding the Compact

After California’s voters rejected the tribal-state compact, the state refused to

negotiate another compact with North Fork. Consequently, in March 2015, North Fork

filed an action in the United States District Court for the Eastern District of California to

compel the state to negotiate a new compact in good faith. (Stand Up for California! v.

U.S. Dept. of the Interior (E.D.Cal. 2018) 328 F.Supp.3d 1051, 1056, affd. in part &

revd. in part (9th Cir. 2020) 959 F.3d 1154.) We refer to this federal lawsuit as the

“Federal Compact Action.” In November 2015, the district court granted North Fork’s

request and ordered North Fork and the state to conclude a compact within 60 days. (Id.

9.

at p. 1057.) In January 2016, after the deadline had passed, the district court appointed a

mediator and directed the mediator to select from the two proposed compacts the one that

best comported with federal law. (Ibid.) The state did not consent to the compact

selected by the mediator and the mediator informed the Interior Secretary of the lack of

consent. (Ibid.)

PROCEEDINGS

In March 2016, Picayune-Chukchansi filed a complaint for declaratory relief

combined with a petition for writ of mandate against the Governor. Picayune-

Chukchansi sought a “judgment declaring that the Governor’s concurrence did not take

effect and is not in effect” and requested a writ of mandate “directing the Governor to

vacate and set aside the concurrence and to take all action as may be necessary to notify

the Secretary that the concurrence did not take effect and is not in effect.” The Madera

County Superior Court assigned the lawsuit case No. MCV072004.

Initial Demurrers

In May 2016, the Governor filed a demurrer. On July 8, 2016, North Fork was

granted leave to intervene. In seeking intervention, North Fork took the position that “[i]f

Picayune were to succeed in obtaining a declaration or writ of mandamus invalidating the

Governor’s concurrence, North Fork’s gaming project would be placed in jeopardy.” The

10.

trial court granted North Fork’s request to intervene. Later that day, North Fork filed a

demurrer to Picayune-Chukchansi’s pleading.3

In October 2016, before the hearing on the demurrers, the Third District issued

United Auburn Indian Community of Auburn Rancheria v. Newsom (2016) 4 Cal.App.5th

35, review granted January 25, 2017, S238544. In that decision, the Third District

rejected the contentions “that the Governor lacked the power to concur under California

law, that the Governor’s concurrence was a legislative act that violated the separation of

powers, and that the Governor exceeded his authority by entering into compact

negotiations for land that hadn’t yet been taken into trust by the Interior Secretary.”

(United Auburn, supra, 10 Cal.5th at p. 548.) As a result, the Third District affirmed the

judgment of dismissal entered after the superior court sustained the Governor’s demurrer.

(Ibid.)

In November 2016, the Madera County Superior Court heard arguments on the

demurrers in this action. On December 2, 2016, the court issued its written ruling to

sustain both demurrers without leave to amend and directed counsel for the Governor to

prepare a judgment of dismissal. That ruling relied on United Auburn Indian Community

of Auburn Rancheria v. Newsom, supra, 4 Cal.App.5th 35.

On December 12, 2016, this court issued Stand Up I, supra, 6 Cal.App.5th 686. In

that action, the plaintiffs’ complaint challenged the Governor’s authority to concur in the

3 Later in July 2016, the Interior Secretary approved a document called Secretarial

Procedures for the North Fork Rancheria of Mono Indians (the secretarial procedures) for

the purpose of authorizing class III gaming on the Madera Site in the absence of a state-

approved compact. (Stand Up II, supra, 64 Cal.App.5th at p. 204.) The 102-page

secretarial procedures (excluding the cover page, table of contents and appendices)

contain detailed provisions governing many topics, including how the gaming will be

conducted. A DOI letter dated July 29, 2016, notified North Fork and the state that the

secretarial procedures were in effect. (Ibid.; Stand Up for California! v. U.S. Dept. of the

Interior, supra, 328 F.Supp.3d at p. 1057.) The secretarial procedures take the place of

the tribal-state compact rejected by California’s voters.

11.

Interior Secretary’s two-part determination. North Fork, the Governor, and other state

defendants filed demurrers. The Madera County Superior Court sustained the demurrers

without leave to amend. (Id. at p. 691.) In reviewing that decision, we determined “[t]he

Governor’s concurrence is invalid under the facts alleged in this case.” (Id. at p. 705.)

We reversed the judgment and directed the trial court to enter a new order overruling the

demurrers. (Ibid.)

In February 2017, the parties stipulated to the trial court vacating its December 2,

2016 order sustaining the demurrers in this case and setting a conference in May 2017 to

update the court on whether the California Supreme Court had granted review of Stand

Up I and the status of the California Supreme Court’s proceedings in United Auburn. In

effect, the trial court stayed proceedings in the present case pending resolution of the

appellate proceedings in the other cases. That stay remained in place until September

2021.

Proceeding in Other Cases During the Stay

In March 2017, the Supreme Court granted review of Stand Up I and deferred

briefing pending its decision in United Auburn.

Three and a half years after the stipulated order was filed, the California Supreme

Court decided United Auburn, supra, 10 Cal.5th 538. The court concluded California

law empowered the Governor to concur in the Interior Secretary’s two-part

determination. (Id. at p. 543.) As a result, it affirmed the order sustaining the Governor’s

demurrer and subsequent judgment of dismissal. (Id. at pp. 544, 548.)

In October 2020, the California Supreme Court transferred Stand Up I to this court

with instructions to vacate our decision and reconsider the matter in light of United

Auburn, supra, 10 Cal.5th 538. In May 2021, after the parties submitted their briefs and

this court denied Picayune-Chukchansi’s application to file an amicus curiae brief, we

issued Stand Up II, supra, 64 Cal.App.5th 197, which concluded:

12.

“[T]he facts of this case are distinguishable from those in United Auburn

because at the November 2014 general election California voters rejected

the Legislature’s ratification of the tribal-state compact for gaming at the

Madera site. As described below, we conclude the people retained the

power to annul a concurrence by the Governor and the voters exercised this

retained power at the 2014 election by impliedly revoking the concurrence

for the Madera site. As a result, the concurrence is no longer valid, and the

demurrer[s] should have been overruled.” (Stand Up II, supra, 64

Cal.App.5th at p. 201.)4

The Governor and North Fork filed separate petitions for review with the

California Supreme Court.

Further Proceedings in This Action

In September 2021, the Supreme Court denied the petitions for review of Stand Up

II. With that uncertainty removed, the parties in this action filed competing motions for

judgment on the pleadings. In July 2022, the trial court issued a tentative ruling on the

motions for judgment on the pleadings, but did not adopt that ruling to give Picayune-

Chukchansi an opportunity to file a formal motion for leave to amend. In October 2022,

Picayune-Chukchansi filed its motion for leave to amend.

In December 2022, after hearing arguments on the motion for leave to amend, the

trial court (1) granted Picayune-Chukchansi’s leave to file a first amended complaint for

declaratory relief; (2) denied it leave to amend its petition for writ of mandate (3)

adopted its tentative ruling on the competing motions for judgment on the pleadings,

which granted the Governor’s and North Fork’s motions for judgment on the pleading

solely as to Picayune-Chukchansi’s petition for writ of mandate without leave to amend.

The trial court concluded mootness did not justify denying leave to amend the

complaint. The court denied leave to amend the petition for writ of mandate because

4 Use of the present tense verb “is” in the phrase “is no longer valid” described the

concurrence’s state of being at the time of the opinion. Thus, that phrase did not include

an explicit determination that the concurrence was or was not void from its inception

(i.e., void ab initio).

13.

Picayune-Chukchansi was unable to allege the Governor had a clear and present

ministerial duty enforceable through such a writ. In particular, the trial court concluded

the Governor was not mandated to take the corrective action of notifying the Interior

Secretary that his August 2012 concurrence had been annulled by Proposition 48.

Picayune-Chukchansi filed a first amended complaint seeking (1) a judicial

declaration that the vote on Proposition 48 annulled the Governor’s August 2012

concurrence, rendering it void ab initio such that it never took effect and was not in

effect; (2) a judicial declaration that North Fork could not conduct class III gaming on the

Madera Site by relying on the void concurrence; and (3) injunctive relief precluding the

Governor and North Fork from taking any action predicated on the Governor’s

concurrence ever having had legal effectiveness.

The Governor and North Fork filed separate demurrers. In July 2023, the trial

court filed a tentative ruling that proposed sustaining the Governor’s demurrer without

leave to amend and overruling North Fork’s demurrer. The court concluded an

actionable dispute did not exist between Picayune-Chukchansi and the Governor and

North Fork’s demurrer attacked the prayer for relief rather than showing a cause of action

had not been stated. The order sustaining the Governor’s demurrer is challenged in case

No. F086849.

Motions for Summary Judgment

In September 2023, North Fork filed a motion for summary judgment. Picayune-

Chukchansi filed its own motion for summary judgment. After oppositions and replies

were filed, the trial court held a hearing in May 2024. Three days before the hearing, the

court filed an 18-page tentative ruling granting Picayune-Chukchansi’s motion and

denying North Fork’s motion. Following the hearing, the court adopted its tentative

ruling.

14.

Judgment and Appeal

On June 26, 2024, the trial court filed a “JUDGMENT IN FAVOR OF

PICAYUNE AND AGAINST NORTH FORK.” The judgment stated: “Through the

People’s vote on Proposition 48, the Governor’s concurrence has been annulled rendering

it void ab initio, and as such the Governor’s concurrence never took effect and is not in

effect.” The judgment attached a copy of the court’s tentative ruling that had been

adopted as the court’s order on the summary judgment motions. North Fork filed this

appeal.

DISCUSSION

North Fork contends the declaratory relief granted in the judgment must be

reversed because it is an improper advisory opinion. North Fork presents two arguments

to support its claim that the judgment is merely an advisory opinion. First, North Fork

contends that, even if the concurrence’s state-law status was relevant to North Fork’s

ability to operate a casino on the Madera Site, the issue is moot. Second, as a matter of

federal law, North Fork contends the state-law status of the Governor’s concurrence has

no bearing on its authority to operate the casino. North Fork’s third argument asserts the

declaratory judgment is wrong on the merits because, as a matter of substantive law, the

Governor’s concurrence was not void ab initio. We disagree.

I. MOOTNESS

A. Basic Principles

California courts have a duty to decide actual controversies by a judgment that can

be carried into effect. (In re D.P. (2023) 14 Cal.5th 266, 276.) Restated in the negative,

courts have a duty not to give opinions upon moot questions or abstract propositions, or

to declare principles or rules of law that cannot affect the matter in issue in the case

before it. A case becomes moot when events render it impossible for the court, if it

should decide the case in favor of plaintiff, to grant him any effective relief. “For relief

15.

to be ‘effective,’ two requirements must be met. First, the plaintiff must complain of an

ongoing harm. Second, the harm must be redressable or capable of being rectified by the

outcome the plaintiff seeks.” (Ibid.) Other courts have defined “[t]he legal test for

effective relief [a]s whether there is a ‘prospect of a remedy that can have a practical,

tangible impact on the parties’ conduct or legal status.’ ” (Delta Stewardship Council

Cases (2020) 48 Cal.App.5th 1014, 1053; In re I.A. (2011) 201 Cal.App.4th 1484, 1490.)

B. Effective Relief

North Fork contends the trial court’s declaratory judgment cannot have any effect.

In particular, North Fork asserts the Interior Secretary’s 2012 decision to take the Madera

Site into trust and the 2016 decision to issue secretarial procedures have been challenged

in federal court, Picayune-Chukchansi lost those challenges, the judgments are now final,

and the relevant statute of limitations has expired. Under North Fork’s interpretation of

federal law, Picayune-Chukchansi has “no avenue to challenge the [Interior] Secretary’s

decisions underpinning North Fork’s ability to game.”

Picayune-Chukchansi asserts “it is not challenging any of the [Interior] Secretary’s

past decisions” and North Fork’s argument that the validity of the Governor’s

concurrence has no bearing on its ability to offer gaming at the Madera Site is a merits

issue, not a mootness issue. Picayune-Chukchansi contends “North Fork cannot rest its

mootness argument on an assumption that its view of that merits question is correct.”

Chafin v. Chafin (2013) 568 U.S. 165 (Chafin) involved a custody battle over the

couple’s daughter that arose after the mother was deported to Scotland and the daughter

remained with her father in Alabama. (Id. at p. 170.) The mother filed a petition in

federal district court under the Hague Convention of the Civil Aspects of International

Child Abduction (Convention) and the implementing federal statute seeking an order for

the daughter’s return to Scotland. (Ibid.) The district court granted the petition for

return, the mother left with the child for Scotland, and, once there, initiated custody

16.

proceedings in which the Scottish court granted her interim custody and a preliminary

injunction prohibiting the father from removing the child from Scotland. (Id. at p. 171.)

The father appealed the district court’s order to the Eleventh Circuit, which dismissed the

appeal as moot. (Ibid.) The United States Supreme Court vacated the dismissal and

remanded for further proceedings.

The mother in Chafin argued the case was moot because the district court lacked

the authority to issue a re-return order either under the Convention or the court’s inherent

equitable powers. The United States Supreme Court reject her approach, stating “that

argument—which goes to the meaning of the Convention and the legal availability of a

certain kind of relief—confuses mootness with the merits.” (Chafin, supra, 586 U.S. at p.

174.) In the court’s view, the father’s claim “for re-return—under the Convention itself

or according to general equitable principles—cannot be dismissed as so implausible that

it is insufficient to preserve jurisdiction [citation], and his prospects of success are

therefore not pertinent to the mootness inquiry.” (Ibid.)

Here, we conclude North Fork’s arguments about mootness suffer from the same

defect as those asserted by the mother in Chafin. Those arguments ask for a merits

question to be resolved as the basis for concluding this case is moot. What effect, if any,

California voter’s annulment of the concurrence will have on North Fork’s ability to

operate a casino on the Madera Site presents questions of federal law for which there is

no direct precedent. We cannot answer those questions with the level of certainty needed

to conclude there is no “ ‘prospect of a remedy that can have a practical, tangible impact

on the parties’ conduct or legal status.’ ” (Delta Stewardship Council Cases, supra, 48

Cal.App.5th at p. 1053.) Cases addressing the validity of a state legislature’s ratification

of the 19th Amendment or the retrocession of jurisdiction to the federal government by a

state under section 1323 of title 25 of the United States Code do not establish that the

voidness of the Governor’s concurrence from its inception will have no impact on how

IGRA and related federal regulations are applied to North Fork’s project going forward.

17.

(See Leser v. Garnett (1922) 258 U.S. 130; United States v. Lawrence (9th Cir. 1979) 595

F.2d 1149, 1151; Omaha Tribe of Nebraska v. Village of Walthill (D.Neb. 1971) 334

F.Supp. 823, affd. (8th Cir. 1972) 460 F.2d 1327, cert. denied (1973) 409 U.S. 1107

(1973).) Consequently, we cannot conclude the controversy regarding the Governor’s

concurrence is moot.

II. THE GOVERNOR’S CONCURRENCE WAS VOID AB INITIO

We next consider the merits and whether the trial court erred in concluding the

people’s vote on Proposition 48 annulled the Governor’s concurrence and rendered it

void ab initio—that is, as though it never took effect and is not in effect.5

A. Background

The question whether the Governor’s concurrence was void ab initio was not

decided by the California Supreme Court in United Auburn, supra, 10 Cal.5th 538, or by

this court in Stand Up II, supra, 64 Cal.App.5th 197. However, context for that issue is

provided by the series of legal questions this court identified and resolved in Stand Up II.

That series of questions addressed the authority of the people to eliminate or invalidate

the Governor’s concurrence in the two-part determination of the Interior Secretary. (See

Stand Up II, supra, 64 Cal.App.5th at pp. 210–216 [pt. II.B., “The People’s Authority To

Invalidate a Concurrence”].) The opinion’s introduction summarized our conclusions as

follows:

5 Black’s Law Dictionary (12th ed. 2024) defines “void ab initio” as “[n]ull from

the beginning, as from the first moment of a contract is entered into. A contract is void

ab initio if it seriously offends law or public policy, in contrast to a contract that is merely

voidable at the election of one party to the contract.” An example of this concept’s

application is provided by the federal decisions that hold acts done in violation of the

automatic bankruptcy stay are void ab initio and have no legal effect. (See Desjardins,

Tribal Sovereignty & Sovereign Immunity in Bankruptcy (2024) 101 Wash. U.L. Rev.

1735, 1740; see also, Styne v. Stevens (2001) 26 Cal.4th 42, 46 [“any contract of an

unlicensed person for talent agency services is illegal and void ab initio”].)

18.

“As described below, we conclude the people retained the power to annul a

concurrence by the Governor and the voters exercised this retained power at

the 2014 election by impliedly revoking the concurrence for the Madera

site. As a result, the concurrence is no longer valid, and the demurrer[s]

should have been overruled.” (Stand Up II, supra, 64 Cal.App.5th at p.

201.)

The first question we addressed was “whether the Governor’s concurrence, once

given, can be invalidated by subsequent action of the electorate.” (Stand Up II, supra, 64

Cal.App.5th at p. 210.) We concluded “the people of California retained the authority to

annul a concurrence in the Interior Secretary’s two-part determination after it has been

issued by the Governor. In other words, the Governor’s exercise of the defeasible

concurrence power is itself an act capable of being avoided or undone by the people.”

(Id. at p. 212.)

The second question we addressed was procedural in nature—that is, how the

authority to annul a concurrence could be exercised. (Stand Up II, supra, 64 Cal.App.5th

at p. 212.) We concluded “a referendum is an appropriate mechanism for annulling a

Governor’s concurrence in the Interior Secretary’s two-part determination.” (Id. at p.

214.)

The third question we addressed was “whether the people may impliedly annul the

Governor’s concurrence.” (Stand Up II, supra, 64 Cal.App.5th at p. 214.) We concluded

that, in voting on a referendum, “the people may impliedly express their will to annul a

concurrence issued by the Governor.” (Ibid.)

The fourth question addressed whether the people actually had exercised their

retained power. We phrased the question as “whether Proposition 48 is properly

interpreted as an exercise of the people’s authority to annul the Governor’s August 30,

2012 concurrence.” (Stand Up II, supra, 64 Cal.App.5th at p. 215.) We concluded “the

people’s rejection of Proposition 48 impliedly expressed their will to annul the

Governor’s August 30, 2012 concurrence for the Madera site.” (Stand Up II, supra, at p.

216.) The rationale for this conclusion was voter intent and the extreme improbability

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that the voters, by rejecting the tribal-state compact negotiated by the Governor and

ratified by the Legislature, were expressing their preference for gaming to be conducted

on the Madera Site pursuant to subsequently created secretarial procedures imposed by

the federal government pursuant to IGRA. (Stand Up II, supra, at p. 216.)

The foregoing questions and answers lead to the question about timing and the

impact of the annulment of the Governor’s concurrence presented in this appeal—

specifically, was the concurrence void from its inception or was the concurrence in effect

until the people rejected Proposition 48. North Fork phrases the issue as whether

Proposition 48 retroactively annulled the concurrence. North Fork presents several

arguments for concluding the concurrence was not void ab initio as a matter of

substantive law.

B. Prior Decisions

First, North Fork argues that holding the concurrence void ab initio is directly

contrary to Stand Up II and United Auburn. North Fork’s interpretation of Stand Up II

refers to statements that (1) a question presented was “whether the Governor’s

concurrence, once given, can be invalidated by subsequent action of the electorate”

(Stand Up II, supra, 64 Cal.App.5th at p. 210, italics added) and (2) the people exercised

a retained power “by impliedly revoking the concurrence for the Madera site [and, a]s a

result, the concurrence is no longer valid” (id. at p. 201.) North Fork also refers to the

statement in United Auburn that “the Governor acted lawfully when he concurred in the

Interior Secretary’s determination.” (United Auburn, supra, 10 Cal.5th at pp. 543–544.)

Based on this language, North Fork argues the concurrence was valid and in effect when

given in 2012 and remained so until revoked in the November 2014 election. In

comparison, Picayune-Chukchansi argues the language and logic of Stand Up II point to

one possible interpretation of the decision—the Governor’s concurrence was void ab

initio.

20.

The scope of the “[l]anguage used in any opinion is of course to be understood in

the light of the facts and the issue then before the court, and an opinion is not authority

for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524,

fn. 2; Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1252 [cases are not authority for

propositions not considered]; see 9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 530,

pp. 563–564 [ratio decidendi and dicta].) Applying these principles, we conclude neither

United Auburn nor Stand Up II expressly or impliedly resolved whether the concurrence

was void ab initio. The conclusion in United Auburn that the Governor had the implied

power to concur in the two-part determination does not necessarily lead to the conclusion

that the people lacked the power to render a concurrence void ab initio. Similarly, our

conclusion in Stand Up II that the people impliedly revoked the Governor’s concurrence

does not resolve, one way or the other, the more specific question of whether the

concurrence was rendered invalid from its inception or invalid from the date of the vote

on Proposition 48.

In sum, although United Auburn and Stand Up II provide context for the specific

legal question presented in this appeal, neither decision expressly nor impliedly answered

that question.

C. Presumption Against Retroactive Statutes

Second, North Fork contends basic principles of California law include a strong

presumption against retroactivity. North Fork relies on decisions of the California

Supreme Court recognizing “that statutes ordinarily are interpreted as operating

prospectively in the absence of a clear indication of a contrary legislative intent.”

(Quarry v. Doe I (2012) 53 Cal.4th 945, 955.) In accordance with this principle, a statute

that is ambiguous with respect to retroactive application is construed to be

unambiguously prospective. (Ibid.; Californians for Disability Rights v. Mervyn’s, LLC

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(2006) 39 Cal.4th 223, 230 [“presumption that statutes operate prospectively absent a

clear indication the voters or the Legislature intended otherwise”].)

Picayune-Chukchansi contends the subject of retroactivity was addressed in Stand

Up II and this court rejected North Fork’s argument regarding “the troublesome

retroactivity question” in the opinion’s subpart labeled “Retroactive Annulment.” (See

Stand Up II, supra, 64 Cal.App.5th at p. 210.) We reject this overly broad interpretation

of Stand Up II. We simply decided whether “the people could, or could not, revoke a

concurrence given by the Governor.” (Id. at p. 211.) The issue decided was limited to

whether the electorate’s authority over the Governor’s implied power to concur had to be

exercised before the Governor exercised that power and issued a concurrence or,

alternatively, whether the electorate’s power could be exercised after the Governor

exercised that power. We concluded “the people of California retained the authority to

annul a concurrence … after it has been issued by the Governor.” (Id. at p. 212, italics

added.) We did not reach the question whether the revoked concurrence was void ab

initio.

Whether the general principles governing the retroactivity of a statute, including

the presumption that statutes operate prospectively, should be applied to the electorate’s

implied exercise of its retained power to invalidate a Governor’s concurrence is a

question that does not appear to have been addressed in a published California decision.

We are not convinced the nature of the electorate’s invalidation should be determined

using those general principles. Typically, a statute enacted by the Legislature or the

people will govern future conduct arising in a variety of situations and, if retroactive, will

be applied to past conduct. This application to a wide range of situations will not occur

in this case. For example, Proposition 48 did not have a wide range of application like

the Proposition 64’s stricter standing requirement that applied to existing and future

actions brought under California’s unfair competition law. (See Californians for

Disability Rights v. Mervyn’s, LLC, supra, 39 Cal.4th at p. 232.) Rather, Proposition 48

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addressed two discrete acts already taken when it (1) expressly rejected the ratification

statute, chapter 51 of the Statutes of 2013, and (2) impliedly revoked the concurrence

relating to the Madera Site. In this narrow set of circumstances, we conclude a case-by-

case analysis is more appropriate than an application of general principles regarding the

retroactive application of a statute.

D. Federal Preemption

North Fork also argues the declaratory judgment cannot be upheld because of “the

bedrock principles of federalism and federal preemption limiting the authority of states—

or voters in state referenda—to interfere with matters reserved exclusively for the federal

government.” Invoking the supremacy clause,6 North Fork contends that any state law

that interferes with or is contrary to federal law, no matter how clearly within a state’s

acknowledged power, must yield. (Felder v. Casey (1988) 487 U.S. 131, 138

[Wisconsin’s notice-of-claim statute did not apply to civil rights actions under 42 U.S.C.

§ 1983 brought in state court because the statute was preempted as inconsistent with

federal law].)

“Preemption is foremost a question of congressional intent: did Congress,

expressly or implicitly, seek to displace state law?” (Quesada v. Herb Thyme Farms, Inc.

(2015) 62 Cal.4th 298, 308.) “Congress may expressly preempt state law through an

explicit preemption clause, or courts may imply preemption under the field, conflict, or

obstacle preemption doctrines.” (Ibid.) Here, Congress has expressly required “the

Governor of the State in which the gaming activity is to be conducted” to concur in the

Interior Secretary’s two-part determination. (25 U.S.C. § 2719(b)(1)(A).) Congress,

6 The laws of the United States “shall be the supreme Law of the Land,”

notwithstanding anything to the contrary in the Constitution or laws of any state. (U.S.

Const., art. VI, cl. 2.) Under the supremacy clause, Congress has the power to preempt

state law. (Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 372–374,

120 S.Ct. 2288, 147 L.Ed.2d 352.)

23.

however, has not granted governors “the authority to concur—that authority must come

from state law.” (Stand Up II, supra, 64 Cal.App.5th at p. 202, citing United Auburn,

supra, 10 Cal.5th at pp. 548-549, fn. 4.) Consequently, Congress did not expressly

preempt state law defining a governor’s concurrence authority. Rather, Congress relied

on state law to resolve whether a governor had the authority to concur and the terms and

conditions for the valid exercise of any such authority. Given this reliance on state law, it

necessarily follows that Congress did not impliedly preempt the state law that answers

those questions about a governor’s concurrence authority.

E. Void Ab Initio

Having addressed North Fork’s preliminary arguments, we consider the

substantive question whether the Governor’s concurrence was void ab initio and divide it

into two separate issues. The first is general in nature and asks whether the people’s

retained authority to annul a concurrence includes the authority to render the concurrence

void ab initio. If the retained authority is that extensive, the second question is reached.

It asks whether, in this particular case, the people’s implied annulment of the Governor’s

August 30, 2012 concurrence should be construed as rendering it void ab initio.

Whether the people’s retained power to annul a concurrence includes the power to

render it void ab initio is a question of California constitutional law. Section 1 of article

II of the California Constitution describes the people’s power: “All political power is

inherent in the people. Government is instituted for their protection, security, and

benefit, and they have the right to alter or reform it when the public good may require.”

In this context, “political power” means “all governmental power.” (Dye v. Council of

City of Compton (1947) 80 Cal.App.2d 486, 490.) The word “all” means “ ‘the whole of’

or ‘the greatest quantity’ … and ‘every member or individual component thereof.’ ”

(City of Ukiah v. Board of Trustees (1961) 195 Cal.App.2d 344, 347.) In comparison to

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the people’s retained power, the Governor’s authority to concur was implied, existing in a

“ ‘zone of twilight.’ ” (United Auburn, supra, 10 Cal.5th at p. 563.)

We conclude the proper balance between the Governor’s implied authority to

concur and the people’s retained power to annul should be struck in favor of the people

because, as a matter of California constitutional law, the Governor’s authority is derived

from the people. (Stand Up II, supra, 64 Cal.App.5th at p. 211.) Simply put, whether

something is void ab initio is a question of public policy and the power to resolve that

political question must exist somewhere. In our view of the California Constitution and

existing legislation, the political or governmental power to declare a concurrence void

was not fully transferred from the people. Thus, we conclude the retained power to annul

includes the power to render the concurrence void ab initio.

Next, we consider whether the people’s implied annulment of the Governor’s

August 30, 2012 concurrence through Proposition 48 should be construed as an exercise

of their authority to render the concurrence void ab initio. In Stand Up II, supra, 64

Cal.App.5th 197, we concluded the people’s vote on Proposition 48 impliedly annulled

the Governor’s concurrence but did not resolve the extent of that annulment. (Stand Up

II, supra, at pp. 215–216.) The method of analysis used to determine whether an

annulment occurred focused on voter intent. Applying that method here, we consider

what voter intent is most logically inferred from the rejection of Proposition 48. That

analysis considers the consequences of each proposed interpretation and which set of

consequences most realistically aligns with the voter’s intent.

The competing interpretations would render the concurrence (1) ineffective from

its inception on August 30, 2012, or (2) ineffective from November 4, 2014, when the

voters rejected Proposition 48. Under the latter interpretation, the concurrence would

have been effective from August 30, 2012, through the date of the election, a span of

about two years and two months. We conclude the most reasonable interpretation is that

the voters intended to render the concurrence without any effect because there is little, if

25.

any, support for the inference that voters wanted the concurrence to remain effective

during the period leading up to the election. In other words, the voter’s intent to reject

class III gaming on the Madera Site strongly favors treating the concurrence as void ab

initio rather than in effect until the election.

Consequently, we conclude the voter’s rejection of Proposition 48 included an

implied annulment of the Governor’s concurrence that rendered the concurrence void ab

initio.

DISPOSITION

The judgment is affirmed. Respondent Picayune shall recover its costs on appeal.

DETJEN, Acting P. J.

WE CONCUR:

PEÑA, J.

SNAUFFER, J.

26.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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