Petition for Writ of Certiorari — Club One Casino, Inc., dba Club One Casino, et al., Petitioners v. Deb Haaland, Secretary of the Interior, et al.

Supreme Court briefDec 18, 2020

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App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLUB ONE CASINO, INC., DBA

Club One Casino; GLCR,

INC., DBA The Deuce Lounge

and Casino,

Plaintiffs-Appellants,

No. 18-16696

D.C. No.

1:16-cv-01908AWI-EPG

OPINION

DAVID BERNHARDT; MIKE

BLACK, Acting Assistant

Secretary of the Interior Indian Affairs; U.S. DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted February 11, 2020

San Francisco, California

Filed May 27, 2020

Before: R. Guy Cole, Jr.* Ronald M. Gould,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia

* The Honorable R. Guy Cole, Jr., Chief Judge of the United

States Court of Appeals for the Sixth Circuit, sitting by designation.

App. 2

SUMMARY**

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Tribal Gaming

The panel affirmed the district court’s summary

judgment in favor of the U.S. Department of the Interior and its Secretary in an action brought by plaintiff

cardrooms, challenging the Secretary’s approval of a

Nevada-style casino project on off-reservation land in

the County of Madera, California by the North Fork

Rancheria of Mono Indians, a federally recognized

tribe.

Section 3719 of Indian Gaming Regulatory Act

(“IGRA”) prohibits gaming on any lands acquired by

the Secretary in trust for the benefits of Indian Tribes

after October 17, 1988, unless one of several exceptions

applies. As relevant here, Class III games include casino-style games, slot machines, and lotteries, and can

only be conducted pursuant to tribal-state compacts

approved by the Secretary. Section 5108 of the Indian

Reorganization Act of 1934 (“IRA”) authorized the Secretary to acquire interests or rights for the purpose of

providing land for Indians. In July 2016, in accordance

with IGRA, the Secretary prescribed certain procedures that permitted gaming on the Madera Parcel

(the “Secretarial Procedures”).

** This summary constitutes no part of the opinion of the

court. It has been prepared by court staff for the convenience of

the reader.

App. 3

The panel rejected plaintiffs’ contention that the

Secretarial Procedures were issued in violation of

IGRA. The panel held that as a matter of law, the federal government confers tribal jurisdiction over lands

it acquires in trust for the benefit of tribes. The panel

further held that the Tribe’s jurisdiction over the

Madera Parcel operated as a matter of law and the

Tribe clearly exercised governmental power when it

entered into agreements with local governments and

enacted ordinances concerning the property. Finally,

the panel rejected plaintiffs’ claim that the Tribe’s acquisition of any jurisdiction over the Madera Parcel required the State’s consent or cession. Specifically, the

panel held that the Enclave Clause of the U.S. Constitution did not apply because the Secretary’s acquisition of land in trust for the benefit of a tribe did not

result in the creation of a federal enclave or violate the

Clause. The panel also held that 40 U.S.C. § 3112 did

not apply where the jurisdiction at issue here—which

was created by operation of law—was not granted by

the State to the federal government, or taken by the

federal government from the State.

The panel rejected plaintiffs’ contention that to

the extent IRA created tribal jurisdiction upon the Secretary’s acquisition of land in trust for the benefit of

the Tribe, it violated the Tenth Amendment. The panel

held that the IRA did not offend the Tenth Amendment

because Congress has plenary authority to regulate Indian affairs.

The panel held that plaintiffs waived two arguments raised for the first time on appeal.

App. 4

The panel concluded that the Secretary’s actions

were not arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.

COUNSEL

Robert D. Links (argued), Adam G. Slote, and Marglyn

E. Paseka, Slote Links & Boreman LLP, San Francisco,

California; Robert A. Olson and Timothy T. Coates,

Greines Martin Stein & Richland LLP, Los Angeles,

California; for Plaintiffs-Appellants.

Tamara Rountree (argued), John David Gunter II, Steven Miskinis, and Joann Kintz, Attorneys; Eric Grant,

Deputy Assistant Attorney General; Jeffrey Bossert

Clark, Assistant Attorney General; Environment and

Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

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OPINION

MURGUIA, Circuit Judge.

This action is one in a series of actions1 concerning

the proposed construction and operation of a Nevadastyle casino on off-reservation land in the County of

Madera, California (the “Madera Parcel”) by the North

See Picayune Rancheria of Chukchansi Indians v. United

States Dep’t of Interior, No. 1:16-CV-0950-AWI-EPG, 2017 WL

3581735, at *3–5 (E.D. Cal. Aug. 18, 2017) (reviewing actions related to the proposed casino).

App. 5

Fork Rancheria of Mono Indians (the “North Fork” or

“Tribe”), a federally recognized tribe. Plaintiffs-Appellants, Club One Casino and the Deuce Lounge, are

cardrooms licensed by the State of California (the

“State”). Plaintiffs contend that the approval of the

casino project by the United States Secretary of the

Interior (the “Secretary”) and the United States Department of the Interior (collectively, Defendants-Appellees) is unlawful, and they brought a host of

procedural, statutory, and constitutional challenges.

The district court granted summary judgment against

Plaintiffs on all claims. We affirm.

The North Fork Rancheria of Mono Indians of California are the modern descendants of the Mono Indians, who have used and occupied lands in and near

California’s San Joaquin Valley for several centuries.

The Tribe has approximately 1,750 citizens, is headquartered in North Fork, Madera County, California,

and has been federally recognized since 1915.

In March 2005, the North Fork applied to the Department of the Interior to have a 305-acre plot of land

in Madera County taken into trust by the United

States pursuant to section 5108 of the Indian Reorganization Act (“IRA”), 25 U.S.C. §§ 5101-5144. The Tribe

proposes to construct a casino resort on the property.

In September 2011, the Secretary made a determination pursuant to section 2719 of the Indian Gaming

Regulatory Act (“IGRA”), id. §§ 2701-2721, finding that

App. 6

gaming on the land would be in the best interest of the

North Fork and not detrimental to the surrounding

community (the “Secretarial Determination”). In August 2012, the Governor of the State of California (the

“Governor”) informed the Secretary that he concurred

in the Secretarial Determination and negotiated a

compact with the North Fork to govern gaming at the

Madera Parcel. In February 2013, the Madera Parcel

was acquired in trust by the Secretary for the benefit

of the North Fork. In June 2013, the California Legislature passed Assembly Bill 277, which ratified the

compact, and the Governor signed the legislation into

law the following month. Enough signatures, however,

were gathered to place a veto referendum (“Proposition

48”) on the November 2014 ballot, which proposed

voiding the California Legislature’s ratification of the

compact. Proposition 48 passed with sixty-one percent

of the vote—meaning that Assembly Bill 277, which

had ratified the compact between the Tribe and the

State, was vetoed by the voters.

After this defeat at the polls, the North Fork requested that the State negotiate a new tribal-state

compact to govern gaming at the Madera Parcel. The

State refused, citing Proposition 48’s passage. In

March 2015, the Tribe brought an action under IGRA,

alleging that the State failed to negotiate in good faith.

N. Fork Rancheria of Mono Indians of Cal. v. California, No. 1:15-CV-00419-AWI-SAB, 2015 WL 11438206,

at *1 (E.D. Cal. Nov. 13, 2015). The district court

agreed, finding that the State’s refusal to negotiate a

compact post-referendum violated IGRA, and ordered

App. 7

the State and the North Fork to conclude a compact

within sixty days. Id. at *8, *12. When the parties

failed to do so, the court selected a mediator and directed the parties to submit their last best offers. The

parties complied with the order and the mediator selected the North Fork’s proposed compact as “the compact that best comported with IGRA, Federal law, and

the orders of this Court.” The mediator thereafter submitted the compact to the State for its consent. The

State did not consent to the selected compact within

the statutorily required time period and the mediator’s

proposed compact was submitted to the Secretary pursuant to section 2710(d)(7)(B)(vii) of IGRA.

In July 2016, in accordance with IGRA, the Secretary prescribed certain procedures that permitted

gaming on the Madera Parcel (the “Secretarial Procedures”). The Secretarial Procedures do not include express findings as to whether the North Fork had

jurisdiction or exercised governmental power over the

Madera Parcel or whether the Madera Parcel was Indian land.

Plaintiffs, the cardrooms, sued the Secretary and

the Department of the Interior in the district court in

December 2016. They challenged the Secretary’s issuance of the Secretarial Procedures under the Administrative Procedure Act, claiming: (1) the Secretarial

Procedures were issued in violation of IGRA, as the

Tribe purportedly never acquired jurisdiction or exercised governmental power over the Madera Parcel; and

(2) assuming the Tribe acquired jurisdiction and exercised governmental power, IRA violates the Tenth

App. 8

Amendment to the Constitution by reducing the

State’s jurisdiction over land within its territory without its agreement.

On cross-motions for summary judgment, the district court denied Plaintiffs’ motion and granted Defendants’ motion. In accordance with case law from

other circuits, the district court held that: (1) the Tribe

had jurisdiction over the Madera Parcel for purposes

of IGRA by virtue of the land being acquired in trust

for the Tribe and neither consent nor cession by the

State was required; (2) Plaintiffs’ Tenth Amendment

challenge was not properly before the court, as Plaintiffs had only challenged the issuance of the Secretarial Procedures, not the Secretary’s acquisition of the

Madera Parcel in trust for the benefit of the Tribe; and

(3) alternatively, Plaintiffs lacked standing to bring the

Tenth Amendment challenge. Plaintiffs timely appealed.

We review the district court’s grant of summary

judgment de novo to determine whether the Secretary’s actions were “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A); Alaska Oil & Gas Ass’n v. Jewell,

815 F.3d 544, 554 (9th Cir. 2016). We have described

the arbitrary and capricious standard as deferential

and narrow, establishing a “high threshold” for setting

aside agency action. River Runners for Wilderness v.

Martin, 593 F.3d 1064, 1067, 1070 (9th Cir. 2010) (per

App. 9

curiam). We also review purely legal questions de novo.

Wagner v. Nat’l Transp. Safety Bd., 86 F.3d 928, 930

(9th Cir. 1996).

III

Before proceeding to our analysis, we pause to set

out the applicable statutory landscape. Gaming in Indian country is a multi-billion-dollar industry conducted pursuant to the Indian Gaming Regulatory Act

of 1988. IGRA “accommodate[s] the interests of tribes

in pursuing gaming but also set[s] forth a federal regulatory regime, and g[ives] a powerful role to states by

providing for significant state involvement in the decision to permit casino-style gaming.” Cohen’s Handbook

of Federal Indian Law § 12.01, at 876 (2012) (“Federal

Indian Law”).

Gaming is permitted only on Indian lands, which

are defined as “all lands within the limits of any Indian

reservation,” 25 U.S.C. § 2703(4)(A), and “any lands title to which is either held in trust by the United States

for the benefit of any Indian tribe or individual or held

by any Indian tribe or individual subject to restriction

by the United States against alienation and over which

an Indian tribe exercises governmental power,” id.

§ 2703(4)(B). Thus, a tribe may engage in gaming activities either: (1) on a reservation; or (2) off a reservation on tribal or individual trust land, or land not held

in trust but subject to a restriction on alienation, but

only if a tribe exercises governmental power over this

trust or restricted land. Id. § 2703(4).

App. 10

Importantly, section 2719 of IGRA prohibits gaming on any lands acquired by the Secretary in trust for

the benefit of Indian tribes after October 17, 1988, unless one of several exceptions applies. An exception

pertinent to this appeal permits gaming if the Secretary makes a two-part determination: (1) finding that

gaming on land acquired in trust after 1988 “would be

in the best interest of the Indian tribe and its members”; and (2) that such gaming “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 Secretary’s determination.” Id. § 2719(b)(1)(A).

Additionally, IGRA divides gaming into three classes. As relevant here, Class III2 games include casinostyle games, slot machines, and lotteries. See id.

§ 2703(8). Generally, Class III games can only be conducted pursuant to tribal-state compacts approved by

the Secretary. Id. § 2710(d)(1)(C), (3)(B). If a state generally permits such gaming, IGRA authorizes a tribe to

bring an action in federal court3 against a state that

Class I games include social and traditional games for

prizes of minimal value. Federal Indian Law § 12.02, at 881–82.

Class I gaming is within the sole jurisdiction of tribes. Id. Class

II games include bingo, bingo-like games, and certain non-banking (meaning, players compete against each other and not the

“house”) card games. Id. Class II gaming is jointly regulated by

tribes and the National Indian Gaming Commission, excluding a

role for states. Id.

As a result of the Supreme Court’s ruling in Seminole Tribe

of Fla. v. Florida, 517 U.S. 44 (1996), states may assert Eleventh

Amendment immunity from tribal lawsuits alleging failure to negotiate in good faith—meaning, tribes are prohibited from

App. 11

refuses to enter into negotiations at all or has refused

to negotiate a Class III tribal-state compact in good

faith. Id. § 2710(d)(7)(A)(i), (B)(i). If there is a finding

by a district court that the state failed to negotiate in

good faith, IGRA requires the district court to order the

tribe and the state to negotiate a compact within sixty

days. Id. § 2710(d)(7)(B)(iii). If a compact fails to materialize within sixty days, the district court shall appoint a mediator who will require the tribe and the

state to submit their best and final proposal for a compact. Id. § 2710(d)(7)(B)(iv). The mediator then selects

the compact that best comports with policies embodied

in IGRA and other applicable federal laws. Id. If the

state still refuses to agree to be bound by the chosen

compact, IGRA requires the mediator to refer the matter to the Secretary, who must then issue gaming procedures consistent with the compact selected by the

mediator, other relevant provisions of IGRA, and the

laws of the state. Id. § 2710(d)(7)(B)(vii).

In addition to IGRA, this appeal implicates the Indian Reorganization Act of 1934. IRA authorizes the

Secretary “in his discretion” to acquire “any interest in

lands, water rights, or surface rights to lands, within

or without existing reservations,” through purchase,

gift, or exchange “for the purpose of providing land for

Indians.” Id. § 5108 (formerly § 465). IRA reflected a

major shift in federal policy from one favoring diminishment of tribal lands to one protecting tribal lands

bringing lawsuits in federal court against a state without the consent of the state. California has waived its immunity and has

thereby consented to such suits. See Cal. Gov’t Code § 98005.

App. 12

and supporting tribal self-government and economic

development. See Mescalero Apache Tribe v. Jones, 411

U.S. 145, 152 (1973).

In sum, in order for a tribe to engage in any gaming on off-reservation land acquired after October 17,

1988, the following must take place: (1) land—which is

either held in trust by the United States for the benefit

of any Indian tribe or individual or held by any Indian

tribe or individual subject to restriction by the United

States against alienation, 25 U.S.C. § 2703(4)(B)—

must be acquired; (2) the Secretary must make a determination finding that gaming would be in the best

interest of the Indian tribe and its members, and would

not be detrimental to the surrounding community, id.

§ 2719(b)(1)(A); and (3) the governor of the state must

concur in the determination, id.

In order for a tribe to engage in Class III gaming,

however, the Secretary must also either approve a

tribal-state compact, id. § 2710(d)(1)(C), or prescribe

secretarial procedures, if the state failed to negotiate

in good faith, id. § 2710(d)(7)(B)(vii). As explained

above, if a state refuses to negotiate a tribal-state compact in good faith or to enter into negotiations at all,

IGRA authorizes the Secretary to permit gaming by issuing gaming procedures consistent with a compact selected by a mediator, other relevant provisions of

IGRA, and the laws of the state.

App. 13

On appeal, Plaintiffs re-assert the arguments they

presented to the district court. Plaintiffs contend that:

(1) the Secretarial Procedures were issued in violation

of IGRA, as the Tribe purportedly never acquired jurisdiction or exercised governmental power over the

Madera Parcel; and (2) assuming the Tribe acquired

jurisdiction and exercised governmental power, IRA violates the Tenth Amendment by reducing the State’s

jurisdiction over land within its territory without its

agreement. Plaintiffs also, however, introduce two additional arguments, which they present for the first

time on appeal: (1) that the Secretarial Determination

finding that gaming at the Madera Parcel would be in

the best interest of the North Fork and not detrimental

to the surrounding community did not reflect sufficiently robust consultation, as required by law; and (2)

that the Governor lacked authority to concur in the

Secretarial Determination. We address the first two arguments below, and we conclude that the latter two

have been waived.

Plaintiffs contend that the Secretarial Procedures,

which permit gaming on the Madera Parcel, were

issued in violation of IGRA because the Tribe purportedly lacked jurisdiction and did not exercise governmental power over the Madera Parcel. In support of

this argument Plaintiffs appear to claim that: (1) tribal

jurisdiction was not automatically obtained by the

App. 14

Tribe when the United States acquired the Madera

Parcel in trust for the benefit of the Tribe; (2) the Secretary was required, but failed, to consider whether the

Tribe possessed jurisdiction and whether the Tribe exercised governmental power over the Madera Parcel;

and (3) the Tribe’s acquisition of any jurisdiction over

the Madera Parcel requires the State’s consent or cession—neither of which was granted. None of these arguments has merit.

As noted above, IRA authorizes the Secretary “in

his discretion” to acquire “any interest in lands, water

rights, or surface rights to lands, within or without existing Indian reservations,” through purchase, gift, or

exchange “for the purpose of providing land for Indians.” Id. § 5108. And while there is no Ninth Circuit

precedent precisely on point, other circuits have logically concluded that, as a matter of law, the federal government confers tribal jurisdiction over lands it

acquires in trust for the benefit of tribes. We agree.

In Upstate Citizens for Equality, Inc. v. United

States, for example, the Second Circuit concluded that

“[l]and held by the federal government in trust for Indians under [section 5108 of IRA] ‘is generally not subject to (1) state or local taxation; (2) local zoning and

regulatory requirements; or, (3) state criminal and civil

jurisdiction [over Indians], unless the tribe consents to

such jurisdiction.’ ” 841 F.3d 556, 561 (2d Cir. 2016) (alteration in original) (quoting Conn. ex rel. Blumenthal

App. 15

v. United States Dep’t of Interior, 228 F.3d 82, 85–86

(2d Cir. 2000)). The court further noted that the federal

government may, “by acquiring land for a tribe, divest

a state of important aspects of its jurisdiction, even if

a state previously exercised wholesale jurisdiction over

the land and even if ‘federal supervision over [a tribe]

has not been continuous.’ ” Id. at 568 (alteration in

original) (quoting United States v. John, 437 U.S. 634,

653 (1978)). Accordingly, “[w]hen the federal government takes land into trust for an Indian tribe, the state

that previously exercised jurisdiction over the land

cedes some of its authority to the federal and tribal

governments.” Id. at 569 (emphasis added).4

Similarly, in Yankton Sioux Tribe v. Podhradsky,

the Eighth Circuit concluded that “land held in trust

under [IRA] is effectively removed from state jurisdiction,” for “when Congress enacted [IRA] ‘it doubtless

intended and understood that the Indians for whom

the land was acquired would be able to use the land

free from state or local regulation or interference as

well as free from taxation.’ ” 606 F.3d 994, 1011 (8th

Cir. 2010) (quoting Chase v. McMasters, 573 F.2d 1011,

1018 (8th Cir. 1978)).

Notably and importantly, federal and Indian authority do

not entirely displace state authority over land taken into trust.

Upstate Citizens for Equality, 841 F.3d at 572. For example, under Public Law 280, 18 U.S.C. § 1162(a), California retains “broad

criminal jurisdiction over offenses committed by or against Indians within all Indian country within the State.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987),

superseded on other grounds by statute.

App. 16

As a general matter, too, off-reservation trust land

like the Madera Parcel is “Indian country” with all the

jurisdictional consequences that attach to that status.5

Federal law defines “Indian country,” in part, as “all dependent Indian communities within the borders of the

United States whether within the original or subsequently acquired territory thereof, and whether within

or without the limits of a state.” 18 U.S.C. § 1151(b).

Off-reservation trust land set aside for Indian use is

Indian country under subsection (b) of the Indian country statute. Off-reservation trust land is, by definition,

land set aside for Indian use and subject to federal control. Federal control over trust land is evident and

made clear in regulations such as 25 C.F.R. § 1.4(a),

which precludes state or local regulation of property

“belonging to any Indian or Indian tribe, band, or community that is held in trust by the United States[.]”

“Generally speaking, primary jurisdiction over land

that is Indian country rests with the Federal Government and the Indian tribe inhabiting it, and not with

the States.” Native Vill. of Venetie, 522 U.S. at 527 n.1.

As such, the federal government confers tribal jurisdiction over lands it acquires in trust for the benefit

of tribes as a matter of law.

"Although this definition by its terms relates only to federal

criminal jurisdiction, we have recognized that it also generally

applies to questions of civil jurisdiction. . . .” Alaska v. Native Vill.

of Venetie Tribal Gov’t, 522 U.S. 520, 527 (1998).

App. 17

Plaintiffs’ next contention, that the Secretary was

somehow legally required to consider whether the

Tribe possessed jurisdiction and exercised governmental power over the Madera Parcel, is equally unpersuasive. Plaintiffs do not point to any provision of IGRA—

or any other relevant authority, for that matter—requiring the Secretary to make either determination.

We decline to read into IGRA unnecessary requirements demanded neither by law nor logic. As to jurisdiction specifically, requiring the Secretary to evaluate

whether the Tribe possesses jurisdiction over the land

would be illogical. As noted above, the Tribe’s jurisdiction over the Madera Parcel operates as a matter of

law; it is not a question of fact. Upstate Citizens for

Equality, 841 F.3d at 569 (“When the federal government takes land into trust for an Indian tribe, the state

that previously exercised jurisdiction over the land

cedes some of its authority to the federal and tribal

governments.”).

As to governance, the Tribe most certainly exercises governmental power over the Madera Parcel.

IGRA authorizes gaming on “any lands title to which

is . . . held in trust by the United States for the benefit

of any Indian tribe . . . and over which an Indian tribe

exercises governmental power.” 25 U.S.C. § 2703(4)(B)

(emphasis added). Although federal courts have not often had occasion to consider whether a tribe “exercises

governmental power” within the meaning of IGRA,

those that have considered the question have held that

exercising governmental power requires a showing of

App. 18

both theoretical power to exercise jurisdiction over the

property and proof of actual exercise of that authority.

For example, the First Circuit in Rhode Island v. Narragansett Indian Tribe held that “[m]eeting this requirement does not depend upon the Tribe’s theoretical

authority, but upon the presence of concrete manifestations of that authority.” 19 F.3d 685, 703 (1st Cir.

1994).

In Massachusetts v. Wampanoag Tribe of Gay

Head, the First Circuit similarly concluded that a tribe

which had passed ordinances and entered into agreements with state and local governments for the provision of law enforcement and firefighting services

exercised governmental power sufficiently within the

meaning of IGRA. 853 F.3d 618, 625–26 (1st Cir. 2017).

The court underscored that “the achievement of

full-fledged self-governance” was not necessary—only

“merely movement in that direction.” Id. at 626.

Here, the record clearly indicates that in late 2006

the Tribe entered into “enforceable and binding” agreements with the County of Madera and the City of

Madera for the provision of law enforcement and fire

protection services at the Madera Parcel. The Tribe

also enacted a gaming ordinance in 2009 “governing

the conduct of gaming” at the Madera Parcel. The district court also took judicial notice of the fact that the

Tribe enacted an ordinance in October 2015 approving

a conservation plan for the Madera Parcel.

For these reasons, both conditions were met here.

The Tribe’s jurisdiction over the Madera Parcel

App. 19

operates as a matter of law and the Tribe clearly exercised governmental power when it entered into agreements with local governments and enacted ordinances

concerning the property.

Plaintiffs’ final claim in support of their argument

that the Secretarial Procedures were issued in violation of IGRA—that the Tribe’s acquisition of any jurisdiction over the Madera Parcel requires the State’s

consent or cession—is also unavailing. Plaintiffs point

to the Constitution’s Enclave Clause and a federal statute, 40 U.S.C. § 3112, as the sources of those requirements.6

The Enclave Clause does not apply here. The Secretary’s acquisition of land in trust for the benefit of a

tribe does not result in the creation of a federal enclave

or violate the Enclave Clause. See, e.g., Upstate Citizens

In general, Congress may acquire jurisdiction from a state

through two methods: consent and cession. The first method, consent, arises from the Constitution’s Enclave Clause. Case law construing the clause instructs that state consent is needed only

when the federal government takes “exclusive” jurisdiction over

land within a state. See, e.g., Paul v. United States, 371 U.S. 245,

263 (1963). “Exclusive” jurisdiction for Enclave Clause purposes

is equivalent to the sweeping power that Congress exerts over the

District of Columbia, the first subject of the clause. Id. The second

method, cession, relates to 40 U.S.C. § 3112. Under this federal

statute, the federal government can acquire jurisdiction from a

state by filing a notice accepting the state’s jurisdiction with the

state’s governor or in such manner as may be prescribed by the

laws of the state where the lands are situated. 40 U.S.C.

§ 3112(b).

App. 20

for Equality, 841 F.3d at 571 (“When land is taken into

trust by the federal government for Indian tribes, the

federal government does not obtain such categorically

exclusive jurisdiction over the entrusted lands.”); City

of Roseville v. Norton, 219 F. Supp. 2d 130, 151 (D.D.C.

2002) (“[I]t is clear that land taken into trust for

Indians does not create an exclusive federal enclave.

Consequently, the Enclaves [sic] Clause is not implicated[.]”). “State jurisdiction is . . . only reduced, and

not eliminated, when the federal government takes

land into trust for a tribe. Because federal and Indian

authority do not wholly displace state authority over

land taken into trust pursuant to § 5 of the IRA, the

Enclave Clause poses no barrier to the entrustment

that occurred here.” Upstate Citizens for Equality, 841

F.3d at 572.

Section 3112 also does not apply. By its own terms,

the statute sets forth requirements for the federal government’s acceptance of jurisdiction over land. See, e.g.,

40 U.S.C. § 3112(b) (“[The federal government] shall

indicate acceptance of jurisdiction . . . by filing a notice

of acceptance with the Governor of the State[.]”) Here,

the federal government is not accepting jurisdiction

“from the State.” In other words, the jurisdiction at issue here—which was created by operation of law, as

noted above—was not granted by the State to the federal government, or taken by the federal government

from the State. See, e.g., Kleppe v. New Mexico, 426 U.S.

529, 541–43 (1976) (noting the distinction between

Congress’ constitutional powers and its derivative legislative powers acquired from a state, and noting that

App. 21

where Congress acts pursuant to a non-derivative constitutional power, federal legislation preempts conflicting state law). The federal government’s power under

IRA to acquire the Madera Parcel in trust for the benefit of the Tribe is derived from Congress’ broad general power, pursuant to the Indian Commerce Clause,

to legislate with respect to Indian tribes—power which

has been consistently described as “plenary and exclusive” power over Indian affairs. United States v. Lara,

541 U.S. 193, 200 (2004); see also Cotton Petroleum

Corp. v. New Mexico, 490 U.S. 163, 192 (1989) (“[T]he

central function of the Indian Commerce Clause is to

provide Congress with plenary power to legislate in the

field of Indian affairs[.]”). Therefore, when Congress so

acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause. See

Kleppe, 426 U.S. at 543.

Thus, Plaintiffs’ claim that the Tribe’s acquisition

of any jurisdiction over the Madera Parcel requires the

State’s consent or cession fails.

Plaintiffs also contend that to the extent IRA creates tribal jurisdiction upon the Secretary’s acquisition

of land in trust for the benefit of the Tribe, it violates

the Tenth Amendment.7 Plaintiffs assert that “tak[ing]

sovereignty from a State without that State’s consent

or permission” violates the Tenth Amendment, as

Plaintiffs have standing to bring this claim pursuant to

Bond v. United States, 564 U.S. 211, 220–21 (2011).

App. 22

“[t]erritorial jurisdiction is a fundamental component

of State sovereignty.”

The authority to regulate Indian affairs is among

the enumerated powers of the federal government. U.S.

Const. art. I, § 8, cl. 3; Cotton Petroleum Corp., 490 U.S.

at 192; Morton v. Mancari, 417 U.S. 535, 551 (1974)

(noting that Congress has plenary power “to deal with

the special problems of Indians,” including the power

to legislate on their behalf ). “With the adoption of the

Constitution, Indian relations became the exclusive

province of federal law.” Cty. of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 234 (1985); see

also United States v. Forty-Three Gallons of Whiskey,

93 U.S. 188, 194 (1876) (“Congress now has the exclusive and absolute power to regulate commerce with the

Indian tribes[.]”).

The Tenth Amendment to the Constitution reserves to the states those powers not expressly delegated to the federal government. The powers delegated

to the federal government and those reserved to the

states by the Tenth Amendment are mutually exclusive. “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims

any reservation of that power to the States[.]” New

York v. United States, 505 U.S. 144, 156 (1992).

Because Congress has plenary authority to regulate Indian affairs, contrary to Plaintiffs’ argument,

IRA does not offend the Tenth Amendment. See, e.g.,

Carcieri v. Kempthorne, 497 F.3d 15, 39–40 (1st Cir.

2007) (en banc) (emphasizing that powers expressly

App. 23

delegated to Congress do not implicate the Tenth

Amendment), rev’d on other grounds sub nom. Carcieri

v. Salazar, 555 U.S. 379 (2009); see also Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1154 (9th

Cir. 2013), as amended (July 9, 2013) (holding that a

federal statute “was well within congressional power

under the Indian Commerce Clause and is not

trumped by the Tenth Amendment”).

Plaintiffs also raise two arguments for the first

time on appeal. First, Plaintiffs claim the Secretarial

Determination that gaming would be in the best interest of the Tribe and would not be detrimental to the

surrounding community did not reflect sufficiently robust consultation with “appropriate State and local officials” pursuant to section 2719(b)(1)(A) of IGRA

because some local authorities opposed the Tribe’s request for gaming on off-reservation lands. Second,

Plaintiffs claim that the Governor’s 2012 concurrence

in the Secretarial Determination was unauthorized as

a matter of state law8 and, alternatively, was revoked

The California Supreme Court has granted review of two

related cases involving the following legal question: “May the

Governor concur in a decision by the Secretary of the Interior to

take off-reservation land in trust for purposes of tribal gaming

without legislative authorization or ratification, or does such an

action violate the separation of powers provisions of the state

Constitution?” United Auburn Indian Cmty. of the Auburn

Rancheria v. Brown, No. S238544 (review granted Jan. 25, 2017);

Stand Up for California! v. State, No. S239630 (review granted

App. 24

before the issuance of the Secretarial Procedures. Neither of these arguments were presented to the district

court.

“Absent exceptional circumstances, we generally

will not consider arguments raised for the first time on

appeal, although we have discretion to do so.” El Paso

City v. Am. W. Airlines, Inc. (In re Am. W. Airlines, Inc.),

217 F.3d 1161, 1165 (9th Cir. 2000). Plaintiffs have

failed to address any of the exceptions to the general

rule that an argument raised for the first time on appeal is waived. See United States v. Carlson, 900 F.2d

1346, 1349 (9th Cir. 1990) (discussing the limited circumstances where the Court may consider an issue

raised for the first time on appeal, which include when

there are “exceptional circumstances” why the issue

was not raised in the trial court, when the new issue

arose while the appeal was pending because of a

change in the law, and when the issue presented is

purely one of law and the opposing party will not suffer

prejudice as a result of the failure to raise the issue in

the trial court).

Accordingly, Plaintiffs have waived these arguments.

Mar. 22, 2017) (briefing deferred pending decision in United Auburn).

App. 25

In summary, the Tribe’s jurisdiction over the

Madera Parcel operates as a matter of law and the

Tribe clearly exercised governmental power when it

entered into agreements with local governments and

enacted ordinances concerning the property. Because

neither the Enclave Clause nor 40 U.S.C. § 3112 are

implicated here, neither the State’s consent nor cession

is required for the Tribe to acquire any jurisdiction

over the Madera Parcel. Finally, IRA does not offend

the Tenth Amendment because Congress has plenary

authority to regulate Indian affairs. As such, we conclude that the Secretary’s actions were not “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A); Alaska Oil

& Gas, 815 F.3d at 554.

AFFIRMED.

App. 26

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CLUB ONE CASINO, INC.,

dba CLUB ONE CASINO;

GLCR, INC., dba

THE DEUCE LOUNGE

AND CASINO,

Plaintiffs,

UNITED STATES DEPARTMENT OF THE INTERIOR;

RYAN ZINKE, in his official

capacity as Secretary of the

Interior; and MIKE BLACK

in his official capacity as

Acting Assistant Secretary of

the Interior – Indian Affairs,

CASE NO. 1:16-cv01908-AWI-EPG

ORDER DENYING

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

(Doc. 36)

ORDER GRANTING

DEFENDANTS’

MOTION FOR

SUMMARY JUDGMENT (Doc. 37)

ORDER CLOSING

THE CASE

(Filed Jul. 13, 2018)

Defendants.

Introduction

Plaintiffs Club One Casino and The Deuce Lounge

(collectively “Plaintiffs” or “Club One”) bring the instant Administrative Procedures Act (“APA”) challenge

to the issuance of Secretarial Procedures by the United

States Department of the Interior, the Secretary of the

Interior, and the Assistant Secretary for Indian Affairs

(collectively “DOI” or “Federal Defendants”) permitting

the North Fork Rancheria of Mono Indians (“North

Fork”) to conduct tribal gaming on a 305.49 acre parcel

App. 27

of land in Madera County, California (the “Madera

Site”). Complaint, Doc. 1 (“Compl.”) at ¶ 1. The substance of the APA challenge is directed at whether

the Federal Defendants adequately considered whether

North Fork had jurisdiction over the Madera Site for

purposes of the Indian Gaming Regulatory Act

(“IGRA”), 29 U.S.C. § 2701, et seq.

The parties have filed cross motions for summary

judgment. Plaintiffs’ argument is twofold. First they

contend that “the Secretarial Procedures [offend the

APA] because defendants . . . never considered . . .

whether the North Fork Tribe actually possesses territorial jurisdiction over the proposed casino site.” Doc.

36-1 at 12. The Federal Defendants respond that North

Fork necessarily has jurisdiction over the proposed

gaming site as a result of the fee-to-trust determination conducted pursuant to the Indian Reorganization

Act (“IRA”), taking that land into trust for the Tribe.

Second, Plaintiffs argue, assuming that the fee-to-trust

determination does shift some jurisdiction from the

state to the Tribe, the IRA violates of the Tenth

Amendment.

For the following reasons, Plaintiffs’ motion will be

denied and the Federal Defendants’ motion will be

granted.

II.

Background

Although the background surrounding the proposed gaming facility at the Madera Site is extensive,

the Court limits this section to the information

App. 28

relevant to, or addressed in, Plaintiffs’ challenge to the

Secretary’s issuance of Secretarial Procedures.

A. Plaintiffs – Club One Casino and The Deuce

Lounge

Club One Casino and The Deuce Lounge are both

cardrooms licensed by the State of California. Declaration of Kyle Kirkland, Doc. 36-3 (“Kirkland Decl.”) at

¶¶ 2, 6. Club One operates in Fresno, California and is

licensed by the City of Fresno. Id at ¶ 2. The Deuce

Lounge is located in Goshen, California and licensed

by the County of Tulare. Id. at ¶ 6. Both Club One and

The Deuce Lounge are limited in the kinds of games

that they may offer. For instance, both operate poker,

baccarat, and blackjack games but neither is permitted

to operate slot machines or banking card games where

the player bets against the house. Id. at ¶¶ 2, 6.

The Madera Site is roughly 25 miles from Club

One and 65 miles from The Deuce Lounge. Kirkland

Decl. at ¶¶ 3, 7. The Secretarial Procedures permit

North Fork to operate slot machines and banking card

games that Plaintiffs cannot operate. See Administrative Record (“AR”) at AR00002202 (North Fork is permitted under the Secretarial Procedures to operate

“Gaming Devices,” i.e., slot machines, and “banking or

percentage card games,” among other things.) Both

Club One and The Deuce Lounge contend that their

businesses will suffer if North Fork is permitted to conduct Class III gaming at the Madera Site. Kirkland

Decl. at ¶¶ 5, 9.

App. 29

B. The North Fork Rancheria of Mono Indians

The North Fork is a federally recognized Indian

tribe. AR00000241; see generally Stand Up for California! v. United States Department of the Interior, 204

F.Supp.3d 212, 228-231 (D.D.C. Sept. 6, 2016) aff ’d 879

F.3d 1177 (D.C. Cir. Jan. 12, 2018) rehrg. en bank denied (Apr. 10, 2018).1 “In 1916, pursuant to appropriations acts authorizing the Secretary to purchase land

in California for Indians, see Act of May 18, 1916, ch.

125, § 3, 39 Stat. 62, . . . the DOI purchased what became the North Fork Rancheria, comprised of 80 acres

of land near the town of North Fork, for the use and

benefit of approximately 200 landless Indians belonging to the North Fork band.” Stand Up for California!,

204 F.Supp.3d at 229. That 80-acre plot of land is approximately 4 miles east of the town of North Fork in

Madera County. AR 00000245. “The land, which was

‘poorly located[,] . . . absolutely worthless as a place

to build homes on’ and ‘lack[ed] . . . water for [both]

The administrative record contains many of the orders issued in actions related to the proposed Class III gaming at the

Madera Site. See, e.g., AR00000456-00000498, 0000134800001363, 00001366-00001388, 00001542-00001552. To name a

few, the record contains court orders from Stand Up For California! v. State of California, Madera Superior Court Case No.

MCV062850 (June 26, 2014), North Fork Rancheria of Mono Indians v. California, Case No. 15-cv-419-AWI-SAB, 2015 WL

11438206 (E.D. Cal. Nov. 13, 2015), and Stand Up For California!

v. United States Department of the Interior, Case No. 12-cv-2039BAH, 204 F.Supp.3d 212 (D. D.C. 2016). For the sake of clarity

and accessibility, the Court uses the reporter citations for those

cases rather than citing to their location in the administrative

record in this Court’s CM/ECF system.

App. 30

domestic purposes and . . . irrigation,’ was essentially

uninhabitable.” Stand Up for California!, 204

F.Supp.3d at 229 (citing a 1920 survey of landless nonreservation Indians in California). Additionally, that

reservation was “ ‘on environmentally sensitive lands

within the Sierra National Forest, . . . near Yosemite

National Park. . . .’ ” Id. at 231 (citing the Bureau of Indian Affairs, Record of Decision, finding that the

Madera Site should be gaming-eligible pursuant to 25

U.S.C. § 2719(b)(1) (Sept. 1, 2011)).

The United States also holds in trust for the Tribe

a 61.5-acre tract of land “ ‘located on a steep hillside . . .

in . . . North Fork.’ ” Stand Up for California!, 204

F.Supp.3d at 231. (citation omitted). “The tract contains a community center, basic infrastructure (i.e.,

roads, water, sewer), pads for nine single-family homes,

and the North Fork Tribe’s ‘current government headquarters.’ ” Id. (citation omitted).

C. The Madera Site Acquisition

The Madera Site is a 305.49-acre plot of land in

Madera County, California, approximately 15 miles

north of the city limits of the City of Fresno on Avenue

17, just west of the intersection with State Route 99.

AR00002299-00002300; Doc. 37-2 at 3. The Madera

Site is about 38 miles from North Fork’s Rancheria

lands and about 36 miles from its 61.5 acre tract which

is used for housing. AR00000245; Stand Up for California, 204 F.Supp.3d at 231; Doc. 37-2 at 3.

App. 31

In March of 2005, North Fork submitted an application to the Bureau of Indian Affairs (“BIA”) to have

the Madera Site taken into trust for the purpose of operating a Class III gaming facility (“fee-to-trust application”). Doc. 37-2 at 5; AR00000240. In the same

month, North Fork also requested that the Secretary

make the two-part after-acquired lands determination2

pursuant to 25 U.S.C. § 2719(b)(1)(A) (“2719 application”). Doc. 37-2 at 5; AR00000240; AR 00000160. On

September 1, 2011, the Secretary issued a Record of

Decision on the 2719 application (“the 2719 ROD”),

finding that gaming on the Madera Site would be in

the best interest of North Fork and not detrimental

to the surrounding community. Doc. 37-2 at 6;

AR00000240. The Governor of the State of California

(“the Governor”) concurred with that determination on

August 31, 2012. Doc. 32-7 at 7; AR 0000031700000318.

On November 26, 2012, the Assistant Secretary—

Indian Affairs issued a Record of Decision approving

the fee-to-trust application (“the IRA ROD”). Doc. 37-2

at 7; AR00000159-00000227. The Madera Site was acquired in trust by the United States for the benefit of

North Fork in 2013. North Fork Rancheria of Mono

Indians of California v. State of California, 2015 WL

11438206, *2 (E.D. Cal. Nov. 13, 2015) (“North Fork v.

California”); Doc. 37-2 at 3. Prior to the acquisition of

That determination sought is regularly referred to as the

“two-part” determination. E.g., Cachil Dehe Band of Wintun Indians of Colusa Indian Community v. Zinke, ___ F.3d ___, 2018

WL 2033762, *3 (9th Cir. May 2, 2018).

App. 32

the Madera Site in trust for North Fork, the land was

privately owned. Doc. 37-2 at 4; Doc. 30 at 3. Jurisdiction over the land was not reserved by the United

States when California was admitted to the Union in

1850. Doc. 37-2 at 4. The State of California has never

taken express steps to cede territorial jurisdiction over

the land to the United States or North Fork and the

United States has never issued a written acceptance of

cession of jurisdiction in connection with the Madera

Site. Doc. 37-2 at 4.

D. Tribal-State Compact Negotiation History

On August 31, 2012, the Governor concluded a

compact with North Fork to conduct Class III gaming

at the Madera Site. Doc. 37-2 at 7; AR0000032000000438. That compact was concluded on the same

date as the Governor’s concurrence with the Secretary’s

two-part determination and before the IRA ROD issued or the land was taken into trust for North Fork.

The Governor’s office then forwarded the compact to the

California Legislature for ratification. Doc. 37-2 at 7;

North Fork v. California, 2015 WL 11438206 at *2. On

June 27, 2013, the California Legislature ratified the

compact by means of Assembly Bill 277 (“AB 277”), and

the Governor signed the bill on July 3, 2013. Doc. 37-2

at 8. The California Secretary of State forwarded the

compact to the Secretary of the Interior on July 16, 2013,

with the notation that the effective date of the compact

would be January 1, 2014, unless a referendum

App. 33

measure qualified for the ballot. AR0000043900000440.3 The Secretary of State made clear that if

the referendum measure qualified for the ballot, AR

277 would not take effect until the voters had voted on

it.

Notice of the completed compact was published in

the Federal Register on October 22, 2013, stating that

the compact was “approved” and was taking effect to

“the extent it was consistent with IGRA.” 78 Fed.Reg.

62649-01 (Oct. 22, 2013). On November 20, 2013, the

Secretary of State informed the Secretary of the Interior that a veto referendum on AR 277 qualified for the

ballot (“Proposition 48”) and that the measure would

go before voters at the November 3, 2014 general election. AR00000455. Sixty one percent of California voters voted against the legislative ratification of the

compact. Doc. 37-2 at 8.4

On January 2, 2015, North Fork requested that

the State of California enter into negotiations for a

new compact for Class III gaming on the Madera Site.

Doc. 37-2 at 8-9; North Fork v. California, 2015 WL

11438206 at *7. The State refused, indicating that negotiations for a compact regarding gaming at the

The Governor’s office sent a separate letter on July 9, 2013,

indicating that the State of California had entered into a compact

with North Fork. AR00000441.

See Index of California Referenda located at

http://www.sos.ca.gov/elections/ballot-measures/referendum/ (last

accessed on July 11, 2018).

App. 34

Madera Site would be “futile” given the result of the

referendum. Id.

E. The Good Faith Litigation, the Remedial Process,

and Issuance of Secretarial Procedures

On March 17, 2015, North Fork filed suit against

California pursuant to 25 U.S.C. § 2710(d)(7), seeking

a determination that the State of California did not negotiate in good faith toward an enforceable compact.

Doc. 37-2 at 9; see generally North Fork v. California,

2015 WL 11438206. On November 13, 2015, the Court

held that by refusing to negotiate, California failed to

negotiate in good faith to conclude a Tribal-State compact within the meaning of 25 U.S.C. § 2710(d)(7)(B)(iiiii). Id. at *8. On that basis, the Court ordered North

Fork and California to conclude a compact within 60

days of the date of that order. Id. at *8, 12 (citing 25

U.S.C. § 2710(d)(7)(B)(iii)).

North Fork and California did not conclude a compact within the 60-day period allowed. Doc. 37-2 at 9.

On January 25, 2016, the Court appointed a mediator

and directed North Fork and California to submit

their last best offers. Doc. 37-2 at 9; see 25 U.S.C.

§ 2710(d)(7)(B)(iv). The mediator was directed to select

from the two proposed compacts the one which best

comported with IGRA, other Federal law, and the findings and order of the Court. Doc. 37-2 at 9; see 25 U.S.C.

§ 2710(d)(7)(B)(vii). On February 11, 2016, the mediator determined that the proposed compact submitted

by North Fork best met the Court’s direction. Doc.37-2

App. 35

at 9; AR00000002-AR00000003. From the date that

the mediator returned the selected compact to the California, California was permitted to sixty days to consent to the selected compact or decline to do so. 25

U.S.C. § 2710(d)(7)(B)(vi). California did not consent to

the compact within the time permitted. Doc. 37-2 at 10;

AR00000001. In conformity with the requirements of

IGRA and the order of the Court, the mediator forwarded the selected compact to the Secretary of the

Interior to prescribe procedures under which North

Fork could conduct Class III gaming at the Madera

Site. Doc. 37-2 at 10; AR00000001; see 25 U.S.C.

2710(d)(7)(B)(vii).

On July 29, 2016, the Secretary issued Secretarial

Procedures permitting the Tribe to conduct Class III

gaming without a Tribal-State compact. AR0000218600002325. In issuing those procedures, the Secretary

did not make any express finding regarding whether

North Fork had jurisdiction over the Madera Site or

whether it was Indian land. Doc. 37-2 at 10;

AR00002186-00002325.

The administrative record contains no evidence

that any governmental entity had affirmatively concluded that North Fork had territorial jurisdiction over

the Madera Site. Doc. 37-2 at 10-11. However, in resolving the cross-motions for judgment on the pleadings

in North Fork v. California, 2015 WL 11438206 at *8,

the Court explained that it was “undisputed” between

North Fork and California that “the Madera [Site] [is]

gaming-eligible Indian land[ ] within the meaning of

25 U.S.C. §§ 2703(4) and 2719(b)(1)(A).” See also North

App. 36

Fork v. California, 2016 WL 4208452, *5 (E.D. Cal. Aug.

16, 2016) (subsequent determination) (The Court emphasized that the State of California admitted that

North Fork “exercises jurisdiction over the Madera

Parcel, which constitutes ‘Indian lands’ under IGRA.”)5

F. North Fork Tribal Council Action With Respect to

the Madera Site6

On October 16, 2015, the North Fork Tribal Council passed Resolution No. 15-58 approving a general

policy for permitting of Indian agricultural lands and

a conservation plan for the Madera Site. Declaration of

Steven Miskinis, Doc. 37-3 (“Miskinis Decl.”) at 1-6.

G. This Court’s Decision Denying Supplementation

of the Administrative Record

Club One filed a motion, seeking to supplement

the administrative record compiled by the Secretary.

Doc. 22. Club One argued that consideration of the

ownership history of the Madera Site is relevant to

whether North Fork had jurisdiction over that land. Id.

at 5-6, 8-10. Therefore, Club One argued, supplementation of the record was necessary to determine

whether the Secretary had considered all factors

No order in that action expressly considered whether there

could be Indian lands over which a tribe did not have jurisdiction.

Plaintiffs object to consideration of this evidence on the

bases that it is irrelevant and falls outside of the administrative

record.

App. 37

relevant to the prescribing of Secretarial Procedures

for Class III gaming. Id. at 5.

In order to determine whether to permit supplementation of the administrative record, it was “necessary [for the Court] to determine” what it means for

“an Indian tribe [to] exercise jurisdiction over land” for

purposes of IGRA. Doc. 33 at 6.7 To that end, the Court

permitted the parties to submit supplemental briefing

on that issue. Doc. 30 at 8. Mirroring their present positions, Club One argued that a State must cede jurisdiction over land to a tribe or the United States in

order for a tribe to have jurisdiction over that land for

purposes of IGRA; whereas, the Secretary argued that

jurisdiction over land, for purposes of IGRA, is conferred to a tribe when the land is taken into trust by

the United States for the benefit of that tribe.

The Court made the following limited determination:

When the Secretary takes land into trust for

an Indian tribe, some but not all jurisdiction

is transferred from the State to the Indian

tribe and the Federal Government. The fee-totrust determination does not result in the

Federal Government or an Indian tribe holding exclusive jurisdiction over the land.[fn]

However, IGRA does not require a tribe to

In prior orders the Court has interchangeably referred to

“having” and “exercising” jurisdiction over land. Because it now

addresses “having jurisdiction” for purposes of § 2710(d)(3)(A),

(d)(7)(B)(vii) and “exercising governmental power” for purposes of

2703(4), the Court ceases the former imprecision.

App. 38

exercise exclusive jurisdiction over land.[fn]. . . .

[W]hen the Secretary . . . takes land into trust

for an Indian tribe, that Indian tribe certainly

has jurisdiction over that land for purposes of

IGRA.

Doc. 33 at 9-10. Because the parties were (and are) in

agreement that the Madera Site was held in trust by

the United States for North Fork at the time the Secretary prescribed gaming procedures (and Club One is

not challenging the fee-to-trust determination), the

Court found that the material relating to the ownership history of the Madera Site was irrelevant to the

Secretarial determination in question here—the prescribing of gaming procedures.

III.

Legal Standard

Summary judgment is an appropriate mechanism

for reviewing agency decisions under the APA. Turtle

Island Restoration Network v. United States Dept. of

Commerce, 878 F.3d 727, 732 (9th Cir. 2017); City &

County of San Francisco v. United States, 130 F.3d 873,

877 (9th Cir.1997); Occidental Engineering Co. v. Immigration & Naturalization Service, 753 F.2d 766,

769–70 (9th Cir.1985). However, courts do not utilize

the standard analysis for determining whether a genuine issue of material fact exists. See Occidental, 753

F.2d at 769–70; Academy of Our Lady of Peace v. City

of San Diego, 835 F.Supp.2d 895, 902 (S.D. Cal. 2011);

California RSA No. 4 v. Madera Cnty., 332 F.Supp.2d

1291, 1301 (E.D. Cal. 2003). A court “is not required to

resolve any facts in a review of an administrative

App. 39

proceeding.” Occidental, 753 F.2d at 769; California

RSA, 332 F.Supp.2d at 1301. Instead, in reviewing an

agency action, the relevant legal question for a court

reviewing a factual determination is “whether the

agency could reasonably have found the facts as it did.”

San Francisco, 130 F.3d at 877; Occidental, 753 F.2d at

769.

The Court’s review in resolving an APA challenge

to an agency action is circumscribed: the court will only

set aside agency action if its “ ‘findings[ ] and conclusions [are] found to be . . . arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance

with law,’ ‘in excess of statutory jurisdiction’ or ‘without observance of procedure required by law.” Turtle

Island, 878 F.3d at 732 (quoting 5 U.S.C. § 706(2)(A),

(C)-(D)). Agency action is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance

with law “only if the agency relied on factors Congress

did not intend it to consider, entirely failed to consider

an important aspect of the problem, or offered an explanation that runs counter to the evidence before the

agency or is so implausible that it could not be ascribed

to a difference in view or the product of agency expertise.” Defs. Of Wildlife v. Zinke, 856 F.3d 1248, 12561257 (9th Cir. 2017) (citation omitted); see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins.

Co., 463 U.S. 29, 43 (1983) (An “agency must examine

the relevant data and articulate a satisfactory explanation for its action.”) This standard is “highly deferential, presuming the agency action to be valid and

affirming the agency action if a reasonable basis exists

App. 40

for its decision.” Ranchers Cattlemen Action Legal

Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric.,

499 F.3d 1108, 1115 (9th Cir. 2007) (quoting Indep.

Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th

Cir. 2000)). Review under this standard is narrow,

and the court may not substitute its judgment for that

of the agency. Morongo Band of Mission Indians v. Fed.

Aviation Admin., 161 F.3d 569, 573 (9th Cir. 1988).

Nevertheless, the court must “engage in a substantial

inquiry . . . a thorough, probing, in-depth review.” Native Ecosys. Council v. U.S. Forest Serv., 418 F.3d 953,

960 (9th Cir. 2005) (citation and internal quotations

omitted).

Assuming an error was made, the Court considers

whether it was harmless. 5 U.S.C. § 706. In the context

of agency review, the role of harmless error is constrained. The doctrine may be employed only “when a

mistake of the administrative body is one that clearly

had no bearing on the procedure used or the substance

of decision reached.” Buschmann v. Schweiker, 676 F.2d

352, 358 (9th Cir.1982).

IV.

Discussion

Plaintiffs’ motion indicates that it presents two

issues: (1) whether the Secretary violated IGRA when

he issued Secretarial Procedures “authorizing North

Fork . . . to operate a casino on off-reservation land

that is still under state jurisdiction?”;8 and (2) “[d]oes

Plaintiffs also dispute whether North Fork exercised governmental power over the Madera Site such that it is

App. 41

it violate the Tenth Amendment if the Federal Government unilaterally diminishes a state’s territorial jurisdiction and shifts it to an Indian tribe?” Doc. 36-1 at

10. Plaintiffs present a third argument: (3) the Secretarial Procedures “are not consistent with state law”

because no compact is in effect and they therefore violate IGRA. Doc. 36-1 at 47.

The Court will resolve the first issue: No, because

the land was taken into trust by the United States for

North Fork, North Fork had jurisdiction over that land

for purposes of IGRA and therefore IGRA was not violated by Secretary prescribing Secretarial Procedures.

Next, the Court will not resolve the second issue

because the agency action that purportedly violates

the Tenth Amendment—the fee-to-trust determination

made pursuant to the IRA—is not challenged in this

action therefore the question is not properly before the

Court. Insofar as Plaintiffs seek to vindicate the State

of California’s partial divestment of jurisdiction by operation of the IRA, it is well settled in this Circuit

that they lack standing to do so. Oregon v. Legal Servs.

Corp., 552 F.3d 965, 972 (9th Cir. 2009) (citing Tenn.

Elec. Power Co. v. Tenn Valley Auth, 306 U.S. 118, 144

(1939); Stop The Casino 101 Coalition v. Salazar, 384

Fed.Appx. 546, 548 (9th Cir. 2010); see City of Roseville

v. Norton, 219 F.Supp.2d 130, 146-148 (D.D.C. 2002).

appropriately considered “Indian land.” See 25 U.S.C. § 2703(4)(B);

25 C.F.R. § 502.12(b). The Court will address that argument as

well.

App. 42

Finally, the court will resolve the third issue: Secretarial Procedures are not inconsistent with California law merely because a compact does not exist.

A. IGRA—Jurisdiction Over Land and Governmental

Power Requirements

In the final stage of the IGRA remedial process,

the Secretary must prescribe gaming procedures under which Class III gaming may be conducted “on the

Indian lands over which the Indian tribe has jurisdiction.” 25 U.S.C. § 2710(d)(7)(B)(vii)(II); see also 25

U.S.C. 2710(d)(3)(A). Courts, including this Court, have

read that section as imposing two requirements.9 See

Massachusetts v. Wampanoag Tribe of Gay Head, 853

F.3d 618, 624 (1st Cir. 2017) cert. denied, 138 S.Ct. 639.

The Court would note that the language of

§ 2710(d)(7)(B)(vii)(II) could be just as easily read to require three

showings as two: (1) Indian lands, over which (2) the Indian tribe

(3) exercises jurisdiction. Indeed, in the context of § 2710(d)(3)(A),

courts have found those three prerequisites. See Mechoopda Indian Tribe of Chico Rancheria v. Schwarzenegger, 2004 WL

1103021, *5 (E.D. Cal. Mar. 12, 2004) (citing Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Engler, 304 F.3d 616

(6th Cir. 2002) However, the Ninth Circuit made clear that challenges to a tribe’s status as an Indian tribe is a collateral attack,

not appropriately raised in the IGRA context. See Big Lagoon

Rancheria v. California, 789 F.3d 947, 953-954 (9th Cir. 2015) (en

banc) (Asserting that a tribe lacks “standing to invoke . . .

IGRA,”—in that situation, whether or not the tribe is an Indian

tribe, see § 2710(d)(3)(A)—“necessarily argues that the [Bureau of

Indian Affairs] exceeded its authority when it took” land into

trust for the tribe pursuant to the IRA. “The proper vehicle to

make such a challenge is a petition to review [the IRA entrustment decision] pursuant to the APA.”)

App. 43

The first requirement is that an Indian tribe “have jurisdiction” over the gaming site. Wampanoag Tribe,

853 F.3d at 624; Upstate Citizens for Equality, Inc. v.

United States, 841 F.3d 556, 566 (2nd Cir. 2016) cert.

denied, 2017 WL 5660979 (Nov. 27, 2017) (quoting

Citizens Against Casino Gambling in Erie County v.

Chaudhuri, 802 F.3d 267, 279 (2nd Cir. 2015)); Miami

Tribe of Oklahoma v. United States, 656 F.3d 1129,

1144 (10th Cir. 2011); Club One Casino, Inc. v. United

States Dept. of Interior, 2017 WL 5877033, *4 (E.D. Cal.

Nov. 29, 2017). In its last order, the Court expressly declined to set out the precise contours of what it means

for an Indian tribe to “have jurisdiction” over a particular piece of land. Club One, 2017 WL 5877033 at *6.

The second requirement, arising from the definition of “Indian land,” is that the tribe “exercise governmental power” over the land. 25 U.S.C. § 2703(4)(B); see

Wampanoag Tribe, 853 F.3d at 624-626 (citing, inter

alia, State of R.I. v. Narragansett Indian Tribe, 19 F.3d

685, 702 (1st Cir. 1994)); Chaudhuri, 802 F.3d at 286.

In short, an Indian tribe must exercise governmental power over land held in trust by the United

States for the tribe for the land to be Indian land. 25

U.S.C. § 2703(4)(B). In order to conduct gaming on that

Indian land (or demand that a state negotiate toward

an enforceable compact), the Indian tribe conducting

that gaming must be the tribe that has jurisdiction

over that land.10

The Secretary challenges whether he must independently

verify that those requirements are met prior to issuing secretarial

App. 44

B. Having Jurisdiction Over Indian Land

Plaintiffs begin their argument by quoting the

portion of this Court’s November 29, 2017 order that

framed the issue then before the Court: “Legally, the

parties are in agreement that, at least in the ordinary

case, acquisition of an ownership interest in land by

the United States only impacts title to that land; it

does not divest the State of jurisdiction over that land.

[citation omitted] . . . The parties disagree regarding

the jurisdictional impact of the Secretary taking the

Madera Site into trust for North Fork through the authority delegated to the Secretary by the IRA.” Doc. 361 at 10 (quoting Doc. 33 at 5). It is not until much later

in Plaintiffs’ argument that they recognize that the

Court resolved that question in its November 29, 2017

order. See Doc. 36-1 at 44. In the interim, Plaintiffs’ argument reiterates (albeit in more depth) the argument

submitted in response to this Court’s authorization for

supplemental briefing in resolving Plaintiffs’ motion to

supplement the administrative record. Compare Doc.

32 with Doc. 36-1.

procedures in light of the fact that those same requirements were

necessary in order for North Fork to initiate its good faith negotiation litigation against the State to begin with. Compare 25

U.S.C. § 2710(d)(3)(A) with 25 U.S.C. § 2710(d)(7)(B)(vii)(II). This

Court shares the Secretary’s doubts regarding whether the Secretary is required by § 2710(d)(7)(B)(vii)(II) to verify that the

same requirements for a tribe to institute a good faith negotiation

action have been met. Although the Secretary’s position offers the

appeal of eliminating the risk of inconsistent findings that IGRA

does not appear to anticipate, because the Court finds that both

the “having jurisdiction” and “exercising governmental power” requirements are met, the court does not resolve that question.

App. 45

In both iterations of Plaintiffs’ argument, the reasoning is as follows: IGRA requires “territorial jurisdiction” over any land where Class III gaming is to be

conducted; California has territorial jurisdiction over

all land within its borders, including the Madera Site;

transfer of title to real property does not impact territorial jurisdiction over that real property; in order for

an Indian tribe to acquire jurisdiction over land sufficient for purposes of IGRA, the State in which the land

lies must expressly cede jurisdiction to the tribe or the

United States; no express cession of jurisdiction by

California has taken place with respect to the Madera

Site and the United States has not expressly accepted

jurisdiction of the Madera Site; therefore North Fork

does not have jurisdiction over the Madera Site and

the Secretary erred in issuing Secretarial Procedures.

To Plaintiffs’ motion to supplement and motion for

summary judgment, the Secretary has responded that

North Fork’s jurisdiction over the Madera Site, for purposes of IGRA, arose through the act of placing the

land in trust for the tribe. The Court agreed with the

Secretary’s position in denying Plaintiffs’ motion to

supplement the administrative record and the Court

remains in agreement now.

i. The fee-to-trust determination shifts some jurisdiction from a State to an Indian tribe.

As a starting point, Congress has the power to

regulate commerce with the Indian tribes. U.S. Const.

art. I, § 8, cl. 3 (conferring upon Congress the power

App. 46

“[t]o regulate commerce . . . with the Indian tribes.”)

The Supreme Court has described Congressional authority under the Indian Commerce Clause as “plenary.” Cotton Petroleum Corp. v. New Mexico, 490 U.S.

163, 192 (1989); Morton v. Mancari, 417 U.S. 535, 551

(1974) (noting that Congress has plenary power “to

deal with the special problems of Indians,” including

the power to legislate); South Dakota v. Yankton Sioux

Tribe, 522 U.S. 329, 343 (1998). The IRA was enacted,

at least in part, pursuant to that authority. See Upstate

Citizens, 841 F.3d at 568; South Dakota v. United

States Department of the Interior, 787 F.Supp.2d 981,

992 (D. S.D. 2011).

The United States Supreme Court has been clear

that § 5 of the IRA “provides the proper avenue for” an

Indian tribe “to reestablish sovereign authority over

territory. . . .” City of Sherrill, N.Y. v. Oneida Indian

Nation of New York, 544 U.S. 197, 221 (2005) (citing

25 U.S.C. § 465, now codified at 25 U.S.C. § 5108); see

Carcieri v. Kempthore, 497 F.3d 15, 36 (1st Cir. 2007)

rev’d on other grounds 555 U.S. 379 (Regardless of how

an Indian tribe lost “aboriginal title or ancient sovereignty” over land—even if it is fully extinguished—§ 5

is appropriate to “establish[ ] tribal sovereignty over

land.”); Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 531 n.6 (1998) (suggesting

that action by Congress or an executive agency acting

under delegated authority can create or recognize Indian rights with respect to property). However, the

Supreme Court did not detail the precise ways that

taking land into trust for an Indian tribe impact the

App. 47

share of jurisdiction between an Indian tribe, a State,

and the Federal Government. See Sherrill, 544 U.S. at

220-221 (The implementing regulations for § 5 of the

IRA are “sensitive to the complex interjurisdictional

concerns that arise when a tribe seeks to regain sovereign control over territory.”) The Ninth Circuit has indicated that § 5 of the IRA is designed to allow the

Secretary hold such lands “in the legal manner and

condition in which trust lands were held under the . . .

court decisions [existing before enactment of the IRA,

i.e.,] free of state regulation.”11 Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 666 (9th Cir.

1975); see Chaudhuri, 802 F.3d at 285-286; Cf. Guidville Band of Pomo Indians v. NGV Gaming, Ltd., 531

F.3d 767, 777 (9th Cir. 2008) (The DOI gives state governments an opportunity to object to the fee-to-trust

determination by demonstrating “why taking the land

into trust would ‘impact [ ] their jurisdiction. . . .”) (citing, inter alia, 25 C.F.R. § 151.11(d)). Under Ninth Circuit authority, this Court should treat land placed in

trust for a tribe pursuant to § 5 of the IRA in the same

manner as land held in trust for tribes prior to enactment of the IRA in 1934. Santa Rosa, 532 F.2d at 666;

see also Rice v. Olson, 324 U.S. 786, 789 (1945) (“The

policy of leaving Indians free from state jurisdiction

and control is deeply rooted in the Nation’s history.”)

“Rather than reading the omission of a provision exempting the lands [taken into trust pursuant to § 5 of

This Court does not read Santa Rosa for the proposition

that Indian jurisdiction over land is entirely exclusive of state

jurisdiction. See 18 U.S.C. § 1151.

App. 48

the IRA] from state regulation as evidencing a congressional intent to allow state regulation, [the Ninth Circuit] read the omission as indicating that Congress

simply took it for granted that the states were without

such power, and that an express provision was unnecessary; i.e., that the exemption was implicit in the

grant of trust lands under existing legal principals.”

Santa Rosa, 532 F.2d at 666 n. 17.

Other circuits share a similar understanding. The

Second Circuit held in Upstate Citizens, 841 F.3d at

569, that “[w]hen the federal government takes land

into trust for an Indian tribe, the state that previously

exercised jurisdiction over the land cedes some of its

authority to the federal and tribal governments.” Accord Chaudhuri, 802 F.3d at 284 (finding in dicta that

lands taken into trust pursuant to § 5 of the IRA are

subject to tribal jurisdiction). See also, Upstate Citizens

for Equality, Inc. v. United States, ___ S.Ct. ___, 2017

WL 5660979, *1, 3 (Nov. 27, 2017) (Thomas, J., dissenting from denial of cert.) (The Supreme Court’s reading

of the IRA in Sherrill and the Second Circuit’s reading

of the IRA in Upstate Citizens permit the Secretary “to

take any state land and strip the State of almost all

sovereign power over it ‘for the purpose of providing

land for the Indians.’ ”) The Court agrees with the

Second Circuit that use of the fee-to-trust provision of

§ 5 of the IRA shifts at least some jurisdiction from the

State to a tribe and the federal government.

The cases cited by Plaintiffs do not undermine

that conclusion.

App. 49

ii. The shift of jurisdiction to an Indian tribe resulting from a fee-to-trust determination is

enough to satisfy the “having jurisdiction over”

Indian lands requirement of § 2710(d)(1)(A)(i).

IGRA does not define what it means to have jurisdiction over Indian land. The answers that Courts

have given to this question are varied. The Second Circuit has indicated that “ ‘[j]urisdiction,’ in this context,

means ‘tribal jurisdiction’—‘a combination of tribal

and federal jurisdiction over land,’ to the exclusion

(with some exceptions) of state jurisdiction.” Upstate

Citizens, 841 F.3d at 566 (quoting Chaudhuri, 802 F.3d

at 279-280)); see Mechoopda Indian Tribe of Chico

Rancheria v. Schwarzenegger, 2014 WL 1103021, *7

(E.D. Cal. 2004). The Second Circuit also explained

that lands over which tribal jurisdiction exist “have

historically been referred to as ‘Indian country.’ ”

Chaudhuri, 802 F.3d at 280; see 18 U.S.C. § 1151; accord HRI, Inc. v. EPA, 198 F.3d 1224, 1250 (10th Cir.

2000) (quoting Mustang Prod. Co. v. Harrison, 94 F.3d

1382, 1384 (10th Cir. 1996) (“In order to determine

whether the Tribes have [tribal] jurisdiction [over a

specific plot of land] we must . . . look to whether the

land in question is Indian country.”)12

“ ‘[L]ands held in trust by the United States for the

Tribes are Indian Country within the meaning of

§ 1151(a).’ ” U.S. v. Sohappy, 770 F.2d 816, 822 (9th Cir.

See also Waterwheel Camp Recreational Area, Inc. v.

LaRance, 642 F.3d 802, 809 n.5 (indicating that Indian land

can exist outside of a reservation and citing to a statute involving

Indian country).

App. 50

1985) (quoting Hydro Resources, Inc v. EPA, 608 F.3d

1131); accord State of Ariz. V. EPA, 151 F.3d 1205, 1214

(9th Cir. 1998); HRI, Inc. 198 F.3d at 1254; Citizens

Against Casino Gambling in Erie County v. Hogen,

2008 WL 2746566 at *34 (collecting cases). For purposes of determining whether land is Indian country,

the Supreme Court does not differentiate between

lands taken into trust prior to statehood of the State in

which the lands lie and those lands taken into trust

after. See U.S. v. John, 437 U.S. 634, 649 (1978) (explaining that all doubt was removed that land was

subject to federal criminal jurisdiction when it was declared to be held in trust for a tribe); U.S. v. McGowan,

302 U.S. 535, 537-538 (1938) (finding that land taken

in trust by the United States for an Indian tribe after

Nevada’s induction into the union was Indian country

because it was validly set apart for use of the Indians).

The First Circuit appears to require a lesser showing that the Second Circuit to prove that a tribe has

jurisdiction over land for purposes of IGRA—that a

tribe possesses “that portion of jurisdiction they possess by nature of their sovereign existence as a people.”

Wampanoag Tribe, 853 F.3d at 624. The First Circuit

went on to suggest that a tribe’s possession of any jurisdiction (and a state’s possession of anything short of

exclusive jurisdiction) meets the threshold showing.

Id. at 625 n.5; accord Narragansett, 19 F.3d at 701.

In this Court’s estimation, a logical reading of the

“having jurisdiction over” language is simply that it is

a linkage requirement between the Indian tribe and

the Indian land at issue. In other words, that language

App. 51

is included to ensure that an Indian tribe in California,

for instance, does not seek authorization to conduct

Class III gaming on Indian land under the jurisdiction

of some other tribe in New York. When a tribe possesses Indian lands, that tribe necessarily has jurisdiction over those lands. Such a reading is consistent with

the language of § 2710(d)(3)(A):

Any Indian tribe having jurisdiction over the

Indian lands upon which a class III gaming

activity is being conducted, or is to be conducted, shall request the State in which such

lands are located to enter into negotiations for

the purpose of entering into a Tribal-State

compact governing the conduct of gaming activities. Upon receiving such a request, the

State shall negotiate with the Indian tribe in

good faith to enter into such a compact.

25 U.S.C. § 2710(d)(3)(A). Congress uses linking language to explain that negotiation by a tribe must be

with “the State in which [its Indian] lands are located,”

not some other State. In the same way, Congress explains that the tribe “having jurisdiction over the Indian lands upon which a class III activity . . . is to be

conducted” shall seek to negotiate with a State. That

language is not to suggest some additional jurisdictional requirement but to link the specific tribe to specific Indian lands.13

Other portions of IGRA suggest that any time Indian lands

exist, some tribe has jurisdiction over those lands. See 25 U.S.C.

§ 2710(d)(1)(A)(i) (In order to conduct Class III gaming activities,

those activities must be “authorized by an ordinance . . . that is

App. 52

Regardless of which standard is correct, North

Fork has jurisdiction over the Madera Site. Applying

the Second Circuit’s test from Upstate Citizens, the

land acquired in trust by the United States for the

benefit of North Fork is Indian country, set apart for

the use of the tribe and under federal superintendence.

It is therefore under North Fork’s tribal jurisdiction.

Sohappy, 770 F.2d at 822; Oklahoma Tax Comm’n, 498

U.S. at 511. Applying the First Circuit’s test from Wampanoag Tribe, the Madera Site is under North Fork’s

tribal jurisdiction because the fee-to-trust process

shifted at least some jurisdiction to the tribe. Santa

Rosa, 532 F.2d at 666 n. 17; Chaudhuri, 802 F.3d at

285. Finally, North Fork easily meets the linkage requirement that this Court would impose; North Fork is

the Indian tribe for whom the United States holds the

Madera Site.

C. Exercising Governmental Power

The term “exercising governmental power” is “undefined by IGRA and ‘the case law considering the

phrase is sparse.” Commonwealth v. Wampanoag Tribe

of Gay Head, 144 F.Supp.3d 152, 166 (D. Mass. 2015)

(quoting Miami Tribe of Okla. v. United States, 5

F.Supp.2d 1213, 1217 (D. Kan. 1998)). Indeed, many

circuit courts simply conclude that land is Indian land

when it is held in trust by the United States for the

benefit of a tribe without asking if a tribe exercises

adopted by the governing body of the Indian tribe having jurisdiction over such lands.”)

App. 53

governmental power over that land. Kansas ex rel.

Schmidt v. Zinke, 861 F.3d 1024, 1032 n.3 (10th Cir.

2017) cert. denied 138 S.Ct. 571 (“There is no question

that the Kansas land constitutes ‘Indian land’ because

the land was taken into trust for the Quapaw Tribe in

2012.”); Alabama v. PCI Gaming Authority, 801 F.3d

1278, 1290-1293 (11th Cir. 2015) (concluding that

lands are Indian lands after only finding that they

were taken into trust for the tribe by the Secretary of

the Interior); see Big Lagoon Rancheria, 789 F.3d at

953.14 See also Yankton Sioux Tribe v. Podhradsky, 606

F.3d 994, 1006, 1010-11 (8th Cir.2010) (recognizing

lands taken into trust by the BIA under § 5 of the IRA

are Indian country, and “as a general rule Indian country falls under the primary civil, criminal, and regulatory jurisdiction of the federal government and the

resident Tribe rather than the states”) That understanding seems to match best with the Ninth Circuit

and Supreme Court’s most recent explanations of “Indian land” as defined by § 2703(4)(B). Patchak v. Zinke,

In an unpublished decision, the Ninth Circuit has suggested that Big Lagoon Rancheria stands for the proposition that

a challenge to whether or not land is in fact Indian land can only

be challenged by way of a challenge to the IRA fee-to-trust decision. Jamul Action Committee v. Chaudhuri, 651 Fed.Appx. 689,

690 (9th Cir. 2016) (citing Big Lagoon Rancheria, 789 F.3d at

953); accord Jamul Action Committee v. Chaudhuri, 200

F.Supp.3d 1042, 1051-1052 (E.D. Cal. 2016). That understanding

comports with the Court’s conclusion that taking land into trust

for an Indian tribe renders the land Indian land for purposes of

IGRA. If some showing additional to the fee-to-trust determination was required for land to be Indian land, a challenge to

whether land is Indian land could appropriately take place outside of a challenge to the fee-to-trust determination.

App. 54

___ U.S. ___, 138 S.Ct. 879, 903 n.1 (2018) (“Federal law

allows Indian tribes to operate casinos on ‘Indian

lands,’ 25 U.S.C. § 2710, which includes lands ‘held in

trust by the United States for the benefit of any Indian

tribe,’ ” § 2703(4)(B).”); Arizona v. Tohono O’odham Nation, 818 F.3d 549, 554 n.2 (9th Cir. 2016) (Albeit in a

slightly different context, the Ninth Circuit explained

that “Section 2703(4) defines ‘Indian lands’ as ‘all lands

within the limits of any Indian reservation; and any

lands title to which is . . . held in trust by the United

States for the benefit of any Indian tribe.’ ”) Neither the

Supreme Court nor the Ninth Circuit found the “exercise of governmental power” clause analytically significant enough to merit mention. On that basis, the

Court holds that the Madera Site is Indian land because it is in trust for North Fork.

That said, the other circuit courts suggests a need

for actual use of the jurisdictional authority over the

land; some showing of “concrete manifestations of that

authority.” Wampanoag Tribe, 853 F.3d at 625 (quoting

State of Rhode Island v. Narragansett Indian Tribe, 19

F.3d 685, 703 (1st Cir. 1994)). In Wampanoag Tribe, the

First Circuit explained that the tribe need not have

achieved “full-fledged self-governance, but merely

movement in that direction . . . to evince that the Tribe

exercises . . . enough governmental power to satisfy”

that requirement. 853 F.3d at 625-626. Any doubt in

resolving whether a tribe exercises sufficient governmental power is “to be resolved in favor of Indians.” Id.

at 826 (quoting, inter alia, Rosebud Sioux Tribe v.

Kneip, 430 U.S. 584, 586-587 (1977)).

App. 55

The Second Circuit in Wampanoag Tribe and in

Narragansett had no problem determining that the

Tribes exercised governmental power. The Wampanoag

Tribe “established a housing program,” “entered into

an intergovernmental agreement with the EPA,” “operat[ed] a health care clinic,” offered social services and

public safety services, passed ordinances, and employed a judge. Wampanoag Tribe, 853 F.3d at 626. The

Narragansett Tribe had “established a housing authority,” had government-to-government relations with the

EPA, and took “advantage of the Indian Self-Determination and Education Assistance Act.” Narragansett,

19 F.3d at 703. See also Chaudhuri, 802 F.3d at 286

(noting in dicta that a tribe exercised governmental

power over land where it policed, fenced, posted signs

on, and enacted ordinances relating to that land).

Even assuming the First and Second Circuits are

correct, there is sufficient evidence in the administrative record such that it was not arbitrary or capricious

for the Secretary to conclude that North Fork exercised

governmental power over the Madera Site.

In this case, the Secretary was procedurally in a

different position than in Wampanoag Tribe and Narragansett. Here, a determination had already been

made that the Madera Site is Indian land. In North

Fork v. California, 2015 WL 11438206 at *8, where this

Court resolved cross motions for judgment on the

pleadings between North Fork and California, the

Court made clear that “it [was] undisputed [between

California and North Fork] that . . . the Madera [Site

is] gaming-eligible Indian land[ ] within the meaning

App. 56

of 25 U.S.C. § 2703(4) and 2719(b)(1)(A).” Accord North

Fork v. California, 2016 WL 4208452 (E.D. Cal. Aug. 10,

2016). Indeed, that order was considered by the courtappointed mediator in selecting a proposed compact

which, in turn, was considered by the Secretary in prescribing the gaming procedures at issue in this action.

That decision is part of the administrative record upon

which the Secretary was permitted to rely.

Next, even assuming the Secretary was required

to delve beyond the Court’s determination, the evidence available to the Secretary in the time before the

Secretarial Procedures were issued indicated that

North Fork had enacted an ordinance with respect the

Madera Site. Miskinis Decl., Doc. 37-2 at 4-6.15 If the

Court remanded the action to the Secretary for consideration of whether North Fork exercised governmental

power over the Madera Site, the Secretary could only

conclude that North Fork exercised governmental

power over that site by legislating with respect to it.

D. Consistency with California Law

At the final stage of the remedial process, the

Secretary must prescribe gaming procedures “which

are consistent with the proposed compact selected by

the mediator . . . , the provisions of [IGRA], and the

The Court takes judicial notice of North Fork’s Tribal Ordinance, designated Resolution No. 15-58, enacted on October 16,

2015. North County Community Alliance, Inc. v. Salazar, 573

F.3d 738, 746 (9th Cir. 2009) (taking judicial notice of a tribal

ordinance.)

App. 57

relevant provisions of the laws of the State.” 25 U.S.C.

§ 2710(d)(7)(B)(vii)(II). Plaintiffs argue in their motion (and abandon the argument in their reply) that

the Secretarial Procedures are inconsistent with California law because no Compact exists governing

Class III gaming. Plaintiffs are mistaken.

As a preliminary matter, Secretarial Procedures

cannot be issued if a valid compact governing Class III

gaming on an Indian tribe’s Indian lands exists. See 25

U.S.C. §§ 2710(d)(3)(A), 2710(d)(7)(B)(vi-vii). To be

clear, it is Plaintiffs’ position that Secretarial Procedures, if issued to permit an Indian tribe in California

to conduct Class III gaming, will always violate IGRA.

For that proposition, Plaintiffs direct the Court to Article IV, sections 19(e) and 19(f ) of the California Constitution which, collectively, preclude Nevada style

gaming except by Indian tribes conducting such gaming pursuant to tribal-state compacts. Cal. Const., art.

IV, § 19(e-f ). Plaintiffs reason that Secretarial Procedures are not a compact and therefore gaming at the

Madera Site under such procedures is inconsistent

with the California Constitution. Plaintiffs cite no case

authority for this proposition and it is undercut by the

California Supreme Court’s decision in Hotel Employees and Restaurant Employees Intern. Union v. Davis,

21 Cal.4th 585 (1999). In Hotel Employees the California Supreme Court addressed, inter alia, California’s

statutory wavier of immunity enacted in response to

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).16

In Seminole Tribe, the Supreme Court held that that in

authorizing Indian tribes to sue the state pursuant to IGRA,

App. 58

Hotel Employees, 21 Cal.4th at 1010-1011. That waiver

of immunity reads, in relevant part, as follows:

[T]he State of California . . . submits to the jurisdiction of the courts of the United States in

any action brought against the state by any

federally recognized California Indian tribe

asserting any cause of action arising from the

state’s refusal to enter into negotiations with

that tribe for the purpose of entering into a

different Tribal-State compact pursuant to

IGRA or to conduct those negotiations in good

faith, the state’s refusal to enter into negotiations concerning the amendment of a TribalState compact to which the state is a party, or

to negotiate in good faith concerning that

amendment, or the state’s violation of the

terms of any Tribal-State compact to which

the state is or may become a party.

Cal. Gov’t Code § 98005. The Hotel Employees court explained that the waiver of immunity was designed to

give effect to IGRA’s remedial framework, 25 U.S.C.

§ 2710(d)(7). Hotel Employees, 21 Cal.4th at 615 (“The

[above-quoted portion] of section 98005, in providing

the state’s consent to such a suit, is obviously intended

to restore to California tribes the remedy provided in

IGRA.”) The issuance of Secretarial Procedures is the

part of the remedial process that gives it teeth. If

gaming pursuant to Secretarial Procedures was not

Congress impermissibly sought to abrogate Eleventh Amendment

immunity. 517 U.S. at 47. In order to avoid offending the Eleventh

Amendment, a State must explicitly consent to suit. Id.

App. 59

contemplated, the purpose of the remedial process—

restoring leverage to tribes to sue recalcitrant states

and thereby force them into a compact—would be

wholly eroded. U.S. v. Spokane Tribe of Indians, 139

F.3d 1297, 1299-1300 (9th Cir. 1998). The State of California did not waive jurisdiction so a tribe could bring

a claim without a remedy.

Moreover, there is good reason to treat Secretarial

Procedures issued pursuant to § 2710(d)(7)(A)(vii) as

equivalent to a Tribal-State compact for purposes of

IGRA and therefore also for purposes of the relevant

portions of California law designed to mirror IGRA.

Section 2710(d)(1) makes clear that “[c]lass III gaming

activities shall be lawful on Indian lands only if such

activities are,” among other things, “conducted in conformance with a Tribal-State compact entered into by

the Indian tribe and the State under paragraph (3)

that is in effect.” If Secretarial Procedures prescribed

pursuant to section 2710(d)(7)(A)(vii) are not treated

as equivalent to a Tribal-State compact for purposes of

IGRA, then the remedial process would be meaningless. Secretarial Procedures could never be issued because Secretarial Procedures—necessarily issued in

the absence of a compact that is in effect—would always be “[in]consistent with . . . the provisions of

[IGRA]. . . .” 25 U.S.C. § 2710(d)(7)(B)(vii)(I). The Court

will not read IGRA to have created (or the State of

California to have waived immunity as to) an empty

remedial process. Such an outcome must be rejected.

App. 60

E. Conclusion

The Secretary’s issuance of Secretarial Procedures

was not arbitrary, capricious, or otherwise not in accordance with law for any of the reasons identified by

Plaintiffs. Again, the Court does not address the alleged unconstitutionality of the jurisdictional shift

caused by the fee-to-trust determination as that determination is not properly before this Court, as described

above.

III.

Order

Based on the foregoing, IT IS HEREBY ORDERED that the Plaintiffs’ motion for summary judgment is DENIED and the Federal Defendants’ motion

for summary judgment is GRANTED.

The Clerk of the Court is respectfully directed to enter

judgment and close this case.

IT IS SO ORDERED.

Dated: July 13, 2018

/s/ Anthony W. Ishii

SENIOR DISTRICT JUDGE

App. 61

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CLUB ONE CASINO, INC.,

ET AL.,

SALLY M. JEWELL, ET AL.,

JUDGMENT IN

A CIVIL CASE

CASE NO:

1:16−CV−01908−

AWI−EPG

XX −− Decision by the Court. This action came to

trial or hearing before the Court. The issues have

been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT IS HEREBY ENTERED IN ACCORDANCE WITH THE

COURT’S ORDER FILED ON 7/13/18

Marianne Matherly

Clerk of Court

ENTERED:

July 13, 2018

by: /s/ S. Martin−Gill

Deputy Clerk

App. 62

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 18-16696

CLUB ONE CASINO, INC.,

DBA Club One Casino; GLCR, D.C. No.

INC., DBA The Deuce Lounge 1:16-cv-01908 -AWIand Casino,

EPG Eastern District

Plaintiffs-Appellants,

of California, Fresno

ORDER

DAVID BERNHARDT;

(Filed Aug. 3, 2020)

MIKE BLACK, Acting Assistant

Secretary of the Interior Indian Affairs; U.S. DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.

Before: COLE,* GOULD, and MURGUIA, Circuit

Judges.

The panel has voted to deny the petition for panel

rehearing. Judges Gould and Murguia voted to deny

the petition for rehearing en banc, and Judge Cole recommended denying the petition for rehearing en banc.

The full court has been advised of the petition for

rehearing and rehearing en banc and no judge has

* The Honorable R. Guy Cole, Jr., United States Chief Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

App. 63

requested a vote on whether to rehear the matter en

banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition

for rehearing en banc are DENIED (Doc. 50).

App. 64

[LOGO] United States Department of the Interior

OFFICE OF THE SECRETARY

Washington, DC 20240

JUL 29 2016

The Honorable Maryann McGovran

Chairwoman, North Fork Rancheria

of Mono Indians of California

P.O. Box 929

North Fork, California 93643

Dear Chairwoman McGovran:

On April 28, 2016, the Department of the Interior (Department) received a letter, order, and proposed compact from the court-appointed mediator (Mediator) in

North Fork Rancheria of Mono Indians of California v.

California 1:15-cv-00419-AWJ-SAB (E.D. Cal. 2015)

that initiated the process for the Department’s issuance of Class III gaming procedures consistent with 25

U.S.C. § 2710(d)(7)(B)(vii). The Mediator took this action because the State of California (State) failed to

consent to a mediator-selected compact under the process set forth in the Indian. Gaming Regulatory Act

(IGRA).1 After more than 90 days of review by the Department of the Mediator’s submission, I am issuing

the enclosed procedures under which the North Fork

25 U.S.C. §2710(d)(7)(B). This is not the first time that a

court-appointed mediator has taken such action because the State

failed to negotiate a compact in good faith. In 2013, the Department issued procedures governing Class III gaming by the Rincon

Band of Luiseno Indians.

App. 65

Rancheria of Mono Indians (Tribe) may conduct Class

III gaming consistent with IGRA.

It is important to note that the issuance of these procedures is the result of the State’s actions after a State

referendum overturned the legislative ratification of

the Tribe’s 2012 Compact. First, the State failed to negotiate a Class III compact in good faith. A Federal

court expressly found that the State violated IGRA requirement for states to negotiate a compact in good

faith. Second, the State further refused to consent to a

compact selected by the Mediator. The State’s consistent failure to comply with the law triggered the

Secretary of the Interior’s (Secretary) duty under

IGRA to prescribe Class III gaming procedures.3

The Secretary’s duty to issue procedures is one of

IGRA’s fundamental safeguards of tribal sovereignty.

In IGRA, Congress expressly reaffirmed that tribes

maintain their pre-existing sovereign reserved right to

conduct gaming. This reserved tribal right, confirmed

by the Supreme Court in Cabazon,4 endures throughout IGRA’s framework. While Congress provided states

a limited role to negotiate a tribal-state compact governing Class III gaming activities, Congress did not

eviscerate tribal sovereignty. Recognizing the underlying tribal reserved right, Congress expressly provided

that, when a state does not negotiate a tribal-state

compact in good faith and does not agree with a

25 U.S.C. § 2710(d)(7)(B)(vii).

California v. Cabazon Band of Mission Indians, 480 U.S.

202 (1987).

App. 66

Federal court-appointed mediator’s compact, tribes retain the sovereign right to conduct Class III gaming

pursuant to Federal procedures issued by the Secretary.5 The Department’s action here upholds that tribal

sovereign right.

Under IGRA, states are required to negotiate gaming

compacts “in good faith” with tribes and address issues

that are specific to each individual tribe. Tribes may

enforce this good faith obligation by filing suit in Federal court6.

In 2012, the Governor and the Tribe executed a compact (2012 Compact) governing Class III gaming. On

May 2, 2013, the California Legislature passed AB 277,

which ratified the 2012 Compact.7 In compliance with

the requirements of 25 C.F.R. Part 293, the California

Secretary of State submitted the 2012 Compact to the

Secretary for review and approval. On October 22,

2013, the Assistant Secretary – Indian Affairs published notice in the Federal Register that the 2012

Compact between the State and the Tribe was approved and in effect to the extent that it was consistent

with IGRA.8

In a November 4, 2014 referendum, California voters

opted to overturn AB277, the legislative ratification of

the 2012 Compact. Following the 2014 referendum, the

25 U.S.C. § 2710 (d); see also 25 C.F.R. Part 291.

25 U.S.C. § 2710(d)(7)(A).

Cal. Govt. Code § 12012.59.

Notice of Tribal-State Class III Gaming Compact taking effect, 78 Fed. Reg. 62649 (Oct. 22, 2013).

App. 67

State refused to recognize the validity of the 2012

Compact or to enter into further negotiations with the

Tribe for a new Tribal-State compact.

The Tribe filed suit in Federal district court challenging the State’s refusal to negotiate. The State raised

several defenses, including sovereign immunity. On

November 13, 2015, the Federal District Court for the

Eastern District of California held that the State failed

to negotiate in good faith with the Tribe after the 2014

referendum. The Court ordered the State and Tribe to

reach an agreement within 60 days.9

The parties failed to reach an agreement within 60

days, and the Court appointed a mediator, as required

by IGRA. The Tribe and State subsequently each submitted a respective “last best offer” proposed compact

to the Mediator. The Mediator determined that the

Tribe’s proposed compact best comported with the

terms of IGRA, any other applicable Federal law, and

the findings and order of the Court.10 The Mediator notified the Tribe and State of her selection and gave the

State 60 days to consent to the compact. The State

failed to consent to the Mediator’s selected compact

and, as noted above, the Mediator submitted her selection to us on April 28, 2016.

We note the Mediator’s selected compact contemplated

that, in addition to the North Fork Tribal Gaming

Commission’s role as a regulator of the Tribe’s gaming

25 U.S.C. § 2710(d)(7)(B)(iii).

25 U.S.C. § 2710 (d)(7)(B)(iv).

App. 68

activities, the State would also have regulatory responsibilities largely consistent with the State’s regulatory

role in Class III gaming under numerous existing compacts with tribes in the State. Since the State did not

consent to the selected compact within the 60 day period set forth in IGRA, the State may not be willing to

fulfill such regulatory responsibilities. Accordingly,

Section 8.2 provides a 60 day “opt-in” period for the

State to provide written notice that it agrees to perform the State Gaming Agency’s regulatory responsibilities set forth in the procedures. If the State does not

opt-in, the National Indian Gaming Commission has

agreed to perform such responsibilities pursuant to a

Memorandum of Understanding with the Tribe.

The IGRA requires the Secretary to prescribe procedures after receiving notice that a state has not consented to a mediator’s selected compact. After

government-to-government consultations with the

Tribe, the procedures are to be consistent with a mediator’s selected compact, IGRA, and the relevant provisions of state law.11 We find that the procedures meet

those requirements. We note, however, that the procedures we issue today do not draw bright lines for future

compacts. Through this process, we have purposely refrained from changing regulatory provisions in deference to the Mediator’s submission to the Department

and the Tribe’s specific request that we change that

submission as little as possible. In many respects, we

understand that the Mediator’s submission to the

25 U.S.C. § 2710 (d)(7)(B)(vii).

App. 69

Department reflects compromises the Tribe agreed to

make rather than compromises that the Tribe was required to make under IGRA.

Finally, we note that this action to issue procedures is

separate from the Departmental decision made years

ago requesting the Governor’s concurrence to allow

gaming on the subject parcel as well as the subsequent

decision made in 2012 to accept that parcel into

trust.

By this letter we hereby notify the Tribe and the State

that the attached Secretarial Procedures for the conduct of Class III gaming on the Tribe’s Indian lands are

prescribed and in effect.

Sincerely,

/s/ Lawrence S. Roberts

Lawrence S. Roberts

Acting Assistant Secretary –

Indian Affairs

cc: Governor of California

National Indian Gaming Commission

Enclosure

App. 70

SECRETARIAL PROCEDURES

FOR THE

NORTH FORK RANCHERIA

MONO INDIANS

TABLE OF CONTENTS

PREAMBLE

Sec. 1.0.

Purpose and Objectives.

Sec. 2.0.

Definitions.

Sec. 3.0.

Scope of Class III Gaming Authorized.

Sec. 3.1.

Authorized Class III Gaming.

Sec. 4.0.

Authorized Location of Gaming Facility,

Number of Gaming Devices, Cost Reimbursement, and Mitigation.

Sec. 4.1.

Authorized Number of Gaming Devices. 12

Sec. 4.2.

Authorized Gaming Facility.

Sec. 4.3.

Special Distribution Fund.

Sec. 4.3.1. Use of Special Distribution Funds.

Sec. 4.4.

Quarterly Payments and Quarterly

Contribution Report.

Sec. 4.5.

Exclusivity.

Sec. 5.0.

Revenue Sharing With Non-Gaming and

Limited-Gaming Tribes.

Sec. 5.1.

Definitions.

App. 71

Sec. 5.2.

Payments to the Revenue Sharing Trust

Fund or the Tribal Nation Grant Fund. 21

Sec. 6.0.

Licensing.

Sec. 6.1.

Gaming Ordinance and Regulations.

Sec. 6.2.

Tribal Ownership, Management, and Control of Gaming Operation.

Sec. 6.3.

Prohibitions Regarding Minors.

Sec. 6.4.

Licensing Requirements and Procedures.

Sec. 6.4.1. Summary of Licensing Principles.

Sec. 6.4.2. Gaming Facility.

Sec. 6.4.3. Gaming Employees.

Sec. 6.4.4. Gaming Resource Suppliers.

Sec. 6.4.5. Financial Sources.

Sec. 6.4.6. Processing Tribal Gaming License

Applications.

Sec. 6.4.7. Suitability Standard Regarding

Gaming Licenses.

Sec. 6.4.8. Background Investigations of Applicants.

Sec. 6.4.9. Temporary Licensing of Gaming

Employees.

Sec. 6.5.0. Tribal Gaming License Issuance.

Sec. 6.5.1. Denial, Suspension, or Revocation of

Licenses.

Sec. 6.5.2. Renewal of Licenses; Extensions;

Further Investigation.

App. 72

Sec. 6.5.3. Identification Cards.

Sec. 6.5.4. Fees for Tribal Gaming License.

Sec. 6.5.5. Suspension of Tribal Gaming License.

Sec. 6.5.6. State Determination of Suitability

Process.

Sec. 6.6.

Submission of New Application.

Sec. 7.0.

Approval and Testing of Gaming

Devices.

Sec. 7.1.

Gaming Device Approval.

Sec. 7.2.

Gaming Test Laboratory Selection.

Sec. 7.3.

Maintenance of Records of Testing

Compliance.

Sec. 7.4.

State Gaming Agency Inspections.

Sec. 7.5.

Technical Standards.

Sec. 7.6.

Transportation of Gaming Devices.

Sec. 8.0.

Inspections.

Sec. 8.1.

Investigation and Sanctions.

Sec. 8.2.

Assistance by State Gaming Agency.

Sec. 8.3.

Access to Premises by State Gaming

Agency; Notification; Inspections.

Inspection, Copying and Confidentiality

of Documents.

Sec. 8.5.

NIGC Audit Reports.

Sec. 8.6.

Cooperation with Tribal Gaming

Agency.

Secretarial Procedures Compliance

Review.

Sec. 8.4.

Sec. 8.7.

App. 73

Sec. 9.0.

Rules and Regulations for the Operation

and Management of the Gaming

Operation and Facility.

Sec. 9.1.

Adoption of Regulations for Operation

and Management; Minimum Standards.

Sec. 9.1.1. Minimum Internal Control Standards

(MICS).

Sec. 9.2.

Program to Mitigate Problem Gambling.

Sec. 9.3.

Enforcement of Regulations.

Sec. 9.4.

State Civil and Criminal Jurisdiction.

Sec. 9.5.

Tribal Gaming Agency Members.

Sec. 9.6.

Uniform Tribal Gaming Regulations.

Sec. 10.0. Patron Disputes.

Sec. 11.0. Off-Reservation Environmental and

Economic Impacts.

Sec. 11.1. Tribal Environmental Impact Report.

Sec. 11.2. Notice of Preparation of Draft TEIR.

Sec. 11.3. Notice of Completion of Draft TEIR.

Sec. 11.4. Issuance of Final TEIR.

Sec. 11.5. Cost Reimbursement to County.

Sec. 11.6. Failure to Prepare Adequate TEIR.

Sec. 11.7. Intergovernmental Agreement.

Sec. 11.8. Arbitration.

Sec. 11.9. State Designated Agency Review.

Sec. 12.0. Public and Workplace Health, Safety,

and Liability.

Sec. 12.1. General Requirements.

App. 74

Sec. 12.2. Tobacco Smoke.

Sec. 12.3. Health and Safety Standards.

Sec. 12.4. Tribal Gaming Facility Standards

Ordinance.

Sec. 12.5. Insurance Coverage and Claims.

Sec. 12.6. Participation in State Programs

Related to Employment.

Sec. 12.7. Emergency Services Accessibility.

Sec. 12.8. Alcoholic Beverage Service.

Sec. 12.9. Possession of Firearms.

Sec. 12.10. Labor Relations.

Sec. 13.0. Dispute Resolution Provisions.

Sec. 13.1. Voluntary Resolution; Court Resolution.

Sec. 13.2. Arbitration Rules for the Tribe and the

State

Sec. 13.3. No Waiver or Preclusion of Other

Means of Dispute Resolution.

Sec. 13.4. Limited Waiver of Sovereign Immunity. 98

Sec. 14.0. Effective Date and Term of Secretarial

Procedures

Sec. 14.1. Effective Date.

Sec. 14.2. Term of Secretarial Procedures;

Termination.

Sec. 15.0. Amendments; Renegotiations.

100

Sec. 15.1. Amendment by Agreement.

100

Sec. 15.2. Negotiations for a New Secretarial

Procedures.

100

App. 75

Sec. 15.3

Requests to Negotiate a New Compact. 100

Sec. 16.0. Notices.

101

Sec. 17.0. Changes to IGRA.

101

Sec. 18.0. Miscellaneous.

101

Sec. 18.1. Third Party Beneficiaries.

101

Sec. 18.2. Complete Agreement.

101

Sec. 18.3. Construction.

102

Sec. 18.4. Successor Provisions.

102

Sec. 18.5. Ordinances and Regulations.

102

Sec. 18.6. Calculation of Time.

102

Sec. 18.7. Representations.

102

APPENDICES

Description and Map of the Madera

Parcel

A-1

Off-Reservation Environmental Impact

Analysis Checklist

B-1

Tribal Labor Relations Ordinance

C-1

[1] CLASS III GAMING PROCEDURES

FOR THE NORTH FORK RANCHERIA

OF MONO INDIANS

PREAMBLE

In 1988, Congress enacted the Indian Gaming

Regulatory Act of 1988 (P. L. 100-497, codified at 25

U.S.C. Sec. 2701-2721,) (hereafter “IGRA”) as the federal statute governing Indian gaming in the United

App. 76

States. The purposes of IGRA are to provide 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; to provide a statutory basis for regulation of Indian gaming

adequate to shield it from organized crime and other

corrupting influences; to ensure that the Indian tribe

is the primary beneficiary of the gaming operation; to

ensure that gaming is conducted fairly and honestly by

both the operator and players; and to declare that the

establishment of an independent federal regulatory

authority for gaming on Indian lands, federal standards for gaming on Indian lands, and a National Indian

Gaming Commission are necessary to meet congressional concerns.

The system of regulation of Indian gaming fashioned by Congress in IGRA rests on an allocation of

regulatory jurisdiction among the three sovereigns involved: the federal government, the state in which a

tribe has land, and the tribe itself IGRA makes Class

III gaming activities lawful on the lands of federallyrecognized Indian tribes only if such activities are: (1)

authorized by a tribal ordinance, (2) located in a state

that permits such gaming for any purpose by any person, organization or entity, and (3) conducted in conformity with a gaming compact entered into between

the Indian tribe and the state and approved by the Secretary of the Interior or, alternatively, in conformity

with Class III gaming procedures issued by the Secretary pursuant to the remedial provisions of IGRA, 25

U.S.C. Sec. 2710 (d)(7).

App. 77

The Secretary, as requested by the mediator appointed by the United States District Court for the

Eastern District of California in North Fork Rancheria

of Mono Indians v. California, Case No. 1:15-cv-00419AWI-SAB, and as mandated by IGRA, 25 U.S.C. § 2710

(d)(7)(B)(vii), and in consultation with the North Fork

Rancheria of Mono Indians of California (“Tribe”), a

federally recognized Indian tribe, hereby promulgates

these Class III gaming Secretarial Procedures (“Secretarial Procedures”).

[2] SECTION 1.0. PURPOSES AND OBJECTIVES.

The terms of these Secretarial Procedures are designed and intended to:

(a) Enhance and implement a means of regulating Class III Gaming to ensure its fair and

honest operation in a way that protects the interests of the Tribe, the State, its citizens, and

local communities in accordance with IGRA,

and through that regulated Class III Gaming,

enable the Tribe to develop self-sufficiency,

promote tribal economic development, and

generate jobs and revenues to support the

Tribe’s government and its governmental services and programs.

(b) Promote ethical practices in conjunction with

Class III Gaming, through the licensing and

control of persons and entities employed in, or

providing goods and services to, the Gaming

Operation, protect against the presence or

participation of persons whose criminal

App. 78

backgrounds, reputations, character, or associations make them unsuitable for participation in gaming, thereby maintaining a high

level of integrity in tribal government gaming,

and protect the patrons and employees of the

Gaming Operation and the local communities.

SECTION 2.0. DEFINITIONS.

Sec. 2.1. “Applicable Codes” means the California

Building Code and the California Public Safety Code

applicable to the County, as set forth in titles 19 and

24 of the California Code of Regulations, as those regulations may be amended during the term of these Secretarial Procedures, including, but not limited to, codes

for building, electrical, energy, mechanical, plumbing,

fire and safety. Nothing in this Section 2.1 shall be interpreted to grant the State of California (State) or any

of its political subdivisions, their agents, employees, or

assigns, any authority to enforce the California Code

of Regulations on the Indian lands of the Tribe. Additionally, nothing in this section shall be interpreted as

waiver of the Tribe’s sovereign immunity as to the

State or any other person, organization, or entity, for

purposes of any claims whatsoever against the Tribe.

[3] Sec. 2.2. “Applicant” means an individual or

entity that applies for a tribal gaming license or for a

State Gaming Agency determination of suitability.

App. 79

Sec. 2.3. “Association” means an association of

California tribal and state gaming regulators, the

membership of which comprises up to two (2) representatives from each tribal gaming agency of those

tribes with whom the State has a gaming compact under IGRA, and up to two (2) delegates each from the

state Department of Justice, Bureau of Gambling Control and the California Gambling Control Commission.

Sec. 2.4. “Class III Gaming” means the forms of

class III gaming defined as such in 25 U.S.C. § 2703(8)

and by regulations of the National Indian Gaming

Commission.

Sec. 2.5. “Commission” means the California

Gambling Control Commission, or any successor

agency of the State.

Sec. 2.6. “County” means the County of Madera,

California, a political subdivision of the State.

Sec. 2.7. “County MOU” means the Memorandum

of Understanding entered into between the Tribe and

the County on August 16, 2004.

Sec. 2.8. “Financial Source” means any person or

entity who, directly or indirectly, extends financing to

the Gaming Facility or Gaming Operation.

Sec. 2.9. “Gaming Activity” or “Gaming Activities”

means the Class III Gaming activities authorized under these procedures.

Sec. 2.10. “Gaming Device” means any slot machine within the meaning of article IV, section 19,

App. 80

subdivision (f ) of the California Constitution. For purposes of calculating the number of Gaming Devices,

each player station or terminal on which a game is

played constitutes a separate Gaming Device, irrespective of whether it is part of an interconnected system

to such terminals or stations. “Gaming Device” includes, but is not limited to, video poker, but does not

include electronic, computer, or other technological

aids that qualify as class II gaming (as defined under

IGRA).

[4] Sec. 2.11. “Gaming Employee” means any natural person who (a) conducts, operates, maintains, repairs, accounts for, or assists in any Gaming Activities,

or is in any way responsible for supervising such Gaming Activities or persons who conduct, operate, maintain, repair, account for, assist, or supervise any such

Gaming Activities, (b) is in a category under federal or

tribal gaming law requiring licensing, (c) is an employee of the Tribal Gaming Agency with access to confidential information, or (d) is a person whose

employment duties require or authorize access to areas of the Gaming Facility in which any activities related to Gaming Activities are conducted but that are

not open to the public.

Sec. 2.12. “Gaming Facility” or “Facility” means

any building in which Gaming Activities or any Gaming Operations occur, or in which the equipment, Gaming Devices, business records, receipts, or funds of the

Gaming Operation are maintained (excluding offsite

facilities primarily dedicated to storage of those records and financial institutions),.Nothing herein shall

App. 81

be construed in a manner that (a) does not directly relate to the operation of Gaming Activities or (b) prevents the conduct of class II gaming (as defined under

IGRA) therein.

Sec. 2.13. “Gaming Operation” means the business enterprise that offers and operates Gaming Activities, whether exclusively or otherwise.

Sec. 2.14. “Gaming Ordinance” means a tribal ordinance or resolution duly authorizing the conduct of

Gaming Activities on the Tribe’s Indian lands in California and approved under IGRA.

Sec. 2.15. “Gaming Resources” means any goods

or services provided or used in connection with Gaming Activities, whether exclusively or otherwise, including, but not limited to, equipment, furniture,

Gaming Devices and ancillary equipment, implements

of Gaming Activities such as playing cards, furniture

designed primarily for Gaming Activities, maintenance or security equipment and services, and Class

III Gaming consulting services. “Gaming Resources”

does not include professional accounting and legal services.

Sec. 2.16. “Gaming Resource Supplier” means any

person or entity who, directly or indirectly, does, or is

deemed likely to, manufacture, distribute, supply,

vend, lease, purvey, or otherwise provide, to the Gaming Operation or Gaming Facility at least twenty-five

thousand dollars ($25,000) in Gaming Resources in

any twelve (12)-month period, or who, directly or indirectly, receives, or is deemed likely to receive, in

App. 82

connection with the Gaming Operation or Gaming Facility, at least twenty-five thousand dollars ($25,000) in

any consecutive twelve (12)-month [5] period, provided

that the Tribal Gaming Agency may exclude a purveyor of equipment or furniture that is not specifically

designed for, and is distributed generally for use other

than in connection with, Gaming Activities, if, but for

the purveyance, the purveyor is not otherwise a Gaming Resource Supplier as described herein, the compensation received by the purveyor is not grossly

disproportionate to the value of the goods or services

provided, and the purveyor is not otherwise a person

who exercises a significant influence over the Gaming

Operation.

Sec. 2.17. “Gross Gaming Revenue” means the

win from Gaming Activities, which is the difference between gaming wins and losses before deducting costs

and expenses or deducting incentives or adjusting for

changes in progressive jackpot liability accruals. Generally, the difference between patron wagers and the

payouts made on winning wagers.

Sec. 2.18. “IGRA” means the Indian Gaming Regulatory Act of 1988 (P. L. 100-497, codified at 25 U.S.C.

Sec. 2701-2721), and any amendments thereto, as interpreted by all regulations promulgated thereunder.

Sec. 2.19. “Interested Persons” means (a) all local,

state, and federal agencies, which, if a Project were not

taking place on Indian lands, would have responsibility for approving the Project or would exercise authority over the natural resources that may be affected by

App. 83

the Project, (b) any incorporated city in Madera

County, and (c) persons, groups, or agencies that request in writing a notice of preparation of a draft tribal

environmental impact report described in section 11.0,

or have commented on the Project in writing to the

Tribe or the County.

Sec. 2.20. “Madera Parcel” means the approximately three hundred five (305) acres of Indian lands

held in trust by the United States government for the

Tribe in Madera County, California, as legally described in the Federal Register notice (77 Fed. Reg.

71611-12 (Dec. 3, 2012)) and represented on the map

at Appendix A hereto.

Sec. 2.21. “Management Contractor” means any

Gaming Resource Supplier with whom the Tribe has

contracted for the management of any Gaming Activity

or Gaming Facility, including, but not limited to, any

person who would be regarded as a management contractor under IGRA.

Sec. 2.22. “NIGC” means the National Indian

Gaming Commission.

[6] Sec. 2.23. “Preferred Alternative” means the

construction of the Tribe’s initial Gaming Facility,

whether constructed singularly or in phases, identified

as Alternative A in the final environmental impact

statement prepared by the Bureau of Indian Affairs of

the United States Department of the Interior pursuant

to the National Environmental Policy Act of 1969 for

the acquisition of 305.49 acres of land located in

Madera County, California, in trust for the Tribe for a

App. 84

casino and hotel project, noticed on August 6, 2010 (75

Fed. Reg. 47621-22), together with Attachment II to the

Record of Decision approving the proposed action on

November 26, 2012, and noticed on December 3, 2012

(77 Fed. Reg. 71611-12).

Sec. 2.24. “Procedures” means these Secretarial

Class III Gaming Procedures.

Sec. 2.25. “Project” means any activity on the reservation directly related to the operation of Gaming

Activities or the Gaming Operation that may cause a

Significant Effect on the Off-Reservation Environment, including (a) the construction of a new Gaming

Facility, or (b) the renovation, expansion or modification of an existing Gaming Facility. For purposes of this

definition, section 11.0, and Appendix B, “reservation”

refers to the Madera Parcel.

Sec. 2.26. “Significant Effect(s) on the Off-Reservation Environment” is the same as “Significant Effect(s) on the Environment” and occur(s) if any of the

following conditions exist:

(a) A proposed Project has the potential to degrade the quality of the off-reservation environment, curtail the range of the environment, or

achieve short-term, to the disadvantage of

long-term, environmental goals.

(b) The possible effects of a Project on the offreservation environment are individually limited but cumulatively considerable. As used

herein, “cumulatively considerable” means

that the incremental effects of an individual

App. 85

Project are considerable when viewed in connection with the effects of past projects, the

effects of other current projects, and the effects of probable future projects.

Project will cause substantial adverse effects

on human beings, either directly or indirectly.

[7] For purposes of this definition, “reservation” refers

to the Madera Parcel.

Sec. 2.27. “State” means the State of California or

an authorized official or agency thereof designated by

these Secretarial Procedures or by the Governor.

Sec. 2.28. “State Gaming Agency” means the entities authorized to investigate, approve, regulate and license gaming pursuant to the Gambling Control Act

(California Business and Professions Code, division 8,

chapter 5 (section 19800 et seq.), or any successor statutory scheme, and any entity or entities in which that

authority may hereafter be vested.

Sec. 2.29. “State Designated Agency” means the

entity or entities designated or to be designated by the

Governor to exercise rights and fulfill responsibilities

established by these Secretarial Procedures, but only

if the State agrees to do so under the provisions of Section 8.2, below.

Sec. 2.30. “Tribe” means the North Fork Rancheria

of Mono Indians, a federally recognized Indian tribe

listed in the Federal Register as the Northfork

App. 86

Rancheria of Mono Indians of California, or an authorized official or agency thereof.

Sec. 2.31. “Tribal Chair” or “Tribal Chairperson”

means the person duly elected or selected under the

Tribe’s constitution or governing documents to perform the duties specified therein, including serving as

the Tribe’s official representative.

Sec. 2.32. “Tribal Gaming Agency” means the person, agency, board, committee, commission, or council

designated under tribal law, including, but not limited

to, an intertribal gaming regulatory agency approved

to fulfill those functions by the NIGC, primarily responsible for carrying out the Tribe’s regulatory responsibilities under IGRA and the Tribe’s Gaming

Ordinance. No person employed in, or in connection

with, the management, supervision, or conduct of any

Gaming Activity may be a member or employee of the

Tribal Gaming Agency.

SECTION 3.0. SCOPE OF CLASS III GAMING

AUTHORIZED.

Sec. 3.1. Authorized Class III Gaming.

[8] (a) The Tribe is hereby authorized and permitted to operate only the following Gaming

Activities under the terms and conditions set

forth in these Secretarial Procedures:

(1) Gaming Devices.

(2) Any banking or percentage card games.

App. 87

(3) Any devices or games that are authorized

under state law to the California State

Lottery, provided that the Tribe will not

offer such games through use of the Internet unless others in the state not affiliated with or licensed by the California

State Lottery are permitted to do so under state and federal law.

(b) Nothing herein shall be construed to preclude

the Tribe from offering class II gaming or preclude the negotiation of a separate compact

governing the conduct of off-track wagering at

the Tribe’s Gaming Facility.

Gaming that the State lacks the power to authorize or permit under article IV, section 19,

subdivision (f ), of the California State Constitution.

(d) The Tribe shall not engage in Class III Gaming that is not expressly authorized in these

Secretarial Procedures.

SECTION 4.0. AUTHORIZED LOCATION OF

GAMING FACILITY, NUMBER OF GAMING DEVICES, COST REIMBURSEMENT, AND MITIGATION.

Sec. 4.1. Authorized Number of Gaming Devices.

(a) Pursuant to the conditions set forth in section

3.1 and sections 4.2 through and including

section 5.2, the Tribe is entitled to operate up

to a total of two thousand (2,000) Gaming

App. 88

Devices during the first two (2) years in which

Gaming Activities occur, and thereafter the

Tribe is entitled to operate up to a total of two

thousand five hundred (2,500) Gaming Devices.

[9] (b) The Tribe may request that the Secretary

consider increasing the authorized number of

Gaming Devices that the Tribe is entitled to

operate under these Secretarial Procedures,

provided that such request is made any time

after the first seven (7) years in which Gaming Activities occur. The Secretary is not obligated to accept a request by the Tribe to

reopen negotiations under this subdivision (b)

unless the State has authorized another federally recognized Indian tribe to operate in excess of two thousand five hundred (2,500)

Gaming Devices at any location within a sixty

(60)-mile radius of the Madera Parcel, in

which case the Secretary shall consider but

not be required to accept the Tribe’s request

under this subdivision (b) and the Secretary

may address other issues to negotiate related

to the proposed increase in the number of

Gaming Devices.

Sec. 4.2. Authorized Gaming Facility.

The Tribe may establish and operate not more

than two (2) Gaming Facilities and engage in Class III

Gaming only on eligible Indian lands held in trust

for the Tribe, located within the boundaries of the

Madera Parcel, as those boundaries exist as of the execution date of these Secretarial Procedures, as legally

App. 89

described in and represented on the map at Appendix

A, and on which Class III Gaming may lawfully be conducted under IGRA.

Sec. 4.3. Special Distribution Fund.

(a) The Tribe shall pay to the State on a pro rata basis

the State’s 25 U.S.C. § 2710(d)(3)(C) costs incurred

for purposes consistent with IGRA, including the

performance of all its duties under these Secretarial Procedures and funding for the Office of Problem Gambling, as determined by the monies

appropriated in the annual Budget Act each fiscal

year to carry out those purposes (“Appropriation”).

The Appropriation and the maximum number of

Gaming Devices operated by all federally recognized tribes in California pursuant to tribal-state

gaming compacts in operation during the previous

State fiscal year shall be reported annually by

the State Gaming Agency to the Tribe on December 15. The term “operated” or “operation” as used

in these Secretarial Procedures in relation to

Gaming Devices describes each and every Gaming

Device available to patrons (including slot contestants) for play at any given time. For purposes

of this section 4.3, “tribal-state gaming compacts”

refers to tribal-state class III gaming compacts under IGRA and procedures prescribed by the Secretary pursuant to 25 U.S.C. § [10] 2710(d)(7)(B)(vii)

of IGRA for which the State has assumed regulatory responsibilities for the conduct of Class III

Gaining. The Tribe’s pro rata share of the State’s

25 U.S.C. § 2710(d)(3)(C) regulatory costs in any

given year these Secretarial Procedures are in effect shall be calculated by the following equation:

App. 90

The maximum number of Gaming Devices operated in the Tribe’s Gaming Facility during

the previous State fiscal year as determined

by the State Gaming Agency, divided by the

maximum number of Gaming Devices operated by all federally recognized tribes in

California pursuant to tribal-state gaming

compacts during the previous State fiscal

year, multiplied by the Appropriation, equals

the Tribe’s pro rata share.

(1) Beginning the first full quarter after Class III

Gaming commences under these Secretarial

Procedures, the Tribe shall pay its pro rata

share to the State Gaining Agency for deposit

into the Indian Gaming Special Distribution

Fund established by the Legislature (Special

Distribution Fund). The payment shall be

made in four (4) equal quarterly installments

due on the thirtieth (30th) day following the

end of each calendar quarter, (i.e., by April 30

for the first quarter, July 30 for the second

quarter, October 30 for the third quarter, and

January 30 for the fourth quarter); provided,

however, that in the event these Secretarial

Procedures becomes effective during a calendar quarter, payment shall be prorated for the

number of days remaining in that initial quarter, in addition to any remaining full quarters

in the first calendar year of operation to obtain a full year of full quarterly payments of

the Tribe’s pro rata share specified above. A

payment year will run from January through

December. If any portion of the Tribe’s quarterly pro rata share payment is overdue, the

Tribe shall pay to the State for purposes of

App. 91

deposit into the Special Distribution Fund,

the amount overdue plus interest accrued

thereon at the rate of one percent (1%) per

month or the maximum rate permitted by

state law for delinquent payments owed to the

State, whichever is less. All quarterly payments shall be accompanied by the Quarterly

Contribution Report specified in section 4.5,

subdivision (b).

(2) If the Tribe objects to the State’s determination of the Tribe’s pro rata share, or to the

amount of the Appropriation as including

matters not consistent with IGRA, the matter

shall be [11] resolved in accordance with the

dispute resolution provisions of section 13.0.

Any State determination of the Tribe’s pro

rata share challenged by the Tribe shall govern and must be paid by the Tribe to the State

when due.

(3) The foregoing payments have been negotiated

between the State and the Tribe as a fair and

reasonable contribution, based upon the

State’s costs of regulating and mitigating certain impacts of tribal Class III Gaming Activities, as well as the Tribe’s market conditions,

its circumstances, and the rights afforded and

consideration provided by these Secretarial

Procedures.

App. 92

Sec. 4.3.1. Use of Special Distribution Funds.

Revenue placed in the Special Distribution Fund

shall be available for appropriation by the Legislature

for the following purposes:

(a) Grants, including any administrative costs,

for programs designed to address and treat

gambling addiction;

(b) Grants, including any administrative costs

and environmental review costs, for the support of State and local government agencies

impacted by tribal government gaming;

by the State in connection with the implementation and administration of Class III Gaming

compacts in California; and

(d) Any other purposes specified by the Legislature that are consistent with IGRA.

Sec. 4.4. Quarterly Payments and Quarterly

Contribution Report.

(a) (1) The Tribe shall remit quarterly to the

State Gaming Agency (i) the payments

described in section 4.3, for deposit into

the Special Distribution Fund and (ii) the

payments described in section 5.2, for deposit into the Revenue Sharing Trust

Fund or the Tribal Nation Grant Fund.

[12] (2)

If the Gaming Activities authorized by these Secretarial Procedures commence during a calendar quarter, the first

App. 93

payment shall be due on the thirtieth

(30th) day following the end of the first

full quarter of the Gaming Activities and

shall cover the period from the commencement of the Gaming Activities to

the end of the first full calendar quarter.

(3) All quarterly payments shall be accompanied by the certification specified in subdivision (b).

(b) At the time each quarterly payment is due, regardless of whether any monies are owed, the

Tribe shall submit to the State Gaming

Agency a certification (the “Quarterly Contribution Report”) that specifies the following:

(1) calculation of the maximum number of

Gaming Devices operated in the Gaming

Facility for each day during the given

quarter;

(2) the Gross Gaming Revenue calculation

reflecting the quarterly Gross Gaming

Revenue from the operation of all Gaming

Devices in the Facility;

(3) the amount due pursuant to section 4.3;

(4) calculation of the amount due pursuant

to section 5.2; and

(5) the total amount of the quarterly payment paid to the State.

The Quarterly Contribution Report shall be

prepared or attested to by the chief financial

officer of the Gaming Operation.

App. 94

in no event later than April 30 of the following calendar year, the Tribe shall provide to the State Gaming Agency an

audited annual certification of its Gross

Gaming Revenue calculation from the operation of Gaming Devices. The audit

shall be conducted in accordance with

generally accepted auditing standards, as

applied to audits for the gaming industry,

by an independent certified public accountant who is not employed by the

Tribe, the Tribal [13] Gaming Agency, the

Management Contractor, or the Gaming

Operation, is only otherwise retained by

any of these entities to conduct regulatory audits or independent audits of the

Gaming Operation, and has no financial

interest in any of these entities. The auditor used by the Tribe for this purpose

shall be approved by the State Gaming

Agency, or other State Designated

Agency, but the State shall not unreasonably withhold its consent.

(2) If the audit shows that the Tribe made an

overpayment from its Gross Gaming Revenue to the State during the year covered

by the audit, the Tribe’s next quarterly

payment may be reduced by the amount

of the overage. If the audit shows that the

Tribe made an underpayment to the

State during the year covered by the audit, the Tribe’s next quarterly payment

shall be increased by the amount of the

underpayment.

App. 95

(3) The State Gaming Agency shall be authorized to confer with the auditor at the

conclusion of the audit process and to review all of the independent certified public accountant’s final work papers and

documentation relating to the audit. The

Tribal Gaming Agency shall be notified of

and provided the opportunity to participate in and attend any such conference or

document review.

(d) The State Gaming Agency may audit the calculations in subdivision (b) and Gross Gaming

Revenue calculations specified in the audit

provided pursuant to subdivision (c). The

State Gaming Agency shall have access to

all records deemed necessary by the State

Gaming Agency to verify the calculations in

subdivision (b) and Gross Gaming Revenue

calculations, including access to the Gaming

Device accounting systems and server-based

systems and software, and to the data contained therein on a read only basis. If the

State Gaming Agency determines that the

Gross Gaming Revenue is understated or the

deductions overstated, it will promptly notify

the Tribe and provide a copy of the audit. The

Tribe within twenty (20) days will either accept the difference or provide reconciliation

satisfactory to the State Gaming Agency. If

the Tribe accepts the difference or does not

provide a reconciliation satisfactory to the

State Gaming Agency, the Tribe must immediately pay the amount of the resulting [14]

deficiency, plus accrued interest thereon at

the rate of one percent (1%) per month or the

App. 96

maximum rate permitted by state law for delinquent payments owed to the State, whichever is less. If the Tribe does not accept the

difference but does not provide a reconciliation satisfactory to the State Gaming Agency,

the Tribe may commence dispute resolution

under section 13.0. The parties expressly

acknowledge that the Quarterly Contribution

Reports provided for in subdivision (b) are

subject to section 8.4, subdivision (h).

(e) Notwithstanding anything to the contrary in

section 13.0, any failure of the Tribe to remit

the payments referenced in subdivision (a), in

a timely manner shall be deemed a material

breach of these Secretarial Procedures.

(f ) If any portion of the payments under subdivision (a) of this section is overdue after the

State Gaming Agency has provided written

notice to the Tribe of the overdue amount with

an opportunity to cure of at least fifteen (15)

business days, and if more than sixty (60) calendar days have passed from the due date,

and the Tribe has not commenced dispute resolution under section 13.0, then the Tribe

shall be deemed to be in material breach of

these Secretarial Procedures.

Sec. 4.5. Exclusivity.

In recognition of the Tribe’s agreement to make

the payments specified in sections 4.3 and 5.2, the

Tribe shall have the following rights:

App. 97

(a) In the event the exclusive right of Indian

tribes to operate Gaming Devices in California is abrogated by the enactment, amendment, or repeal of a State statute or

constitutional provision, or the conclusive and

dispositive judicial construction of a statute or

the State Constitution by a California appellate court after the effective date of these Secretarial Procedures that Gaming Devices may

lawfully be operated by another person, organization, or entity (other than an Indian

tribe) within California, the Tribe shall have

the right to exercise one of the following options:

(1) Terminate these Secretarial Procedures,

in which case the Tribe will lose the right

to operate Gaming Devices and other

Class III Gaming authorized by these

Secretarial Procedures; or

[15] (2)

Continue under these Secretarial

Procedures with an entitlement to a reduction of the rates specified in section

5.2 following the conclusion of negotiations, to provide for: (A) compensation to

the State for the costs of regulation, as set

forth in section 4.3; (B) reasonable payments to local governments impacted by

tribal government gaming, the amount

to be determined based upon any intergovernmental agreement entered into

pursuant to section 11.7; (C) grants for

programs designed to address and treat

gambling addiction; and (D) such assessments as authorized at such time under

App. 98

federal law. The negotiations shall commence within thirty (30) days after receipt of a written request by a party to

enter into negotiations, unless both parties agree in writing to an extension of

time. If the Tribe and the State fail to

reach agreement on the amount of reduction of such payments within sixty (60)

days following commencement of the negotiations specified in this section, the

amount shall be determined by arbitration pursuant to section 13.2.

(b) Nothing in this section is intended to preclude

the California State Lottery from offering any

lottery games or devices that are currently or

may hereafter be authorized by state law.

SECTION 5.0. REVENUE SHARING WITH NONGAMING AND LIMITED-GAMING TRIBES.

Sec. 5.1. Definitions.

For purposes of this section 5.0, the following definitions apply:

(a) The “Revenue Sharing Trust Fund” is a fund

created by the Legislature and administered

by the State Gaming Agency that, as limited

trustee, is not a trustee subject to the duties

and liabilities contained in the California Probate Code, similar state or federal statutes,

rules or regulations, or under state or federal

common law or equitable principles, and has

no duties, responsibilities, or obligations

hereunder except for the receipt, deposit, and

App. 99

distribution of monies paid by gaming tribes

for the benefit of Non-Gaming Tribes and

Limited-Gaming Tribes. The State Gaming

Agency shall allocate and disburse the Revenue Sharing Trust Fund monies on a quarterly basis [16] as specified by the Legislature.

Each eligible Non-Gaming Tribe and LimitedGaming Tribe in the State shall receive the

sum of one million one hundred thousand dollars ($1,100,000) per year from the Revenue

Sharing Trust Fund. In the event there are insufficient monies in the Revenue Sharing

Trust Fund to pay one million one hundred

thousand dollars ($1,100,000) per year to

each eligible Non-Gaming Tribe and LimitedGaming Tribe, any available monies in that

fund shall be distributed to eligible NonGaming Tribes and Limited-Gaming Tribes

in equal shares. Monies deposited into the

Revenue Sharing Trust Fund in excess of the

amount necessary to distribute one million

one hundred thousand dollars ($1,100,000) to

each eligible Non-Gaming Tribe and LimitedGaming Tribe shall remain in the Revenue

Sharing Trust Fund available for disbursement in future years and shall not be diverted

to any non-Revenue Sharing Trust Fund or

any non-Tribal Nation Grant Fund use or any

purpose. In no event shall the State’s general

fund be obligated to make up any shortfall in

the Revenue Sharing Trust Fund or to pay

any unpaid claims connected therewith, and,

notwithstanding any provision of law, including any existing provision of law implementing the State Gaming Agency’s obligations

App. 100

related to the Revenue Sharing Trust Fund

under any Class III Gaming compact, NonGaming Tribes and Limited-Gaming Tribes

are not third-party beneficiaries of these

Secretarial Procedures and shall have no

right to seek any judicial order compelling disbursement of any Revenue Sharing Trust

Fund monies to them.

(b) The “Tribal Nation Grant Fund” is a fund created by the Legislature to make discretionary

distribution of funds to Non-Gaming Tribes

and Limited-Gaming Tribes upon application

of such tribes for purposes related to effective

self-governance, self-determined community,

and economic development. The fiscal operations of the Tribal Nation Grant Fund are administered by the State Gaming Agency,

which acts as a limited trustee, not subject to

the duties and liabilities contained in the California Probate Code, similar state or federal

statutes, rules or regulations, or under state

or federal common law or equitable principles,

and with no duties or obligations hereunder

except for the receipt, deposit, and distribution of monies paid by gaming tribes for the

benefit of Non-Gaming Tribes and LimitedGaming Tribes, as those payments are directed by a State Designated Agency. The

State Gaming Agency shall allocate and disburse the Tribal Nation Grant [17] Fund monies as specified by a State Designated Agency

to one or more eligible Non-Gaming and Limited-Gaming Tribes upon a competitive application basis. The State Gaming Agency shall

exercise no discretion or control over, nor bear

App. 101

any responsibility arising from, the recipient

tribes’ use or disbursement of Tribal Nation

Grant Fund monies. The State Designated

Agency shall perform any necessary audits to

ensure that monies awarded to any tribe are

being used in accordance with their disbursement in relation to the purpose of the Tribal

Nation Grant Fund. In no event shall the

State’s general fund be obligated to pay any

monies into the Tribal Nation Grant Fund or

to pay any unpaid claims connected therewith, and, notwithstanding any provision of

law, including any existing provision of law

implementing the State’s obligations related

to the Tribal Nation Grant Fund or the Revenue Sharing Trust Fund under any Class III

Gaming compact, Non-Gaming Tribes and

Limited-Gaming Tribes are not third-party

beneficiaries of these Secretarial Procedures

and shall have no right to seek any judicial

order compelling disbursement of any Tribal

Nation Grant Fund monies to them.

tribal-state Class III Gaming compact, that

has not engaged in, or offered, class II gaming

or Class III Gaming in any location whether

within or without California, as of the date of

distribution to such tribe from the Revenue

Sharing Trust Fund or the Tribal Nation

Grant Fund, or during the immediately preceding three hundred sixty-five (365) days.

(d) A “Limited-Gaming Tribe” is a federally recognized tribe in California that has a Class III

App. 102

Gaming compact with the State but is operating fewer than a combined total of three hundred fifty (350) Gaming Devices in all of its

gaming operations wherever located, or does

not have a Class III Gaming compact but is

engaged in class II gaming, whether within or

without California, during the immediately

preceding three hundred sixty-five (365) days.

Sec. 5.2. Payments to the Revenue Sharing

Trust Fund or the Tribal Nation Grant Fund.

[18] (a) In recognition of the predevelopment expenses incurred by the Tribe, the needs of the

Tribe’s more than 2,000 tribal citizens and the

existence of binding and enforceable agreements with the County, the City of Madera,

and the Madera Irrigation District providing

for mitigation and other investments in the local community, during the first seven (7) years

in which Gaming Activities occur the Tribe

shall have no obligation to pay any amount to

the State Gaming Agency for deposit into the

Revenue Sharing Trust Fund or the Tribal

Nation Grant Fund. After the first seven (7)

years in which Gaming Activities occur, if the

Tribe operates more than three hundred fifty

(350) Gaming Devices at any time in a given

calendar year, it shall pay to the State Gaming Agency, for deposit into the Revenue Sharing Trust Fund or the Tribal Nation Grant

Fund, two percent (2.0%) of its Gross Gaming

Revenue from the operation of Gaming Devices in excess of three hundred fifty (350)

commencing on the first day of the first

App. 103

calendar quarter of the eighth (8th) calendar

year in which Gaming Activities occur. While

the Tribe and the County, the City of Madera,

and the Madera Irrigation District shall have

the discretion to amend their existing agreements to address evolving needs and circumstances in a manner that is mutually

beneficial, the Tribe’s obligation to contribute

to the Revenue Sharing Trust Fund or the

Tribal Nation Grant Fund as specified in this

section shall be subject to renegotiation if the

Tribe’s obligation to make payments to the

County, the City of Madera, or the Madera Irrigation District pursuant to a binding enforceable agreement is no longer in effect.

(b) The Tribe shall remit the payments referenced in subdivision (a) to the State Gaming

Agency in quarterly payments, which payments shall be due thirty (30) days following

the end of each calendar quarter (i.e., by April

30 for the first quarter, July 30 for the second

quarter, October 30 for the third quarter, and

January 30 for the fourth quarter).

as appropriate, shall be determined by first

determining the total number of all Gaming

Devices operated by the Tribe during a given

quarter (Quarterly Device Base). The Quarterly Device Base is equal to the sum total of

the maximum number of Gaming Devices in

operation for each day of the calendar quarter

divided by the number of days in the calendar

quarter that the Gaming [19] Operation

App. 104

operates any Gaming Devices during the

given calendar quarter.

(d) If any portion of the payments under subdivision (b) is overdue after the State Gaming

Agency has provided written notice to the

Tribe of the overdue amount with an opportunity to cure of at least fifteen (15) business

days, and if more than sixty (60) calendar

days have passed from the due date, then the

Tribe shall cease operating all of its Gaming

Devices until full payment is made.

(e) All payments made by the Tribe to the State

Gaming Agency pursuant to subdivision (b)

shall be deposited into the Revenue Sharing

Trust Fund and the Tribal Nation Grant Fund

in a proportion to be determined by the Legislature, provided that if there are insufficient

monies in the Revenue Sharing Trust Fund to

pay one million one hundred thousand dollars

($1,100,000) per year to each eligible NonGaming Tribe and Limited-Gaming Tribe, the

State Gaming Agency shall deposit all payments into the Revenue Sharing Trust Fund.

[20] SECTION 6.0. LICENSING.

Sec. 6.1. Gaming Ordinance and Regulations.

(a) All Gaming Activities conducted under these

Secretarial Procedures shall, at a minimum,

comply (i) with a Gaming Ordinance duly

adopted by the Tribe and approved in accordance with IGRA, (ii) with all rules, regulations,

procedures, specifications, and standards duly

App. 105

adopted by the NIGC, the Tribal Gaming

Agency, and the State Gaming Agency, and

(iii) with the provisions of these Secretarial

Procedures.

(b) The Tribal Gaming Agency shall transmit a

copy of the Gaming Ordinance, and all of its

rules, regulations, procedures, specifications,

ordinances, or standards applicable to the

Gaming Activities and Gaming Operation, to

the State Gaming Agency within twenty (20)

days following issuance of these Secretarial

Procedures, or within twenty (20) days following their adoption or amendment, whichever

is later.

shall make available an electronic or hard

copy of the following documents to any member of the public upon request and in the manner requested: the Gaming Ordinance; the

rules of each Class III game operated by the

Tribe; the Tribe’s constitution or other governing document(s) to the extent they impact the

public in relation to the Gaming Activities or

Gaming Operation; the tort ordinance specified in section 12.5, subdivision (b); the employment discrimination complaint ordinance

specified in section 12.3, subdivision (f ); the

regulations promulgated by the Tribal Gaming Agency concerning patron disputes pursuant to section 10.0; and the NIGC minimum

internal control standards and these Secretarial Procedures, including all appendices

hereto, in the event they are not available on

App. 106

the NIGC’s or the State Gaming Agency’s

website(s).

Sec. 6.2. Tribal Ownership, Management, and

Control of Gaming Operation.

The Gaming Operation authorized under these

Secretarial Procedures shall be owned solely by the

Tribe.

[21] Sec. 6.3. Prohibitions Regarding Minors.

(a) The Tribe shall prohibit persons under the

age of twenty-one (21) years to be present in

any room or area in which Gaming Activities

are being conducted unless the person is en

route to a non-gaming area of the Gaming Facility, or is employed at the Gaming Facility in

a capacity other than as a Gaming Employee.

(b) If the Tribe permits the consumption of alcoholic beverages in the Gaming Facility, the

Tribe shall prohibit persons under the age of

twenty-one (21) years from purchasing, consuming, or possessing alcoholic beverages.

The Tribe shall also prohibit persons under

the age of twenty-one (21) years from being

present in any room or area in which alcoholic

beverages may be consumed, except to the extent permitted by the State Department of Alcoholic Beverage Control for other commercial

establishments serving alcoholic beverages.

App. 107

Sec. 6.4. Licensing Requirements and Procedures.

Sec. 6.4.1. Summary of Licensing Principles.

All persons in any way connected with the Gaming

Operation or Gaming Facility who are required to be

licensed or to submit to a background investigation under IGRA, and any others required to be licensed under

these Secretarial Procedures, including, without limitation, all Gaming Employees, Gaming Resource Suppliers, Financial Sources, and any other person having

a significant influence over the Gaming Operation,

must be licensed by the Tribal Gaming Agency and

cannot have had any determination of suitability denied or revoked by the State Gaming Agency. The parties intend that the licensing process provided for in

these Secretarial Procedures shall involve joint cooperation between the Tribal Gaming Agency and the

State Gaming Agency, as more particularly described

herein.

Sec. 6.4.2. Gaming Facility.

(a) The Gaming Facility authorized by these Secretarial Procedures shall be licensed by the

Tribal Gaming Agency in conformity with the

[22] requirements of these Secretarial Procedures, the Tribe’s Gaming Ordinance, IGRA,

and any applicable regulations adopted by the

NIGC. The license shall be reviewed and renewed every two (2) years thereafter. Verification that this requirement has been met shall

be provided by the Tribe to the State by

App. 108

sending a copy of the initial license and each

renewal license to the State Gaming Agency

within twenty (20) days after issuance of

the license or renewal. The Tribal Gaming

Agency’s certification that the Gaming Facility is being operated in conformity with these

requirements shall be posted in a conspicuous

and public place in the Gaming Facility at all

times.

(b) To assure the protection of the health and

safety of all Gaming Facility patrons, guests,

and employees, the Tribe shall adopt, or has

already adopted, and shall maintain throughout the term of these Secretarial Procedures,

an ordinance that requires any Gaming Facility construction to meet or exceed the Applicable Codes. The Gaming Facility and

construction, expansion, improvement, modification, or renovation will also comply with

the federal Americans with Disabilities Act, P.

L. 101-336, as amended, 42 U.S.C. § 12101 et

seq. Notwithstanding the foregoing, the Tribe

need not comply with any standard that specifically applies in name or in fact only to

tribal facilities. Without limiting the rights

of the State under this section, reference to

Applicable Codes is not intended to confer jurisdiction upon the State or its political subdivisions. For purposes of this section, the

terms “building official” and “code enforcement agency” as used in titles 19 and 24 of the

California Code of Regulations mean the

Tribal Gaming Agency or such other tribal

government agency or official as may be designated by the Tribe’s law.

App. 109

Codes, in all cases where those codes would

otherwise require a permit, the Tribe shall

employ for any Gaming Facility construction

qualified plan checkers or review firms. To be

qualified as a plan checker or review firm for

purposes of these Secretarial Procedures, plan

checkers or review firms must be either California licensed architects or engineers with

relevant experience, or California licensed architects or engineers on the list, if any, of approved plan checkers or review firms provided

by the city or county in which the Gaming Facility is located. The Tribe shall also employ

qualified project inspectors. To be qualified

as a project inspector for purposes of these

Secretarial Procedures, project [23] inspectors

must possess the same qualifications and certifications as project inspectors utilized by the

county in which the Gaming Facility is located. The plan checkers, review firms, and

project inspectors shall hereinafter be referred to as “Inspector(s).” The Tribe shall require the Inspectors to report in writing any

failure to comply with the Applicable Codes to

the Tribal Gaming Agency and the State

Gaming Agency.

(d) The Tribe shall cause the design and construction calculations, and plans and specifications that form the basis for the

construction (the “Design and Building

Plans”) to be available to the State Gaming

Agency for inspection and copying by the

State Gaming Agency upon its request.

App. 110

(e) In the event that material changes to a structural detail of the Design and Building Plans

will result from contract change orders or any

other changes in the Design and Building

Plans, such changes shall be reviewed by the

qualified plan checker or review firm and field

verified by the Inspectors for compliance with

the Applicable Codes.

(f ) The Tribe shall maintain during construction

all other contract change orders for inspection

and copying by the State Gaming Agency

upon its request.

(g) The Tribe shall maintain the Design and

Building Plans depicting the as-built Gaming

Facility, which shall be available to the State

Gaming Agency for inspection and copying by

the State Gaming Agency upon its request, for

the term of these Secretarial Procedures.

(h) Upon final certification by the Inspectors that

the Gaming Facility meets the Applicable

Codes, the Tribal Gaming Agency shall forward the Inspectors’ certification to the State

Gaming Agency within ten (10) days of issuance. If the State Gaming Agency objects to

that certification, the Tribe shall make a good

faith effort to address the State’s concerns,

but if the State Gaming Agency does not withdraw its objection, the matter will be resolved

in accordance with the dispute resolution provisions of section 13.0.

(i)

Any failure to remedy within a reasonable period of time any material and timely raised

deficiency shall be deemed a violation of these

App. 111

[24] Secretarial Procedures, and furthermore,

any deficiency that poses a serious or significant risk to the health or safety of any occupant shall be grounds for the State Gaming

Agency to prohibit occupancy of the affected

portion of the Gaming Facility pursuant to a

court order until the deficiency is corrected.

The Tribe shall not allow occupancy of any

portion of the Gaining Facility that is constructed or maintained in a manner that endangers the health or safety of the occupants.

(j)

The Tribe shall also take all necessary steps

to reasonably ensure the ongoing availability

of sufficient and qualified fire suppression services to the Gaming Facility, and to reasonably ensure that the Gaming Facility satisfies

all requirements of titles 19 and 24 of the California Code of Regulations applicable to similar facilities in the County as set forth

below:

(1) Not less than thirty (30) days before the

commencement of the Gaining Activities,

and not less than biennially thereafter,

and upon at least ten (10) days’ notice to

the State Gaming Agency, the Gaming

Facility shall be inspected, at the Tribe’s

expense, by an independent expert for

purposes of certifying that the Gaming

Facility meets a reasonable standard of

fire safety and life safety.

(2) The State Gaming Agency shall be entitled to designate and have a qualified

representative or representatives, which

App. 112

may include local fire suppression entities, present during the inspection. During

such inspection, the State’s representative(s) shall specify to the independent

expert any condition which the representative(s) reasonably believes would

preclude certification of the Gaming Facility as meeting a reasonable standard of

fire safety and life safety.

(3) The independent expert shall issue to the

Tribal Gaming Agency and the State

Gaming Agency a report on the inspection

within fifteen (15) days after its completion, or within thirty (30) days after commencement of the inspection, whichever

first occurs, identifying any deficiency in

fire safety or life safety at the Gaming Facility or in the ability of the Tribe to meet

reasonably expected fire suppression

needs of the Gaming Facility.

[25] (4)

Within twenty-one (21) days after

the issuance of the report, the independent expert shall also require and approve

a specific plan for correcting deficiencies,

whether in fire safety or life safety, at the

Gaming Facility or in the Tribe’s ability

to meet the reasonably expected fire suppression needs of the Gaming Facility, including those identified by the State

Gaming Agency’s representatives. A copy

of the report shall be delivered to the

State Gaming Agency and the Tribal

Gaming Agency.

App. 113

(5) Immediately upon correction of all deficiencies identified in the report, the independent expert shall certify in writing to

the Tribal Gaming Agency and the State

Gaming Agency that all deficiencies have

been corrected.

(6) Any failure to correct all deficiencies

identified in the report within a reasonable period of time shall be a violation of

these Secretarial Procedures and any

failure to promptly correct those deficiencies that pose a serious or significant risk

to the health or safety of any occupants

shall be a violation of these Secretarial

Procedures and grounds for the State

Gaming Agency to request that the NIGC

prohibit occupancy of the affected portion

of the Gaming Facility until the deficiency is corrected.

(7) Consistent with its obligation to ensure

the safety of those within the Gaming Facility, the Tribe shall promptly notify the

State Gaming Agency of circumstances

that pose a serious and significant risk to

the health or safety of occupants and take

prompt action to correct such circumstances. Any failure to remedy within a

reasonable period of time any serious and

significant risk to public safety shall be

deemed a violation of this these Secretarial Procedures, and furthermore, any circumstance that poses a serious or

significant risk to the health or safety of

any occupant shall be grounds for the

App. 114

State Gaming Agency to prohibit occupancy of the affected portion of the Gaming Facility pursuant to a court order

until the deficiency is corrected.

[26] Sec. 6.4.3. Gaming Employees.

(a) Every Gaming Employee shall obtain, and

thereafter maintain current, a valid tribal

gaming license, and except as provided in

subdivision (b), shall obtain, and thereafter

maintain current, a State Gaming Agency

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