Stand up For California! et al v. United States Department of The Interior et alMOTION for SUMMARY JUDGMENTE.D. Cal.May 12, 20174847-3511-1495 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Sean M. Sherlock, SBN 161627 ssherlock@swlaw.com SNELL & WILMER L.L.P. 600 Anton Blvd, Suite 1400 Costa Mesa, California 92626-7689 Telephone: 714.427.7000 Facsimile: 714.427.7799 Heidi McNeil Staudenmaier (pro hac vice) hstaudenmaier@swlaw.com SNELL & WILMER L.L.P. 400 E. Van Buren Street, Suite 1900 Phoenix, Arizona 85004 Telephone: 602.382.6000 Facsimile: 602.382.6070 Attorneys for Plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God – Madera and Dennis Sylvester Jennifer A. MacLean (pro hac vice) jmaclean@perkinscoie.com PERKINS COIE LLP 700 13th Street, N.W., Suite 600 Washington, DC 20005-3960 Telephone: 202-434-1648 Facsimile: 202-654-6211 Brian Daluiso, SBN 287519 bdaluiso@perkinscoie.com PERKINS COIE LLP 11988 El Camino Real, Suite 350 San Diego, California 92130 Telephone: 858-720-5781 Facsimile: 858-720-5799 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA STAND UP FOR CALIFORNIA!, 7911 Logan Lane, Penryn, California 95663 RANDALL BRANNON, 26171 Valerie Avenue, Madera, California 93638; MADERA MINISTERIAL ASSOCIATION, 17755 Road 26, Madera, California 93638; SUSAN STJERNE, 24349 Tropical Drive, Madera, California 93638; FIRST ASSEMBLY OF GOD – MADERA, 22444 Avenue 18 ½, Madera, California 93637; and DENNIS SYLVESTER, 18355 Road 25, Madera, California 93638, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, 1849 C Street, N.W., Washington, Case No. 2:16-CV-02681-AWI-EPG [Related Cases: 16-cv-950-AWI and 1:15-cv-00419-AWI] Hon. Anthony W. Ishii, Ctrm. 2 Mag. Judge Erica P. Grosjean, Ctrm. 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Complaint Filed: November 11, 2016 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 1 of 41 4847-3511-1495 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 D.C. 20240; SARAH MARGARET ROFFEY JEWELL, in her official capacity as Secretary, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; BUREAU OF INDIAN AFFAIRS, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; LAWRENCE ROBERTS, in his official capacity as Principal Deputy Assistant Secretary, Bureau of Indian Affairs, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240, Defendants. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 2 of 41 4847-3511-1495 - i - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................................ i STATEMENT OF FACTS .............................................................................................................. 2 I. STANDARD OF REVIEW .................................................................................................... 5 LEGAL ARGUMENT ..................................................................................................................... 6 II. THE SECRETARIAL PROCEDURES ARE SUBJECT TO CHALLENGE UNDER THE APA AS A FINAL AGENCY ACTION ................................................................................ 6 III. THE SECRETARIAL PROCEDURES VIOLATE IGRA AND THE JOHNSON ACT ...... 8 A. Under IGRA’s plain meaning, the Johnson Act waiver does not apply to Secretarial Procedures ...................................................................................................................... 9 B. Nothing in IGRA’s legislative history contradicts the plain meaning of the Johnson Act waiver .................................................................................................................... 13 IV. THE SECRETARY VIOLATED NEPA IN ISSUING THE SECRETARIAL PROCEDURES ..................................................................................................................... 15 A. Prescribing Secretarial Procedures is a major federal action significantly affecting the quality of the environment ........................................................................................... 16 B. The Secretarial Procedures invoke secretarial discretion sufficient to require NEPA review ............................................................................................................... 19 V. THE SECRETARY VIOLATED THE CLEAN AIR ACT BY ISSUING THE SECRETARIAL PROCEDURES ......................................................................................... 20 VI. THE SECRETARIAL PROCEDURES VIOLATE IGRA BECAUSE THE GOVERNOR’S CONCURRENCE IN THE TWO-PART DETERMINATION IS INVALID ..................... 23 A. The Secretarial Procedures must be invalidated if the California Supreme Court holds that the Governor lacked authority to concur in the Secretary’s two-part determination ...................................................................................................................................... 24 B. There is sufficient reason to conclude that the California Supreme Court will hold Governor Brown lacked the authority to concur under State law. ............................... 28 VII. THE FEDERAL AGENCY DEFENDANTS VIOLATED THE FREEDOM OF INFORMATION ACT .......................................................................................................... 31 CONCLUSION .............................................................................................................................. 32 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 3 of 41 4847-3511-1495 - i - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 TABLE OF AUTHORITIES Page Federal Cases Am. Bankers Ass’n v. Gould, 412 F.3d 1081 (9th Cir. 2005).................................................................................................... 10 Artichoke Joes California Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003)......................................................................................... 14, 15, 27 Bates v. United States, 522 U.S. 23 (1997) ..................................................................................................................... 11 Bennett v. Spear, 520 U.S. 154 (1997) ..................................................................................................................... 6 Brown v. U.S. Customs and Border Protection, 132 F. Supp. 3d 1170 (N.D. Cal. 2015) ..................................................................................... 31 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) ................................................................................................................... 13 Citizens for Responsibility and Ethics in Washington v. FEC, (CREW), 711 F.3d 180 (D.C. Cir. 2013).............................................................................. 31, 32 Confederated Tribes of Siletz Indians v. U.S., 841 F. Supp. 1479 (D. Or. 1994) ............................................................................................... 28 Confederated Tribes of Siletz v. United States, 110 F.3d 688 (9th Cir. 1997)...................................................................................... 3, 24, 26, 28 County of Amador, California v. United States Department of the Interior, 136 F. Supp. 3d 1193 (E.D. Cal. 2015) .............................................................................. 5, 9, 22 Department of Transp. v. Public Citizen, 541 U.S. 752 (2004) ............................................................................................................. 19, 22 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 367 F.3d 650 (7th Cir. 2004)...................................................................................................... 30 Long v. IRS, 693 F.2d 907 (9th Cir. 1982)...................................................................................................... 31 Natural Resources Defense Council, Inc. v. Berklund, 458 F. Supp. 925 (D.D.C. 1978) .......................................................................................... 20, 21 North Fork Rancheria of Mono Indians of California v. State of California (North Fork I), 2015 WL 11438206 (E.D. Cal. Nov. 13, 2015) ................................................................... 3, 4, 9 Northwest Motorcycle Ass’n v. U.S. Dep’t of Agriculture, 18 F.3d 1468 (9th Cir. 1994)........................................................................................................ 6 Oklahoma Tax Com’n v. Sac and Fox Nation, 508 U.S. 114 (1993) ..................................................................................................................... 9 Oliphant v. Schlie, 544 F.2d 1007 (9th Cir. 1976).............................................................................................. 27, 28 Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Circ. 1988) ................................................................................................. 31 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 4 of 41 4847-3511-1495 - ii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Printz v. U.S., 521 U.S. 898 (1997) ................................................................................................................. 7, 8 Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997)................................................................................ 13, 25, 26, 27 Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996).................................................................................................. 16, 18 Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1994)...................................................................................... 9, 12, 13, 14 Schroeder v. United States, 793 F.3d 1080 (9th Cir. 2015).................................................................................................... 13 Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994) ...................................................................................... 18 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ............................................................................................................... 10, 15 Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995)...................................................................................................... 16 Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C. 2006) ............................................................................................. 19 South Yuba River Citizens League v. National Marine Fisheries Serv., 2008 WL 2523819 (E.D. Cal. June 20, 2008) ............................................................................ 31 Stand Up for California! v. U.S. Dep’t of the Interior (Stand Up v. DOI), 204 F. Supp. 3d. 212 (D.D.C. 2016) .................................................................................... 24, 25 State of New Mexico v. Dep’t of the Interior, --- F.3d ----, 2017 WL 1422365 (10th Cir. Apr. 21, 2017) ........................................................ 10 Thompson v. U.S. Dept. of Labor, 885 F.2d 551 (9th Cir. 1989)................................................................................................ 17, 18 United States v. Brown, 334 F. Supp. 536 (D. Neb. 1971) ............................................................................................... 27 United States v. Lawrence, 595 F.2d 1149 (9th Cir. 1979).................................................................................................... 26 United States v. Ron Pair Enters, 489 U.S. 235 (1989) ..................................................................................................................... 9 State Cases Ginns v. Savage, 61 Cal.2d 520 (1964) ................................................................................................................. 30 Hotel Employees and Restaurant Employees Int’l Union v. Davis, 21 Cal.4th 585 (1999) ................................................................................................................ 14 Stand Up for California v. State of California, 6 Cal. App. 5th 686 (2016) ............................................................................................ 23, 29, 30 United Auburn Indian Community v. Brown, 4 Cal. App. 5th 36 (2016) ........................................................................................ 23, 28, 29, 30 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 5 of 41 4847-3511-1495 - iii - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Federal Statutes 15 U.S.C. § 1171 .............................................................................................................................. 1 15 U.S.C. § 1175(a) ......................................................................................................................... 8 18 U.S.C. § 1151 .............................................................................................................................. 9 18 U.S.C. § 1151(a) ......................................................................................................................... 9 18 U.S.C. § 1166 ...................................................................................................................... 11, 12 18 U.S.C. § 1166(a) ................................................................................................................. 12, 28 18 U.S.C. § 1166(c)(2) ................................................................................................................... 12 18 U.S.C. § 1166(d) ....................................................................................................................... 28 25 U.S.C. § 1323(a) ....................................................................................................................... 27 25 U.S.C. § 2701 .......................................................................................................................... 1, 2 25 U.S.C. § 2703(4)(B) .................................................................................................................... 9 25 U.S.C. § 2710(d)(1) ................................................................................................................... 12 25 U.S.C. § 2710(d)(1)(B) ............................................................................................................. 14 25 U.S.C. § 2710(d)(1)(C) ................................................................................................... 6, 12, 27 25 U.S.C. § 2710(d)(3) ............................................................................................................. 10, 12 25 U.S.C. § 2710(d)(6) ................................................................................................................. 8, 9 25 U.S.C. § 2710(d)(6)(A) ............................................................................................................. 13 25 U.S.C. § 2710(d)(7) ............................................................................................................. 10, 12 25 U.S.C. § 2710(d)(7)(B)(ii)(I) .................................................................................................... 10 25 U.S.C. § 2710(d)(7)(B)(vi) ....................................................................................... 6, 10, 12, 19 25 U.S.C. § 2710(d)(7)(B)(vii) .................................................................................... 6, 7, 8, 12, 16 25 U.S.C. § 2710(d)(7)(B)(vii)(I) .................................................................................................. 19 25 U.S.C. § 2710(d)(7)(vi) ............................................................................................................. 10 25 U.S.C. § 2710(d)(7)(vii) ...................................................................................................... 26, 28 25 U.S.C. § 2719(a) ................................................................................................................... 2, 24 25 U.S.C. § 2719(b)(1)(A) ....................................................................... 1, 2, 21, 22, 23, 24, 26, 28 42 U.S.C. § 4321 .............................................................................................................................. 1 42 U.S.C. § 4332(2)(C) .................................................................................................................. 15 42 U.S.C. § 7401 .............................................................................................................................. 1 42 U.S.C. § 7506 .............................................................................................................................. 1 42 U.S.C. § 7506(c)(4)(A) ............................................................................................................. 21 42 U.S.C. § 7506(c) ....................................................................................................................... 20 5 U.S.C. § 551 .................................................................................................................................. 2 5 U.S.C. § 551(13) ........................................................................................................................... 6 5 U.S.C. § 552(a)(6)(A)(i).............................................................................................................. 31 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 6 of 41 4847-3511-1495 - iv - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 5 U.S.C. § 704 .................................................................................................................................. 6 5 U.S.C. § 706(2) ................................................................................................................... 2, 5, 22 5 U.S.C. § 706(2)(A) .................................................................................................................. 9, 12 State Statutes Article IV, § 19 of the California Constitution ........................................................................ 30, 31 Article IV, § 19(e) of the California Constitution .............................................................. 14, 29, 30 Article IV, § 19(f) of the California Constitution ................................................................ 8, 14, 30 Cal. Pub. Res. Code, § 21000 ........................................................................................................ 18 Federal Rules Federal Rule of Civil Procedure 25(d) ............................................................................................. 1 Federal Rule of Civil Procedure 56 .................................................................................................. 5 Federal Regulations 25 C.F.R. Part 291 .......................................................................................................................... 10 40 C.F.R. § 1501.4 ......................................................................................................................... 15 40 C.F.R. § 1506.1(a) ..................................................................................................................... 16 40 C.F.R. § 1506.5(a) ..................................................................................................................... 18 40 C.F.R. § 1506.5(b) .................................................................................................................... 18 40 C.F.R. § 1506.6 ......................................................................................................................... 16 40 C.F.R. § 1508(a)(1) ................................................................................................................... 15 40 C.F.R. § 1508.18 ....................................................................................................................... 16 40 C.F.R. § 93.159(b) .................................................................................................................... 22 40 C.F.R. §§ 93.150-93.165 ........................................................................................................... 21 40 C.F.R. § 93.153(b) .................................................................................................................... 22 Official Release of EMFAC2007 Motor Vehicle Emission Factor Model for Use in the State of California, 73 Fed. Reg. 3464 (January 18, 2008) ..................................................................... 23 Official Release of EMFAC2011 Motor Vehicle Emission Factor Model for Use in the State of California, 78 Fed. Reg. 14533 (March 6, 2013) ....................................................................... 23 Other Authorities Robert N. Clinton, Enactment of the Indian Gaming Regulatory Act of 1988: The Return of the Buffalo to Indian Country or Another Federal Usurpation of Tribal Sovereignty, 43 Ariz. St. L J. 17 (2010).......................................................................................................... 15 S. REP. NO. 100-446 (1988) ........................................................................................................... 13 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 7 of 41 4847-3511-1495 - 1 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 INTRODUCTION Plaintiffs bring this action to invalidate the “Secretarial Procedures” issued by the United States Secretary of the Interior (the “Secretary”),1 which permit class III tribal gaming to be conducted on “off-reservation” land that was taken into trust for the North Fork Rancheria of Mono Indians (the “North Fork Tribe” or the “Tribe”). Plaintiffs move this Court for summary judgment holding unlawful and setting aside the Secretarial Procedures on the following grounds: 1. The Secretarial Procedures violate the Johnson Act, 15 U.S.C. § 1171 et seq., by purporting to authorize the North Fork Tribe to operate slot machines, which are illegal under the Johnson Act. Although the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq., provides a waiver from the Johnson Act for gaming conducted under a tribal-state compact, there is no tribal-state compact here. Moreover, the absence of a Johnson Act waiver for Secretarial Procedures was no oversight. Rather, the statutory scheme and legislative history of IGRA demonstrate that Congress intended to waive the Johnson Act prohibition of slot machines only when the state consents to slot machines in a compact. 2. The Secretary violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., by issuing the Secretarial Procedures without performing any environmental review required under NEPA. 3. The Secretary violated the Clean Air Act, 42 U.S.C. § 7401 et seq., by issuing the Secretarial Procedures without performing a “conformity” analysis required under section 176 of the Clean Air Act. 42 U.S.C. § 7506. 4. The Secretarial Procedures are invalid because the off-reservation land is not eligible for tribal gaming under IGRA. The off-reservation land is not eligible for gaming because the Governor of California lacked authority to concur in the Secretary’s two-part determination under 25 U.S.C. § 2719(b)(1)(A). Additionally, plaintiffs seek a judgment against the Department of the Interior (the 1 Under Federal Rule of Civil Procedure 25(d), the current Secretary, Ryan Zinke, is automatically substituted as a defendant in this action in place of the former Secretary, Sarah Margaret Roffey Jewell. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 8 of 41 4847-3511-1495 - 2 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 “Department”) and the Bureau of Indian Affairs (the “Bureau”), ordering them to comply with plaintiffs’ requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 551 et seq. The Department and Bureau failed to respond and produce any documents in response to plaintiffs’ FOIA request. Accordingly, plaintiffs request a judgment holding unlawful and setting aside the Secretarial Procedures under the Administrative Procedure Act, 5 U.S.C. § 706(2). Alternatively, plaintiffs seek an order from this Court directing the Department and the Bureau to comply with plaintiffs’ FOIA requests, and staying consideration of the merits of plaintiffs’ other claims pending such compliance and further briefing if necessary. STATEMENT OF FACTS In 2005, the North Fork Tribe submitted an application to the Department of the Interior (“Department”) to transfer into trust for the Tribe a 305-acre parcel of real property (the “Madera Site”) for the purpose of developing a casino resort. [AR00000160.]2 The Madera Site is located adjacent to the City of Madera, California, on State Route 99, in the heart of the Central Valley. [AR0000166.] Under the federal Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq., tribal gaming may not, subject to certain limited exceptions, be conducted on lands acquired by the Secretary of the Interior (the “Secretary”) in trust for the benefit of an Indian tribe after October 17, 1988. 25 U.S.C. § 2719(a). One of the exceptions to this prohibition is the so-called two-part determination. Under the two-part determination exception, if the Secretary determines that gaming would be in the best interest of the tribe and would not be detrimental to the surrounding community and the Governor of that State concurs in that determination, the Secretary may authorize gaming on land acquired for an Indian tribe after 1988. 25 U.S.C. § 2719(b)(1)(A). Accordingly, the Tribe also submitted a request for a two-part determination to legally conduct gaming on the newly acquired trust land. [AR00000240.] In a 2011 record of decision, the Secretary determined that gaming at the Madera Site would be in the Tribe’s best 2 Citations to “AR” are to the administrative record filed in this case on April 6, 2017. [Dkt. 26.] Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 9 of 41 4847-3511-1495 - 3 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 interest and would not be detrimental to the surrounding community. [AR00000240-41.] Without a valid concurrence from the Governor, however, gaming may not occur on the newly acquired Indian land. Confederated Tribes of Siletz v. United States, 110 F.3d 688, 696 (9th Cir. 1997). Accordingly, upon making his two-part determination for the North Fork Tribe the Secretary requested the concurrence of Governor Brown, who issued his concurrence nearly one year later. [AR AR00000241, 165, 572.] After accepting the Governor’s concurrence, the Secretary issued a 2012 record of decision to acquire the Madera Site into trust. [AR00000160.] The land was accepted in trust in February 2013. [AR00000012.] At the same time Governor Brown issued his concurrence, he announced that he had negotiated and a concluded a tribal-state gaming compact with the North Fork Tribe to govern gaming at the Madera Site and would be forwarding the compact to the California Legislature for ratification. [AR00000572.] In May 2013, the California Legislature passed AB 277, a bill to ratify the compact. [AR00002187.] The California Secretary of State subsequently forwarded the ratified compact to the Secretary who published the compact’s approval in the Federal Register on October 22, 2013. Id. But before AB 277 went into effect under California law, a citizen referendum on AB 277 qualified for the November 2014 ballot to allow California voters to decide whether to approve or reject the Legislature’s ratification of the compact. [AR00000455.] On November 4, 2014, the voters rejected the Legislature’s ratification of the compact [AR00002187.] In the wake of the referendum, the North Fork Tribe filed suit in this Court against the State of California pursuant to IGRA’s remedial scheme. North Fork Rancheria of Mono Indians of California v. State of California (North Fork I), 2015 WL 11438206 (E.D. Cal. Nov. 13, 2015). This Court found that the Tribe and the State had not entered into a valid compact, id. at *7, and held that the State failed “to enter negotiations with North Fork for the purpose of entering a Tribal State compact within the meaning of § 2710.” Id. at *12. The Court ordered the State and the Tribe to conclude a compact within 60 days. Id. When the parties failed to do so, the court appointed a mediator. The mediator selected the Tribe’s proposed compact and gave the State 60 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 10 of 41 4847-3511-1495 - 4 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 days to consent to the Tribe’s compact. [AR00000001.] The State did not consent. The mediator then forwarded the selected compact to the Secretary to prescribe Secretarial Procedures. [AR00000001.] On July 29, 2016, the Secretary issued procedures accompanied by a letter to the North Fork Tribe, signed by the Acting Assistant Secretary - Indian Affairs, informing the Tribe that Secretarial Procedures were in effect and the Tribe was therefore authorized to conduct class III gaming at the Madera Site. [AR00002186-88.] In the letter, the Acting Assistant Secretary noted that in prescribing the Secretarial Procedures, “we have purposefully 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.”3 [AR00002188.] The letter further stated, “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.” Id. Notably, the Secretarial Procedures allow the Tribe to develop and operate a larger casino than contemplated in the prior fee-to-trust, two-part determination, and EIS decisions. Alternative A in the final EIS, also referred to as the Preferred Alternative, analyzed the development of single casino with a single “247,180 square foot gaming and entertainment facility. . . .” [AR00000175; see also AR00000242 (describing the Tribe’s proposed project to include a single casino with a 68,150 square foot casino floor).] The original compact upon which the Department’s earlier decisions were based authorized the Tribe to “engage in Class III gaming only on eligible Indian lands held in trust for the Tribe at a single Gaming Facility located within the boundaries of the 305-Acre Parcel,” and to operate 2000 slot machines. [AR00000340 (emphasis added).] In contrast, the Secretarial Procedures authorize the Tribe to “establish and operate not more than two Gaming Facilities . . . located within the boundaries of the Madera Parcel [AR00002204 (emphasis added)] and to operate up to 2500 slot machines after the first two years. [AR00002203.] 3 As stated above, the mediator selected the North Fork Tribe’s proposed compact. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 11 of 41 4847-3511-1495 - 5 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 On August 12, 2016, Stand Up for California! (“Stand Up”) submitted separate requests to the Department of the Interior and Bureau of Indian Affairs under the Freedom of Information Act (“FOIA”) requesting documents related to the Secretarial Procedures [Statement of Undisputed Fact (“SUF”) Nos. 1-2.] In these requests, Stand Up sought “[c]opies of all communications to or from the North Fork Rancheria of Mono Indians or its representatives relating to the development of the Secretarial Procedures” and “[c]opies of all communications to or from the State of California or its agencies or representatives relating to the development of the Secretarial Procedures.” [SUF Nos. 1-2.] On August 15, 2016, BIA responded by email verifying receipt of the FOIA request. [SUF No. 3.] On August 16, 2016, the Department responded by letter, stating that it believed the requested information would be found within the BIA, which would respond directly to Stand Up. [SUF No. 4.] On October 10, 2016, Stand Up sent a follow up letter to the BIA, requesting an update as to the status of its August 12th FOIA request. [SUF No. 5.] On October 21, 2016, the BIA responded by email, stating that the BIA FOIA office had assigned Stand Up’s request to its FOIA Coordinator. [SUF No. 6.] To date, the BIA has not provided any records requested by Stand Up and has not stated whether it has or will produce any of the records requested. [SUF Nos. 7-9.] I. STANDARD OF REVIEW Stand Up brings its claims under IGRA, the Johnson Act, NEPA, and the Clean Air Act pursuant to the Administrative Procedure Act (“APA”). Under the APA, the district court must set aside and hold unlawful agency actions, findings, and conclusions found to be “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law,” or which have been taken “without observance of procedure required by law.” 5 U.S.C. § 706(2); County of Amador, California v. United States Department of the Interior, 136 F. Supp. 3d 1193, 1198 (E.D. Cal. 2015). Under Federal Rule of Civil Procedure 56, the court may grant summary judgment where it determines that “there is no genuine dispute as to any material fact and the movant is entitled judgment as a matter of law.” In cases under the APA, however, there are generally no disputes as Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 12 of 41 4847-3511-1495 - 6 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 to any material fact because “the court’s review is limited to the administrative record . . . .” Northwest Motorcycle Ass’n v. U.S. Dep’t of Agriculture, 18 F.3d 1468, 1472 (9th Cir. 1994). Accordingly, Stand Up in this memorandum cites to the administrative record for all claims challenging the validity of the Secretarial Procedures and government action undertaken in prescribing the procedures. For Stand Up’s claim under the Freedom of Information Act, however, Stand up cites to its statement of undisputed material facts filed herewith. LEGAL ARGUMENT II. THE SECRETARIAL PROCEDURES ARE SUBJECT TO CHALLENGE UNDER THE APA AS A FINAL AGENCY ACTION The APA provides for judicial review under 5 U.S.C. § 704 of final agency actions, where an agency action “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). “As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quotations and citations omitted). Without the Secretarial Procedures, the North Fork Tribe cannot conduct class III gaming at the Madera Site. IGRA contemplates class III tribal gaming under only three circumstances: (1) pursuant to tribal-state compact “entered into by the Indian tribe and the State under paragraph (3) that is in effect,” 25 U.S.C. § 2710(d)(1)(C); (2) pursuant to a proposed compact selected by the court-appointed mediator, which if consented to by the state “shall be treated as a Tribal-State compact entered into under paragraph (3),” id. § 2710(d)(7)(B)(vi); or (3) pursuant to Secretarial Procedures,” id § 2710(d)(7)(B)(vii). The Secretarial Procedures mark the final federal authorization “under which the North Fork Rancheria of Mono Indians (Tribe) may conduct Class III gaming consistent with IGRA.” [AR00002186.] The Secretary and the Tribe will likely argue that the Secretarial Procedures do not Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 13 of 41 4847-3511-1495 - 7 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 constitute final agency action because the procedures are non-discretionary.4 IGRA provides that if a state refuses to accept the mediator-selected compact, the Secretary “shall prescribe procedures in consultation with the with the Indian tribe . . . which are consistent with the proposed compact selected by the mediator . . ., the provisions of this Act, and the relevant provisions of the laws of the State.” 25 U.S.C. § 2710(d)(7)(B)(vii). Thus, although the Secretary cannot refuse to prescribe procedures, IGRA gives the Secretary discretion, indeed a duty, to ensure that the Secretarial Procedures prescribe gaming that conforms to state and federal law. In this case the Secretary’s adoption of procedures was made through the exercise of considerable discretion: “we have purposefully 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.” [AR00002188.] Yet, the Secretary could not and did not defer entirely to the mediator-selected compact. In the letter transmitting the Secretarial Procedures to the Tribe, the Acting Assistant Secretary noted that the mediator-selected compact contained regulatory responsibilities for the State, but “[s]ince 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.” [AR00002187-88; AR00002245 (Secretarial Procedures Sec. 8.2(a), stating “the Secretary . . . cannot unilaterally obligate the State to carry out those regulatory responsibilities under these Secretarial Procedures”).] 5 To address this problem the Secretary added to the Secretarial Procedures Section 8.2, which “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.” [AR00002188; AR00002245.] If the State did not consent within the 60-day period, the 4 In Picayune Rancheria v. United States Department of the Interior, No. 16-cv-950-AWI-EPG (E.D. Cal., filed July 1, 2016), the North Fork Tribe concedes that in prescribing procedures the Secretary “does have some discretion in setting the content of the procedures . . . .” [Request for Judicial Notice, Attachment 1 at 38 (emphasis in original).] But distinguishing between the Secretary’s discretion in setting content and his lack of discretion in prescribing the procedures is irrelevant to the issue before this Court, because the content of the procedures marks the final Departmental determination for what gaming will be authorized at the site and how that gaming will be regulated. 5 Obligating the state to regulate gaming without consent would violate the anti-commandeering doctrine. See Printz v. U.S., 521 U.S. 898, 935 (1997) (holding that the federal government cannot compel states to enact or administer a federal regulatory program). Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 14 of 41 4847-3511-1495 - 8 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Secretarial Procedures provided for the National Indian Gaming Commission to undertake the State’s regulatory responsibilities. Id. Effecting this change to the mediator-selected compact required the exercise of considerable discretion. IGRA’s requirement that the Secretary “shall prescribe” procedures cannot therefore be read to eliminate Secretarial discretion where, as here, the Secretary must decide how and by whom gaming will be regulated.6 For these reasons, the Secretarial Procedures are final agency action subject to APA review. III. THE SECRETARIAL PROCEDURES VIOLATE IGRA AND THE JOHNSON ACT The Secretarial Procedures are invalid because they purport to authorize gaming at the Madera Site to include the use of slot machines. Under the Johnson Act, “It shall be unlawful . . . to sell, transport, possess, or use any gambling device . . . within Indian country as defined in section 1151 of title 18 . . . .” 15 U.S.C. § 1175(a). The Johnson Act considers slot machines to be gambling devices. Id. at § 1171(a)(1). IGRA, however, provides that the Johnson Act “shall not apply to any gaming conducted under a Tribal-State compact that-- (A) is entered into under paragraph (3) by a State in which gambling devices are legal, and (B) is in effect.” 25 U.S.C. § 2710(d)(6). No such compact exists here. The Johnson Act waiver does not mention Secretarial Procedures, nor does the provision authorizing the Secretary to prescribe procedures refer to the Johnson Act. 25 U.S.C. § 2710(d)(7)(B)(vii). Despite the plain language of the Johnson Act, section 4.1 of the Secretarial Procedures purports to authorize the North Fork Tribe to operate 2,000 gaming devices for the first two years and 2,500 gaming devices for the remainder of its term. [AR00002203.] The Secretarial Procedures defines “gaming device” to be “any slot machine within the meaning of article IV, 6 IGRA provides for state regulation through compacts only. The State of California, however, authorizes State regulation of class III Indian gaming only pursuant to a compact ratified by the Legislature. Cal. Const., art IV, § 19(f). And the people of California expressly rejected the compact by referendum. Nonetheless, regardless of the legality under federal or state law, in prescribing procedures, the Secretary had to determine precisely how and by whom gaming would be regulated. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 15 of 41 4847-3511-1495 - 9 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 section 19, subdivision (f) of the California Constitution.” [AR00002198.] The Madera Site is Indian country as defined in 18 U.S.C. § 1151. Despite that section 1151(a) does not refer to trust land, the Supreme Court has held that Indian trust land is considered Indian country under that section. Oklahoma Tax Com’n v. Sac and Fox Nation, 508 U.S. 114, 124 (1993). Moreover, under IGRA, Indian land upon which gaming can be authorized is defined to include lands held in trust for a tribe. 25 U.S.C. § 2703(4)(B).7 But the State of California and the Tribe have no compact. North Fork, 2015 WL 11438206 at *12. Therefore, the operation of slot machines at the Madera Site is prohibited by the Johnson Act, and the Secretary’s issuance of the procedures, which allow slot machine gaming in violation of the Johnson Act, is not in accordance with law. 5 U.S.C. § 706(2)(A). In interpreting IGRA, courts in this Circuit rely on “traditional tools of statutory construction” Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir. 1994). “The plain meaning of legislation should be conclusive, except in rare cases which the literal interpretation will produce a result demonstrably at odds with the intention of its drafters.” Id. (internal quotation marks omitted) (citing United States v. Ron Pair Enters, 489 U.S. 235 (1989)). The court will not resort to the legislative history unless the statute is ambiguous. Id. Finally, “although statutes benefiting Native Americans are construed liberally in their favor, [the court] will not rely on this factor to contradict the plain language of a statute.” Id. A. Under IGRA’s plain meaning, the Johnson Act waiver does not apply to Secretarial Procedures The language of IGRA’s Johnson Act waiver could not be plainer. A tribe may operate slot machines on Indian land only under a tribal-state compact that (1) is “entered into under paragraph (3),” and (2) “is in effect.” 25 U.S.C. § 2710(d)(6) (emphasis added). Because the North Fork Tribe has not entered into a compact with the State that is in effect under IGRA, the 7 Stand Up does not intend this statement to be in anyway contrary to its claims on appeal in the D.C. Circuit that the Secretary lacked the authority to acquire the land in trust. Stand Up for California! v. U.S. Dep’t of the Interior, Case No. 16-5327 (D.C. Cir., appeal filed Oct. 31, 2016). Pending a decision in that case, and as long as the land remains in trust, however, Stand Up does not dispute that the Madera Site is Indian country. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 16 of 41 4847-3511-1495 - 10 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 waiver does not apply to gaming at the Madera Site. As the United States Supreme Court has stated, “Congress passed § 2710(d)(3) in conjunction with the carefully crafted and intricate remedial scheme set forth in § 2710(d)(7).”8 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73-74 (1996). The Court further stated that “[w]here Congress has created a remedial scheme for the enforcement of a federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary.” Id. at 74. Under these principles, in construing section 2710(d)(3) together with the “carefully crafted and intricate” section 2710(d)(7), it is clear that Congress intended for the Johnson Act waiver to apply only to compacts “entered into” under section 2710(d)(3) or compacts selected by a mediator and consented to by the state under section 2710(d)(7)(vi). See Am. Bankers Ass’n v. Gould, 412 F.3d 1081, 1086 (9th Cir. 2005) (holding that the plain meaning of the words in a statute must be determined in “context and with a view to their place in the overall statutory scheme”). Section 2710(d)(3) (“paragraph 3”) does the following: (1) provides that a tribe having jurisdiction over Indian lands can request of the state to negotiate to enter into a compact and requires the state to negotiate in good faith; (2) provides that any compact entered into by the state and tribe takes effect only when the Secretary publishes the approval in the Federal Register; and (3) limits the topics that can be the subject of negotiation. For a tribe to qualify for Secretarial Procedures, the tribe must initiate the remedial process by first introducing evidence in district court that “a Tribal-State compact has not been entered into under paragraph (3).” 25 U.S.C. § 2710(d)(7)(B)(ii)(I) (emphasis added). If the Tribe is successful and the state still refuses to negotiate after a finding of bad faith and the parties submit separate proposed compacts to the mediator, the state can still consent to the mediator-selected compact. If the state consents to the proposed compact selected by the mediator, “the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (3).” Id. § 2710(d)(7)(B)(vi) (emphasis 8 In holding that 25 C.F.R. Part 291 violated the clear language of IGRA’s remedial scheme, the 10th Circuit recently stated, “Indeed, [IGRA’s] remedial process is so specific and detailed as to merge on the mechanical.” State of New Mexico v. Dep’t of the Interior, --- F.3d ----, 2017 WL 1422365 at *12 (10th Cir. Apr. 21, 2017). Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 17 of 41 4847-3511-1495 - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 added). In the remedial scheme, the proposed compact selected by the mediator is not a “compact entered into under paragraph (3)” because it was not negotiated and agreed to by the parties, and its existence is the result of the tribe’s successful showing in district court that the state did not enter into such a compact. Congress, however, added specific language to clarify that a mediator- selected compact, if consented to by the state, “shall be treated as” a compact that was entered into under paragraph (3). This language acknowledges Congress’s express intent that the Johnson Act waiver apply to a mediator-selected compact consented to by the State, notwithstanding that it is not a compact entered into under paragraph (3). Thus in IGRA’s remedial scheme, Congress knew how to ensure the Johnson Act waiver applied where intended. As to that intent, it is further clear that the waiver applies in situations where the state agreed to a compact or consented to a mediator-selected compact, either of which provides for at least some measure of state approval of slot machine operation. In contrast, Secretarial Procedures evidence a complete lack of state agreement to a compact or consent to a mediator-selected compact. But Congress did not provide that Secretarial Procedures “shall be treated as a compact entered into under paragraph (3),” as it did where a state consents to a mediator-selected compact. See Bates v. United States, 522 U.S. 23, 29–30 (1997) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). Not only is the “shall be treated as a compact” language absent from the Secretarial Procedures provision, but the regulatory context is also different. A tribe games under Secretarial Procedures only where the state has refused to agree to regulate gaming under a compact or to consent to regulate gaming under a mediator-selected compact. Additional evidence that Congress distinguished between compacts entered into under paragraph (3) and Secretarial Procedures can be found in section 23 of IGRA, codified at 18 U.S.C. § 1166, which provides that “all state laws pertaining to the licensing, regulation, or Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 18 of 41 4847-3511-1495 - 12 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 prohibition of gambling . . . shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State.” 18 U.S.C. § 1166(a). As IGRA does with the Johnson Act, IGRA also waives Section 23 for class III gaming conducted pursuant to a tribal- state compact, but not Secretarial Procedures. Id. § 1166(c)(2)). Finally, reading IGRA’s plain language to require the Secretary to adhere to the Johnson Act does not lead to a situation where the plain language interpretation is “demonstrably at odds with the intention of its drafters.” Rumsey, 64 F.3d at 1257. The drafters wanted state approval of slot machines, which can occur only pursuant to a compact. The language Congress used in 25 U.S.C. §§ 2710(d)(1), 2710(d)(3), and 2710(d)(7), in conjunction with the language in 18 U.S.C. § 1166, demonstrates that Congress privileged compacts over Secretarial Procedures and did not consider Secretarial Procedures a straight and equal substitute for a compact. Congress provided that Tribes may conduct class III gaming “only if . . . conducted in conformance with a Tribal State Compact.” 25 U.S.C. 2710(d)(1)(C) (emphasis added). To encourage states to enter into compacts, Congress gave states three separate opportunities to do so. Id. § 2710(d)(3) (negotiating and entering a compact to be approved by the Secretary); id. § 2710(d)(7)(B)(iii) (60 days for state to negotiate and enter into compact after district court finds failure to negotiate in good faith); id. § 2710(d)(7)(B)(vi) (60 days for state to consent to mediator-selected compact). Secretarial Procedures are a “second best” alternative. As discussed above, where a state has declined all three of these opportunities, Congress did not provide that this second best alternative “shall be treated as a tribal-state compact entered into under paragraph (3).” Compare 25 U.S.C. §§ 2710(d)(7)(B)(vi), 2710(d)(7)(B)(vii). The plain language of IGRA not only provides for a more limited authorization of gaming under Secretarial Procedures, but the more limited authorization is consistent with, and does not conflict with, Congress’s preference for state approval of slot machines. Accordingly, the Secretary abused his discretion by issuing procedures that authorize the Tribe to operate slot machines and violate the Johnson Act. The resulting Secretarial Procedures must be held unlawful and set aside. 5 U.S.C. § 706(2)(A). Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 19 of 41 4847-3511-1495 - 13 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 B. Nothing in IGRA’s legislative history contradicts the plain meaning of the Johnson Act waiver The plain meaning of IGRA’s Johnson Act waiver is unambiguous; the waiver does not apply to Secretarial Procedures. The Court should not therefore look into the legislative history. Rumsey, 64 F.3d at 1257. Nonetheless, the legislative history of IGRA confirms the plain meaning interpretation discussed above. See Schroeder v. United States, 793 F.3d 1080, 1085 (9th Cir. 2015) (“[T]he plainer the language, the more convincing contrary legislative history must be.”) Congress’s rationale for the tribal-state compact as the mechanism for approving slot machines is consistent with interpreting IGRA to limit class III gaming where the state declines to enter into a compact. In California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), the Supreme Court held that states had the authority to enforce their gaming laws on Indian land only if the laws prohibited gaming outright as a matter of criminal law and did not merely regulate gaming. Id. at 208. In response to Cabazon, Congress enacted IGRA to provide “a comprehensive regulatory framework for gaming activities on Indian lands which seeks to balance the interests of tribal governments, the states, and the federal government.” Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1548 (10th Cir. 1997). In determining how IGRA would regulate Indian gaming, Congress recognized that, despite the Cabazon decision, “there is no adequate Federal regulatory system in place for class III gaming, nor do tribes have such systems for the regulation of class III gaming currently in place.” S. REP. NO. 100-446, at 13 (1988). Faced with that problem, Congress’s “logical choice [was] to make use of existing State regulatory systems.” Id. at 13-14. The mechanism Congress chose to make use of state regulatory systems was the tribal-state gaming compact. Id. at 6. Consistent with Congress’s intent to use existing state regulatory systems to govern tribal gaming, IGRA waives application of the Johnson Act only in states that approve slot machines in a compact. 25 U.S.C. 2710(d)(6)(A). At the time of IGRA’s enactment slot machines were illegal in most states, including California as discussed below. In 1988, it was not likely that slot Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 20 of 41 4847-3511-1495 - 14 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 machines would be a significant part of the compacting process at all. In California, at the time of IGRA’s enactment, banked and percentage card games and slot machines were illegal under state law. Rumsey, 64 F.3d at 1256. Based on this prohibition, the Ninth Circuit held that the State of California was not required to negotiate with Tribes for these types of games. Id. at 1260. Indeed, prior to the enactment of Proposition 1A in 2000, the Legislature was expressly prohibited by Article IV, section 19(e), of the California Constitution from ratifying compacts authorizing banked and percentage card games and slot machines. Cal. Const., art. IV, § 19(e) (“The Legislature has no power, and shall prohibit, casino of the type currently operating in Nevada and New Jersey.”); see also Hotel Employees and Restaurant Employees Int’l Union v. Davis, 21 Cal.4th 585, 589 (1999). Thus, prior to the enactment of Proposition 1A, a tribe could not operate slot machines or banked and percentage card games regardless of whether it conducted gaming under a compact or Secretarial Procedures. After the enactment of Proposition 1A, and over a decade after IGRA’s enactment, the legal landscape of Indian gaming in California changed and tribes could operate banked and percentage card games and slot machines pursuant to a tribal state compact. Cal. Const., art IV, § 19(f). The Ninth Circuit has held that even though section 19(f) depends upon the state and tribe entering into a compact, the section provides “law—independent from the compact itself— that ‘permits such gaming’ in certain circumstances.” Artichoke Joes California Grand Casino v. Norton, 353 F.3d 712 , 721 (9th Cir. 2003) (quoting 25 U.S.C. § 2710(d)(1)(B)). In 1988, the Johnson Act waiver would have been relevant only to the few states that allowed slot machines. One of those states was Nevada, and the legislative history specific to the Johnson Act waiver arises from concerns specific to Nevada. In debating S. 555, the bill that would become IGRA, Senator Harry Reid of Nevada raised questions regarding the Johnson Act waiver to the bill’s sponsor Senator Daniel Inouye, Chairman of the Select Committee on Indian Affairs: “Would the chairman please confirm this Senator’s understanding that the limited waiver is the only respect in which S. 555 would modify the scope and effect of the Johnson Act?” [Request for Judicial Notice, Attachment 4 (134 Cong. Rec. 23883, at 24024 (1988) (emphasis Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 21 of 41 4847-3511-1495 - 15 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 added)).] Senator Inouye responded that Senator Reid’s interpretation was correct, and the waiver applies only to compacts: “The bill is not intended to amend or otherwise alter the Johnson Act in any way.” Id. At least one scholar has interpreted Senator Reid’s inquiry, and his opposition during the hearings on S. 555 to any expansion of Indian gaming, as motivated to protect existing Nevada gaming interests by confirming that tribes could not offer slot machines in competition with those interests without state approval. Robert N. Clinton, Enactment of the Indian Gaming Regulatory Act of 1988: The Return of the Buffalo to Indian Country or Another Federal Usurpation of Tribal Sovereignty, 43 Ariz. St. L J. 17, 89 (2010). Taken together, Congress’s intent to employ state regulatory systems, the general illegality of slot machines under state laws when IGRA was enacted, and the exchange between Senators Inouye and Reid demonstrate that Congress did not envision the operation of slot machines as particularly relevant to Indian gaming outside of Nevada. Nor did Congress envision the operation of slot machines without the state agreeing or consenting to a compact. But to the extent Congress lacked the prescience to understand that slot machines would become central features of Indian gaming in states such as California, it is Congress’s place to change IGRA, not the Court’s. See Seminole Tribe, 517 U.S. at 74. This is especially so where, as discussed above, the plain language clearly limits the application of the Johnson Act waiver to compacts. IV. THE SECRETARY VIOLATED NEPA IN ISSUING THE SECRETARIAL PROCEDURES NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for “major actions significantly affecting the quality of the environment.” 42 U.S.C. § 4332(2)(C). Federal regulations provide that an agency planning a major federal action can first conduct an Environmental Assessment (“EA”) to determine if an EIS is necessary. 40 C.F.R. §§ 1501.4, 1508(a)(1). If after conducting the EA, the agency finds the action will not significantly impact the environment, “the agency may issue a finding of no significant impact . . . and then execute the action.” Sierra Club v. Babbitt, 65 F.3d 1502, 1505 (9th Cir. 1995). Whether an EIS is Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 22 of 41 4847-3511-1495 - 16 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 ultimately necessary or not, where a major action may impact the quality of the environment, the agency is required to at least initiate the NEPA process before taking the action. Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996). Additionally, NEPA requires public involvement in the process. 40 C.F.R. § 1506.6. And where an EIS is required, “no action concerning the proposal shall be taken” which would have an adverse environmental impact or limit the choice of reasonable alternatives until the agency issues a public record of decision. 40 C.F.R. § 1506.1(a). Here, the Secretary failed to prepare an EA or an EIS; nor was the public involved in any part of the process. Rather than a record of decision, the Secretary merely informed the Tribe by letter that the procedures had been issued and were in effect. [AR00002186-88.] A. Prescribing Secretarial Procedures is a major federal action significantly affecting the quality of the environment The NEPA regulations define a major federal action to include: “actions with effects that may be major and which are potentially subject to Federal control and responsibility . . . [Actions include] [a]pproval of specific projects, such as construction of management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.” 40 C.F.R. § 1508.18. In this Circuit, “ if a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute a major federal action and the federal agency involved must conduct and EA and possibly an EIS before granting it.” Ramsey, 96 F.3d at 444 (emphasis added). Here, the Secretarial Procedures are analogous to a permit because the Tribe cannot conduct class III gaming at the Madera Site without authorization under the Secretarial Procedures. 25 U.S.C. § 2710(d)(7)(B)(vii). Moreover, the development and operation of the casino will have adverse impacts on the environment, as recognized by the Secretary in connection with his two-part determination and fee-to-trust transfer. [AR00000160-161.] In his Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 23 of 41 4847-3511-1495 - 17 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 prior decisions granting the North Fork Tribe’s two-part determination and fee-to-trust transfer, the Secretary prepared an EIS that found the casino project would have significant impacts on the environment. [AR00000184 (traffic, problem gambling); AR00000187 (cumulative impacts).] This previous EIS fails to satisfy the Secretary’s NEPA obligations in connection with the Secretarial Procedures for two independent reasons. First, the Secretary expressly disclaimed any reliance on the prior EIS. In the letter transmitting the Secretarial Procedures to the Tribe, the Secretary stated that the procedures constitute an agency action “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.” [AR00002188] As the administrative record does not contain the final EIS issued in conjunction with the previous decisions, it is also clear that the Secretary did not consider the Secretarial Procedures covered by any previous environmental review under NEPA. See Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (“The ‘whole’ administrative record . . . consists of all documents and materials directly or indirectly considered by the agency decision-makers and includes evidence contrary to the agency’s position.”). Second, the Secretarial Procedures approved a larger casino project than that analyzed in connection with the earlier two-part determination and fee-to-trust transfer. In the 2011-2012 decisions, Alternative A, the “Preferred Alternative,” was the development of single casino with a single “247,180 square foot gaming and entertainment facility. . . .” [AR00000175.] The Secretarial Procedures, by contrast provide federal authorization for the Tribe to “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. . . .” [AR00002204.] This is a major expansion of the Tribe’s proposed casino development because contrary to the project analyzed as Alternative A in the final EIS, the new authorization contains no limitations or even suggestions as to the size of each authorized facility. Id. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 24 of 41 4847-3511-1495 - 18 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Moreover, the design of the newly authorized project would change the environmental analysis in relation to issues such as traffic, law enforcement, and problem gambling. The Secretary recognized that the project approved by the Secretarial Procedures may have environmental impacts beyond those analyzed in the earlier EIS. Indeed, in Section 11.1 of the Secretarial Procedures, the Secretary required that before the commencement of any Project at the Madera Site, “other than the Preferred Alternative” described in the 2009 final EIS, “the Tribe shall cause to be prepared a comprehensive and adequate tribal environmental impact report (TEIR) analyzing the potentially significant off-reservation environmental impacts of the Project . . . .” [AR00002264.] The TEIR requirement appears in the Secretarial Procedures in much the same form as it did in the 2012 compact [AR00000407-14], but relevant to NEPA’s requirements, the context is quite different. In the 2012 compact, the TEIR was the result of an agreement between the Tribe and the State, should the Tribe decide to make alterations to the previously approved facility at the Madera Site. Such a provision was no doubt important to the State because once the land became Indian land it would be removed from State jurisdiction and thus exempt from the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code, § 21000 et seq. The Secretarial Procedures, by contrast, provide federal authorization for two gaming facilities at the site, the environmental consequences of which have not been considered. NEPA requires that such consequences be considered before the approval. Ramsey, 96 F.3d at 444. Moreover, NEPA does not permit federal agencies to delegate NEPA decisions and compliance to the project applicants. 40 C.F.R. § 1506.5(a); see also Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291, 1319 (W.D. Wash. 1994) (“Agencies may not delegate the responsibility of preparing an EIS to private parties.” (citing 40 C.F.R. § 1506.5(a))); see also 40 C.F.R. § 1506.5(b) (providing for independent agency determination and oversight of EA prepared by applicant). Therefore the delegation of the Secretary’s obligation under NEPA to the Tribe to complete after authorization is insufficient, and the Secretarial Procedures must be set aside. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 25 of 41 4847-3511-1495 - 19 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 B. The Secretarial Procedures invoke secretarial discretion sufficient to require NEPA review The Secretary will no doubt argue that he did not need to comply with NEPA because he lacked discretion not to prescribe the Secretarial Procedures and his action could not therefore be the cause on any environmental effect as a consequence of the procedures. See Department of Transp. v. Public Citizen, 541 U.S. 752 (2004). IGRA, indeed, requires the Secretary to do so if the state does not agree to the mediator-selected compact. 25 U.S.C. § 2710(d)(7)(B)(vi). But at issue here is the discretion the Secretary maintains in developing the specific provisions within the Secretarial Procedures. It is this discretion that brings the Secretarial Procedures within NEPA’s purview. Indeed, as the Supreme Court held in Public Citizen, NEPA is inapplicable only where an agency has “‘no ability’ to take actions that could lessen the environmental impacts of concern to the plaintiffs.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 104 (D.D.C. 2006) (quoting Public Citizen, 541 U.S. at 766). IGRA does not reduce the Secretary’s duties to the merely ministerial. In prescribing procedures, the Secretary must “consult[] with the Indian tribe” and ensure the procedures are “consistent with the proposed compact selected by the mediator . . . , the provisions of this Act, and the relevant provisions of the laws of the State . . . .” 25 U.S.C. § 2710(d)(7)(B)(vii)(I). Pursuant to IGRA, the Secretary was not required to authorize two gaming facilities at the Madera Site. Indeed, the previous decisions to take the land into trust and authorize gaming under a two-part determination considered only a single gaming facility at the Madera Site. [AR00000175; AR00000242.] The Tribe had also agreed to gaming at a single facility in the compact the Secretary previously approved. [AR00000340.] Nor was the Secretary required to increase the number of slot machines from 2000 to 2500. Rather, as discussed above, he was required to remove authorization for the operation of any slot machines from the Secretarial Procedures. Additionally, and as discussed above, in prescribing the procedures, the Secretary maintained the provisions from the proposed compact granting the State of California limited regulatory authority over gaming and gave the State 60-days to agree to these duties or the Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 26 of 41 4847-3511-1495 - 20 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 National Indian Gaming Commission (NIGC) would undertake them. [AR00002245.] The Secretary clearly exercised significant discretion in delineating the regulatory duties under the compact. Whether the Secretary has sufficient discretion here presents a similar problem to the one raised in Natural Resources Defense Council, Inc. v. Berklund, 458 F. Supp. 925 (D.D.C. 1978). In Berklund, plaintiffs sought a declaration that the Secretary of Interior had discretion to reject “preference right leasing applications” and must prepare an environmental impact statement on any proposed issuance of a preference right coal lease where issuance would constitute a major federal action significantly affecting the environment. Id. at 928. The district court granted in part and denied in part plaintiffs’ motion for summary judgment. The court found that contrary to the plaintiffs’ contention the Secretary lacked any discretion to reject a preference right coal lease where the applicant had satisfied certain statutory obligations. Id. at 937. Nonetheless, the court further found that the Secretary was still required to prepare an EIS on the proposed issuance of such a lease. The court reasoned that while the Secretary is required to issue the lease to qualified applicants and has no discretion to reject it, the Secretary has considerable discretion in determining the terms of the lease. Moreover, in prescribing the terms of the lease, the Secretary would benefit from the preparation of an EIS. Id. at 938. Here, while IGRA requires the Secretary to prescribe procedures, the Secretary had significant discretion in the determining the terms of the procedures, particularly terms that undeniably could affect the quality of the environment. Accordingly, the Secretary was required to comply with NEPA before issuing the procedures. V. THE SECRETARY VIOLATED THE CLEAN AIR ACT BY ISSUING THE SECRETARIAL PROCEDURES Section 176 of the Clean Air Act, 42 U.S.C. § 7506(c), provides that “no department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under section 7410 Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 27 of 41 4847-3511-1495 - 21 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 of this title.” “[A]ssurance of conformity to such an implementation plan” is an “affirmative responsibility of the head of such department, agency, or instrumentality.” Id. The United States Environmental Protection Agency (“US EPA”) has promulgated regulations to implement this mandate. 40 C.F.R. §§ 93.150-93.165; 42 U.S.C. § 7506(c)(4)(A). The issuance of the Secretarial Procedures constitutes the support and approval of an activity by a department, agency, and instrumentality of the federal government, which is subject to the conformity requirements of section 176. As discussed above, the Secretarial Procedures are a major federal action providing approvals necessary to enable the North Fork Tribe to develop and construct a casino for class III gaming at the Madera Site. Without the Secretarial Procedures, the Tribe would not be allowed to conduct class III gaming at the Madera Site. The Madera Site is located within the San Joaquin Valley Air Basin, which is a nonattainment area to which section 176 and the conformity determination requirements apply. [Request for Judicial Notice, Attachment 3 at NF_AR_0039194-195.] Development, construction, and operation of the casino will result in the emission of air pollutants for which the San Joaquin Air Basin is not in attainment, and for which a conformity determination is required. Id. The Secretary recognized that development, construction, and operation of a casino requires a conformity determination by preparing a conformity determination for his determination to take the Madera Site into trust for the purpose of the Tribe’s conduct of class III gaming pursuant to Section 20 of IGRA (25 U.S.C. § 2719(b)(1)(A)). [Id. at NF_AR_0039195.] Here, defendants did not prepare a conformity determination or otherwise comply with section 176 and the US EPA regulations promulgated thereunder in connection with the Secretarial Procedures. Nor did defendants purport to rely on the conformity determination previously prepared in connection with defendants’ determination to take the Madera Site into trust for the purpose of the Tribe’s conduct of class III gaming pursuant to Section 20 of IGRA (25 U.S.C. § 2719(b)(1)(A)). As discussed above, in issuing the Secretarial Procedures, defendants expressly clarified that their action was “separate from the Departmental decision made years ago requesting the Governor’s concurrence to allow gaming on the subject parcel as Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 28 of 41 4847-3511-1495 - 22 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 well as the subsequent decision made in 2012 to accept that parcel into trust.” [AR00002188.] Most importantly, the scope of the project approved under the Secretarial Procedures is larger and different from the scope of the project for which the prior conformity determination was approved. As discussed above, the Preferred Alternative in the final EIS for which the conformity determination was initially done considered only a single gaming facility at the Madera Site. [AR00000175; AR00000242.] In contrast, the Secretarial Procedures authorized the Tribe to operate two gaming facilities on the 305-acre site. [AR00002204.] Additionally, the Secretarial Procedures authorized an increase in the number of slot machines. [AR00002203.] Accordingly, any increase in emissions as the result of the expansion of gaming would not “occur in the absence of federal action.” See 40 C.F.R. 93.153(b); see also Public Citizen, 541 U.S. at 772 (stating that an agency must comply with Section 176 where it “practicably controls” emissions). But the administrative record is devoid of any analysis or discussion to demonstrate compliance with section 176 of the Clean Air Act. See County of Amador, 136 F. Supp. 3d at 1198(stating that role of the court is determine whether the “agency action is supported by the administrative record” and is not “‘arbitrary, capricious, an abuse of discretion or otherwise not accordance with law’” (quoting 5 U.S.C. § 706(2))). Even if defendants had relied on the conformity determination prepared in connection with defendants’ determination to take the Madera Site into trust for the purpose of the Tribe’s conduct of class III gaming pursuant to Section 20 of IGRA (25 U.S.C. § 2719(b)(1)(A)), such reliance would have been insufficient, because the prior conformity determination is out of date with the US EPA requirements for conformity determinations made at the time of the Secretarial Procedures. See 40 C.F.R. § 93.159(b) (requiring conformity analysis to be based upon “the latest and most accurate emission estimation techniques available”). The final conformity determination was issued June 17, 2011. [Request for Judicial Notice, Attachment 3 at NF_AR_0039188.] The most current version of the motor vehicle emissions model specified by the US EPA and available for use in preparation or revision of state implementation plans in California is EMFAC2011, which was approved by US EPA in March, 2013. See Official Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 29 of 41 4847-3511-1495 - 23 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Release of EMFAC2011 Motor Vehicle Emission Factor Model for Use in the State of California, 78 Fed. Reg. 14533 (March 6, 2013). The conformity determination was based upon EMFAC2007, which was approved by the US EPA on January 18, 2008. See Official Release of EMFAC2007 Motor Vehicle Emission Factor Model for Use in the State of California, 73 Fed. Reg. 3464 (January 18, 2008). Such failures were arbitrary, capricious, abuses of discretion, without observance of procedure required by law, and not in accordance with law. Accordingly, the Secretarial Procedures must be held unlawful and set aside. VI. THE SECRETARIAL PROCEDURES VIOLATE IGRA BECAUSE THE GOVERNOR’S CONCURRENCE IN THE TWO-PART DETERMINATION IS INVALID In plaintiffs’ fifth claim for relief in this action, plaintiffs assert that the Secretarial Procedures are invalid because the Governor of California lacked authority to concur in the Secretary’s two-part determination under 25 U.S.C. § 2719(b)(1)(A), and therefore the Madera Site is not eligible for tribal gaming under IGRA. [Dkt. 13 ¶¶68-73.] This claim hinges on whether the Governor of California had authority to concur in the Secretary’s two-part determination – an issue that is currently before the California Supreme Court. United Auburn Indian Community of the Auburn Rancheria v. Brown, Case No. S238544 (review granted Jan. 25, 2017) and Stand Up for California! v. State of California, Case No. S239630 (review granted Mar. 22, 2017). 9 Plaintiff Stand Up for California! prevailed on this issue in the California Court of Appeal. Stand Up for California v. State of California, 6 Cal. App. 5th 686 (2016) (review granted Mar. 22, 2017, Case No. S239630) (“Stand Up v. California”). But California’s Third District Court of Appeal had reached the opposite conclusion in United Auburn Indian Community v. Brown, 4 Cal. App. 5th 36 (2016) (review granted Jan. 25, 2017, Case No. S238544) (“United Auburn”). 9 Briefing is currently underway in United Auburn. Action in Stand Up for California! has been deferred pending a disposition in United Auburn. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 30 of 41 4847-3511-1495 - 24 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 The California Supreme Court has granted review in both cases, and its decision should resolve the issue pivotal to plaintiffs’ fifth claim for relief in this action – i.e., whether the Governor of California had authority to concur in the Secretary’s two-part determination. Plaintiffs have filed a motion to stay this action pending the California Supreme Court’s decision. As discussed below, the California Supreme Court is likely to rule in Stand Up’s favor, and such a decision would require judgment from this Court invalidating the Secretarial Procedures. A. The Secretarial Procedures must be invalidated if the California Supreme Court holds that the Governor lacked authority to concur in the Secretary’s two-part determination Under IGRA, the Secretary may issue Secretarial Procedures for tribal gaming only on land that is eligible for tribal gaming. 25 U.S.C. § 2719(a) (prohibiting gaming on trust land acquired after October 17, 1988). Because the Madera Site was made eligible for gaming by the Secretary under IGRA’s two-part determination, the Secretary’s determination was subject to the valid concurrence of the Governor. 25 U.S.C. § 2719(b)(1)(A). The Governor’s concurrence provision of IGRA is an example of “contingent legislation” whereby Congress expressly provides a condition under state law that must be met before a federal statutory provision can take effect. Confederated Tribes of Siletz v. United States, 110 F.3d 688, 695 (9th Cir. 1997). “[T]he Governor must agree that gaming should occur on the newly acquired trust land before gaming can in fact take place.” Id. at 696. Whether the Governor’s concurrence was authorized and valid is a matter of state law – not federal law. Id. at 697-98. And this precise issue — whether the Governor’s concurrence was authorized and valid under California law — is now under consideration by the California Supreme Court. If the California Supreme Court holds that the Governor had authority to concur in the Secretary’s two-part determination, then plaintiffs’ Fifth Claim for Relief in this action will fail. If, however, the California Supreme Court holds that the Governor did not have authority to concur in the Secretary’s two-part determination, then plaintiffs will prevail on their Fifth Claim Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 31 of 41 4847-3511-1495 - 25 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 for Relief in this action. The district court in Stand Up for California! v. U.S. Dep’t of the Interior (Stand Up v. DOI), 204 F. Supp. 3d. 212 (D.D.C. 2016), held that although the Governor’s concurrence is a separate IGRA requirement independent of the two-part determination, “gaming on land acquired in trust by the Secretary after October 17, 1988 is contingent upon the Governor’s concurrence.” Id. at 249-50. Therefore, if the Governor never had the authority to concur under state law, there has never been a valid concurrence issued for the Madera Site, and the Secretarial Procedures cannot, under IGRA, authorize gaming. In Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997), the Governor of New Mexico had entered into compacts with several New Mexico tribes. Id. at 1548. The compacts had been approved by the Secretary and published in the Federal Register. Id. at 1550. Subsequent to the compacts’ approvals and publication, however, the Supreme Court of New Mexico held that the Governor lacked the authority under state law to enter compacts with Indian tribes. Id. at 1548. In light of that decision, the 10th Circuit held that because IGRA requires a compact to be properly entered into by a state, under the laws of the state, before it can go into effect under federal law, the Secretary’s approval of the compact and publication in the Federal Register could not cure the Governor’s ultra vires actions. Id. at 1548, 1553. In reaching this decision, the court considered and rejected the argument that the compact should be treated as valid because the Secretary was under no obligation to inquire into the vagaries of state law when he approved the compacts: Congress did not intend to force the Secretary to make extensive inquiry into state law to determine whether the person or entity signing the compact for the state in fact had the authority to do so. However that does not mean that consequences should not flow, such as a determination that the compact is invalid, if it turns out that the state has not validly bound itself to the compact. Id. at 1557 (emphasis added). Thus despite that the Secretary was not required to assess the validity of the compact before approving it, “[t]he Secretary cannot, under [IGRA], vivify that which was never alive . . . .” Id. at 1548. The compacts were therefore invalid under federal law. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 32 of 41 4847-3511-1495 - 26 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 The same is true here. IGRA expressly provides that gaming cannot occur on newly acquired trust land unless and until the Governor concurs in the Secretary’s determination. 25 U.S.C. § 2719(b)(1)(A). When the Governor concurs, he does so as the state executive under state law. Confederated Tribes of Siletz, 110 F.3d at 697-98. Therefore, if Governor Brown never had the authority under state law to issue the concurrence, the concurrence was void ab initio, and the Secretary never had the authority under IGRA to give effect to the concurrence and authorize gaming. In briefing before this Court in Picayune Rancheria of Chukchansi Indians v. United States Department of the Interior, No. 1:16-cv-00950-AWI-EPG (E.D. Cal., filed July 1, 2016) (“Picayune”), the Tribe and the federal defendants have argued that the legal status of the concurrence under state law can have no effect on the validity of the Secretarial Procedures under federal law because the Secretary was entitled to rely on the validity of the concurrence. [Request for Judicial Notice, Attachment 1 (Picayune Dkt. 26 at 40-42; Attachment 2 (Picayune Dkt. 29 at 42-44).] This argument, however, ignores that in prescribing procedures the Secretary must ensure that the procedures “are consistent with . . . the relevant provisions of the laws of the State . . . .” 25 U.S.C. § 2710(d)(7)(vii). While the Secretary may not have a duty to inquire into state law in approving a compact under IGRA, see Pueblo of Santa Ana v. Kelly, 104 F.3d at 1557, the same cannot be said for the Secretary’s obligations in prescribing procedures, which expressly require the Secretary to consider state law. Despite IGRA’s affirmative requirement for the Secretary to consider state law and ensure procedures are prescribed consistent with that law, the Tribe argued, “The Ninth Circuit has established that federal officials need not second-guess the facially valid actions of state officials.” [Request for Judicial Notice, Attachment 1 (Picayune Dkt. 26 at 40).] This is an overbroad statement of the law and inapplicable to IGRA. The cases the Tribe and federal defendants rely on to argue the Secretary is not required to consider state law are the so-called “retrocession” cases involving the actions of the federal government to reclaim jurisdiction over Indian tribes from several states. These cases held that Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 33 of 41 4847-3511-1495 - 27 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 the Secretary’s acceptance of retrocession jurisdiction from the state to the federal government occurred legally despite the invalidity of the state actions under state law. See United States v. Lawrence, 595 F.2d 1149 (9th Cir. 1979); Oliphant v. Schlie, 544 F.2d 1007 (9th Cir. 1976), rev’d on other grounds, 435 U.S. 191 (1978); United States v. Brown, 334 F. Supp. 536, 540 (D. Neb. 1971). Notably, neither the Secretary nor the Tribe cited the 10th Circuit’s decision in Pueblo of Santa, which specifically addressed IGRA’s use of contingent legislation and held that “the retrocession cases involve different considerations from this case, and do not control this case.” Pueblo of Santa, 104 F.3d at 1556 n. 12. These different considerations are made clear by contrasting the statutory language and purposes of the two statutes. The retrocession statute provides only that “[t]he United States is authorized to accept retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State . . . .” 25 U.S.C. § 1323(a). “Retrocession does not imply any particular procedure or action on the part of the states involved.” Brown, 334 F. Supp. at 540. As the Ninth Circuit held in Oliphant, the question of retrocession “is one of federal law, not state law.” Oliphant, 544 F.2d at 1012 (emphasis added). “The federal government, having plenary power over the Indians, had the power to prescribe any method or event desired to trigger its own re- assumption of control over Indian affairs within a state. In fact, the triggering event could have been devoid of any mention of state action at all.” Id. Once the United States accepted retrocession jurisdiction, all actions arising out of the acquired jurisdiction fell to the federal government. IGRA, by contrast, conceives of Indian gaming as a joint venture among the federal government, an Indian tribe, and a state. Artichoke Joes California Grand Casino v. Norton, 353 F.3d 712, 715 (9th Cir. 2003) (“IGRA is an example of ‘cooperative federalism’ in that it seeks to balance the competing sovereign interests of the federal government, state governments, and Indian tribes, by giving each a role in the regulatory scheme.”) In this venture, IGRA expressly incorporates and relies on state law. Tribal-state compacts must be validly entered into under Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 34 of 41 4847-3511-1495 - 28 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 state law before they can go into effect under IGRA. 25 U.S.C. § 2710(d)(1)(C); Pueblo of Santa Ana, 104 F.3d at 1553. In the absence of a compact, IGRA requires that state laws apply to gaming on Indian land, 18 U.S.C. § 1166(a), but those state laws must be enforced by the federal government. Id. § 1166(d). IGRA requires the Secretary in prescribing Secretarial Procedures to ensure that they are consistent with the laws of the state. 25 U.S.C. § 2710(d)(7)(vii). IGRA requires the Governor’s concurrence in a two-part determination, but does not provide the Governor with the authority to concur; thus, IGRA relies on state law for that authority.10 Confederated Tribes of Siletz, 110 F.3d at 693. IGRA’s concurrence provision was adopted to give states some measure of control over the most controversial form of Indian gaming—off reservation Indian gaming under a two-part determination. As one federal district court held, “The meaning of § 2719(b)(1)(A) is unmistakably clear: Congress made the state’s interests paramount by granting the Governor veto power of the DOI’s determination.” Confederated Tribes of Siletz Indians v. U.S., 841 F. Supp. 1479, 1491-92 (D. Or. 1994), aff’d on other grounds, 110 F.3d 688 (9th Cir. 1997) (emphasis added). And as Congress did with the tribal-state compact requirement, it expressly conditioned gaming under a two-part determination on state action by the state executive, who must issue the concurrence under state law, not federal law. See 25 U.S.C. § 2719(b)(1)(A); Confederated Tribes of Siletz, 110 F.3d at 693. For these reasons, if the California Supreme Court holds that Governor Brown lacked the authority to concur, the Secretarial Procedures must be invalidated because the Secretary never had the authority to authorize gaming at the Madera Site. B. There is sufficient reason to conclude that the California Supreme Court will hold Governor Brown lacked the authority to concur under State law. In United Auburn Indian Community v. Brown, 4 Cal. App. 5th 36 (2016), the California 10 In the Picayune briefing the Tribe argues that “IGRA, like the retrocession statute, ‘does not imply any particular procedure or action on the part of the states involved.’” [Request for Judicial Notice, Attachment 1 (Picayune Dkt. 26 at 42) (quoting Oliphant, 544 F.2d at 1012).] By way of explanation, the Tribe suggests that the concurrence provision is directed at the Governor not at the state so no state action is expressly required or implied. This argument ignores that the Governor must have the authority to concur and that authority must come from state law. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 35 of 41 4847-3511-1495 - 29 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Court of Appeal, Third District, held “[t]he act of concurring . . . is in the nature of an executive act because it involves the implementation of California’s existing gaming policy.” Id. at 51. While the Third District noted that California’s existing gaming policy is governed by Article IV, Section 19, of the State Constitution, id. at 52, it neglected to address significant features of Section 19. Most importantly, Section 19(e) prohibits the Legislature from authorizing Las Vegas-style casino gambling in the state. Section 19(f) is a limited exception to this prohibition and grants the Legislature the power to ratify compacts notwithstanding Section 19(e). As to the Governor, section 19(f) grants limited authority to negotiate compacts. This limited authority is subject to ratification of the Legislature and is not, therefore, binding on the State, as a concurrence is. In Stand Up v. California, Justice Detjen noted “United Auburn makes no reference to [the] history or . . . implication” of “California’s constitutional ban on the legislative authority to authorize gaming and the later amendment granting limited powers to the Governor . . . .” Stand Up v. California, 6 Cal. App. 5th at 720 (Detjen, J., concurring and dissenting). Justice Franson agreed: “I note the Third District did not address whether an inherent executive power to concur conflicts with the ban on casinos in subdivision (e) of section 19 of article IV of the California Constitution.” Id. at 769. (Franson, J., concurring and dissenting) (emphasis in original). Nor did the Third District address whether on the facts of North Fork, as distinguished from Enterprise, the Governor’s inherent authority, which was exercised for the purpose of class III gaming under a compact, could validate a concurrence after the electorate rejected the compact. Id. Despite concluding that the concurrence was within California’s existing gaming policy, the United Auburn court neither cited Section 19(e) nor discussed the fact that Section 19, in its entirety, expressly and strictly limits the actions of both the Legislature and the Governor. As Justice Franson held, and the Third District failed to consider, “[t]he faithful execution of this general prohibition [in Section 19(e)] cannot extend to acts that would have the effect of expanding casino-type gambling in California unless such acts are authorized elsewhere in the Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 36 of 41 4847-3511-1495 - 30 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Constitution. Id. at 768 (Franson, J., concurring and dissenting) (emphasis in original). In other words, “the field of casino-type gambling in California has been fully occupied by the provisions of Section 19 of article IV of the California Constitution and the authority for any state action that furthers casino-type gambling in California must be rooted in subdivision (f) of the Section 19 of article IV.” Id. Section 19(f) does not authorize concurrences, which have the practical effect of authorizing gaming on land where gaming is prohibited under Section 19(e).11 Additionally, in concluding that the concurrence was an executive action within the Governor’s authority, the Third District relied on the decision by the Court of Appeals for the Seventh Circuit in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 367 F.3d 650 (7th Cir. 2004). United Auburn, 4 Cal. App. 5th at 51-52. But as the Fifth District’s decision recognized, Lac Courte does not govern here. Indeed, two of the Fifth District justices explicitly rejected United Auburn’s reliance on Lac Courte. Justice Smith held that Lac Courte was inapposite, as it held “only that the concurrence provision does not violate the federal Constitution because it does not force governors to usurp state legislative authority by making public policy.” Stand Up v. California 6 Cal. App. 5th at 703 (Smith, J., lead opinion) (citing Ginns v. Savage 61 Cal.2d 520, 524 n. 2 (1964) (“[A]n opinion is not authority for a proposition not therein considered.”)). Justice Detjen held “United Auburn’s reliance on Lac Courte to conclude concurring has an executive characteristic under California law is misplaced” because, as discussed above, United Auburn failed to address California’s general prohibition of Las Vegas-style gambling and the very limited authority granted to the Governor by Section 19(f). Id., at 720 (Detjen, J. concurring and dissenting). Any inquiry in Lac Courte was confined to Wisconsin law. There is no substance to the Tribe’s contention that because none of the Fifth District theories “commanded a majority” the decision is “not a reliable datum for ascertaining state law.” 11 The California Constitution authorizes gaming on Indian land in California. Cal. Const., art. IV, § 19(f). But it is undisputed that at the time the Governor issued his concurrence, the land was not Indian land. Until it became so, it was land governed by Section 19(e) rather than Section 19(f). See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 367 F.3d 650, 657 (7th Cir. 2004) (holding that at the time of the concurrence, the land is “within the jurisdiction of a state and is not yet subject to federal regulation under IGRA”). Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 37 of 41 4847-3511-1495 - 31 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 [Request for Judicial Notice, Attachment 1 (Picayune Dkt. 26 at 47 (internal quotation marks and citation omitted).] Rather, a majority of the court concluded that the Third District’s decision mischaracterized and misapplied California law by, among other things, failing to place the concurrence in the context of Article IV, Section 19, and by relying on a case from another jurisdiction that did not purport to address the issue at hand. Certainly, the California Supreme Court will inquire into these infirmities. VII. THE FEDERAL AGENCY DEFENDANTS VIOLATED THE FREEDOM OF INFORMATION ACT When an agency receives a FOIA request, it must “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination.” 5 U.S.C. § 552(a)(6)(A)(i). Under certain “unusual circumstances,” the agency can inform the requestor that it is extending the response period by up to ten days. Id. § 552(a)(6)(B)(i). “‘If the agency does not make a determination within the relevant statutory time period, the requester may file suit without exhausting administrative appeal remedies.’” Brown v. U.S. Customs and Border Protection, 132 F. Supp. 3d 1170, 1172 (N.D. Cal. 2015) (quoting Citizens for Responsibility and Ethics in Washington v. FEC (CREW), 711 F.3d 180, 185 (D.C. Cir. 2013)). Courts in this Circuit have held that “an agency’s failure to respond to a FOIA request within the statutory time limits violates FOIA and allows the aggrieved party to sue. Id. at 1173; Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982) (“unreasonable delays in disclosing non-exempt documents violate the intend and purpose of the FOIA, and the courts have a duty to prevent these abuses.”). “Once a lawsuit is filed, ‘FOIA imposes no limits on the court’s equitable powers in enforcing its terms.’” Id. (quoting Payne Enterprises, Inc. v. United States, 837 F.2d 486, 494 (D.C. Circ. 1988). When an agency has “repeatedly shirked its statutory responsibility to respond fully to plaintiffs’ FOIA requests within the timeframe set by Congress,” plaintiffs are entitled to Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 38 of 41 4847-3511-1495 - 32 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 a declaratory judgment. South Yuba River Citizens League v. National Marine Fisheries Serv., 2008 WL 2523819 at *6 (E.D. Cal. June 20, 2008). Additionally, plaintiffs are also entitled to injunctive relief to compel the agency to respond to the requests. Id. at *17. Here, it is undisputed that the federal defendants failed to respond to Stand Up’s FOIA request and the failure persisted despite Stand Up’s follow up attempt to get a response. [SUF Nos. 7-9.] Following Stand Up’s initial request dated August 12, 2016, to which federal defendants did not respond, Stand Up sent a follow-up letter on October 10, 2016, requesting an update on the status of its request. [SUF No. 5.] While BIA has communicated with Stand Up attorneys on two occasions regarding Stand Up’s FOIA request [SUF Nos. 3, 6], these limited communications are insufficient as a determination required by the statute because the communications have not included any statements concerning any documents BIA has reviewed or the scope of the documents to be produced. Nor has BIA provided any notice of appeal rights. BIA has been silent about what documents it will produce or when it will produce them. See CREW, 711 F.3d at 188 (holding a “determination” within the meaning of the statute requires that the agency must, at a minimum, “(i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the ‘determination’ is adverse.”) Accordingly, this Court should issue a declaratory judgment that the federal defendants violated FOIA and order the federal defendants to produce the requested documents. CONCLUSION For the foregoing reasons, the Court should grant Stand Up’s motion for summary judgment, and enter judgment in favor of plaintiffs, holding unlawful and setting aside the Secretarial Procedures. Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 39 of 41 4847-3511-1495 - 33 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Dated: May 12, 2017 SNELL & WILMER L.L.P. By:/s/ Sean M. Sherlock Sean M. Sherlock Attorneys for Plaintiffs Stand Up For California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God – Madera, and Dennis Sylvester Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 40 of 41 4829-7499-3736 2:16-CV-02681-AWIEPG CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 CERTIFICATE OF SERVICE I hereby certify that on May 12, 2017, the attached document MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was electronically transmitted to the Clerk of the Court using the CM/ECF System which will send a Notice of Electronic Filing to the following CM/ECF registrants: Joseph Nathanael Watson joseph.watson@usdoj.gov US Department of Justice, Enrd/IRS Christopher Edmunds Babbitt christopher.babbitt@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr, LLP Danielle Mary Spinelli, PHV danielle.spinelli@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr, LLP Dated: May 12, 2017 SNELL & WILMER L.L.P. By: /s/ Kimberly A. Collins Kimberly A. Collins Case 2:16-cv-02681-AWI-EPG Document 29 Filed 05/12/17 Page 41 of 41 4818-5428-8197.1 PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Sean M. Sherlock, SBN 161627 ssherlock@swlaw.com SNELL & WILMER L.L.P. 600 Anton Blvd, Suite 1400 Costa Mesa, California 92626-7689 Telephone: 714.427.7000 Facsimile: 714.427.7799 Heidi McNeil Staudenmaier (pro hac vice) hstaudenmaier@swlaw.com SNELL & WILMER L.L.P. 400 E. Van Buren Street, Suite 1900 Phoenix, Arizona 85004 Telephone: 602.382.6000 Facsimile: 602.382.6070 Attorneys for Plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God – Madera and Dennis Sylvester Jennifer A. MacLean (pro hac vice) jmaclean@perkinscoie.com PERKINS COIE LLP 700 13th Street, N.W., Suite 600 Washington, DC 20005-3960 Telephone: 202-434-1648 Facsimile: 202-654-6211 Brian Daluiso, SBN 287519 bdaluiso@perkinscoie.com PERKINS COIE LLP 11988 El Camino Real, Suite 350 San Diego, California 92130 Telephone: 858-720-5781 Facsimile: 858-720-5799 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA STAND UP FOR CALIFORNIA!, 7911 Logan Lane, Penryn, California 95663 RANDALL BRANNON, 26171 Valerie Avenue, Madera, California 93638; MADERA MINISTERIAL ASSOCIATION, 17755 Road 26, Madera, California 93638; SUSAN STJERNE, 24349 Tropical Drive, Madera, California 93638; FIRST ASSEMBLY OF GOD – MADERA, 22444 Avenue 18 ½, Madera, California 93637; and DENNIS SYLVESTER, 18355 Road 25, Madera, California 93638, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, 1849 C Street, N.W., Washington, D.C. 20240; Case No. 2:16-CV-02681 AWI EPG [Related Cases: 16-cv-950-AWI and 1:15-cv-00419-AWI] Hon. Anthony W. Ishii, Ctrm. 2 Mag. Judge Erica P. Grosjean, Ctrm. 10 PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT Complaint Filed: November 11, 2016 Case 2:16-cv-02681-AWI-EPG Document 29-1 Filed 05/12/17 Page 1 of 5 4818-5428-8197.1 - 2 - PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 SARAH MARGARET ROFFEY JEWELL, in her official capacity as Secretary, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; BUREAU OF INDIAN AFFAIRS, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; LAWRENCE ROBERTS, in his official capacity as Principal Deputy Assistant Secretary, Bureau of Indian Affairs, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240, Defendants. TO THE COURT, AND TO ALL PARTIES AND THEIR COUNSEL OF RECORD, PLEASE TAKE NOTICE, that pursuant to Federal Rule of Civil Procedure 56, Local Rule 260, and this Court’s Order Setting Briefing Schedule on Cross-Motions for Summary Judgment [Doc. 23], plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God - Madera, and Dennis Sylvester, move this Court for an order granting summary judgment in their favor, and against defendants and intervenor-defendant, on the following claims in plaintiffs’ First Amended Complaint [Doc. 13]: 1. First Claim for Relief, for violation of the Johnson Act, 15 U.S.C. §1171 et seq., the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §2701 et seq., and Administrative Procedure Act (“APA”), 5 U.S.C. §551 et seq., on the ground that defendants’ issuance of Secretarial procedures (the “Secretarial Procedures”) for the conduct of Class III gaming by intervenor-defendant the North Fork Rancheria of Mono Indians (the “North Fork Tribe”) is arbitrary and capricious, in excess of statutory jurisdiction, authority, or limitations, not in accordance with law, and without observance of procedure required by law (5 U.S.C. §706(2)), because the Secretarial Procedures purport to authorize the North Fork Tribe to operate up to 2,500 slot machines in violation of the Johnson Act (5 U.S.C. §1175(a)), and the Johnson Act Case 2:16-cv-02681-AWI-EPG Document 29-1 Filed 05/12/17 Page 2 of 5 4818-5428-8197.1 - 3 - PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 waiver created under IGRA, 25 U.S.C. §2710(d)(6), is inapplicable in the absence of a tribal-state compact. 2. Second Claim for Relief, for violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §4321 et seq., and the APA, on the ground that defendants’ issuance of the Secretarial Procedures is arbitrary and capricious, in excess of statutory jurisdiction, authority, or limitations, not in accordance with law, and without observance of procedure required by law (5 U.S.C. §706(2)), because issuance of the Secretarial Procedures is a major federal action that could significantly affect the quality of the environment, and defendants did not prepare any detailed statement or otherwise comply with the requirements of NEPA, 42 U.S.C. §4332, in connection with the issuance of the Secretarial Procedures. 3. Third Claim for Relief, for violation of the Clean Air Act, 42 U.S.C. §7401 et seq., and the APA, on the ground that defendants’ issuance of the Secretarial Procedures is arbitrary and capricious, in excess of statutory jurisdiction, authority, or limitations, not in accordance with law, and without observance of procedure required by law (5 U.S.C. §706(2)), because defendants did not prepare a conformity determination or otherwise comply with the requirements of section 176 of the Clean Air Act, 42 U.S.C. §7506(c), in connection with the issuance of the Secretarial Procedures. 4. Fourth Claim for Relief, for Violation of the Freedom of Information Act (“FOIA”), 5 U.S.C. §552, on the ground that defendants the Department of the Interior (the “Department”) and the Bureau of Indian Affairs (the “Bureau”) have failed to produce any records or otherwise meaningfully respond to plaintiff Stand Up for California!’s FOIA request dated August 12, 2016. 5. Fifth Claim for Relief, for violation of the IGRA and the APA, on the ground that defendants’ issuance of the Secretarial procedures is arbitrary and capricious, in excess of statutory jurisdiction, authority, or limitations, not in accordance with law, and without observance of procedure required by law, because the Secretarial Procedures purport to permit Class III gaming on land that was wrongly taken into trust under a two-part determination issued Case 2:16-cv-02681-AWI-EPG Document 29-1 Filed 05/12/17 Page 3 of 5 4818-5428-8197.1 - 4 - PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI-EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 under the IGRA, but for which there was no valid concurrence from the Governor of California. Plaintiffs move this Court for judgment holding unlawful and setting aside the issuance of the Secretarial Procedures, and enjoining and restraining defendants and intervenor-defendant from implementing or otherwise acting upon the Secretarial Procedures. Alternatively, plaintiffs move this Court for an order directing defendants United States Department of the Interior and Bureau of Indian Affairs to fully comply with plaintiff Stand Up for California’s FOIA requests, and staying consideration of the merits of plaintiffs’ other claims pending such compliance and further briefing if necessary. This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, Statement of Undisputed Facts, Request for Judicial Notice, and Declaration of Sean M. Sherlock, which are filed and served concurrently herewith, and all pleadings and papers filed in this action, including the administrative record lodged in this action [see Doc. 26], and such other and further matters as the Court may consider. Dated: May 12, 2017 SNELL & WILMER L.L.P. Sean M. Sherlock Heidi McNeil Staudenmaier PERKINS COIE LLP Jennifer A. MacLean Brian Daluiso By: /s/ Sean M. Sherlock Sean M. Sherlock Attorneys for Plaintiffs Stand Up For California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God – Madera, and Dennis Sylvester Case 2:16-cv-02681-AWI-EPG Document 29-1 Filed 05/12/17 Page 4 of 5 4829-7499-3736 2:16-CV-02681-AWIEPG CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 CERTIFICATE OF SERVICE I hereby certify that on May 12, 2017, the attached document PLAINTIFFS’ NOTICE OF MOTION FOR SUMMARY JUDGMENT was electronically transmitted to the Clerk of the Court using the CM/ECF System which will send a Notice of Electronic Filing to the following CM/ECF registrants: Joseph Nathanael Watson joseph.watson@usdoj.gov US Department of Justice, Enrd/IRS Christopher Edmunds Babbitt christopher.babbitt@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr, LLP Danielle Mary Spinelli, PHV danielle.spinelli@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr, LLP Dated: May 12, 2017 SNELL & WILMER L.L.P. By: /s/ Kimberly A. Collins Kimberly A. Collins Case 2:16-cv-02681-AWI-EPG Document 29-1 Filed 05/12/17 Page 5 of 5 4819-5019-9368 STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Sean M. Sherlock, SBN 161627 ssherlock@swlaw.com SNELL & WILMER L.L.P. 600 Anton Blvd, Suite 1400 Costa Mesa, California 92626-7689 Telephone: 714.427.7000 Facsimile: 714.427.7799 Heidi McNeil Staudenmaier (pro hac vice) hstaudenmaier@swlaw.com SNELL & WILMER L.L.P. 400 E. Van Buren Street, Suite 1900 Phoenix, Arizona 85004 Telephone: 602.382.6000 Facsimile: 602.382.6070 Attorneys for Plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God – Madera and Dennis Sylvester Jennifer A. MacLean (pro hac vice) jmaclean@perkinscoie.com PERKINS COIE LLP 700 13th Street, N.W., Suite 600 Washington, DC 20005-3960 Telephone: 202-434-1648 Facsimile: 202-654-6211 Brian Daluiso, SBN 287519 bdaluiso@perkinscoie.com PERKINS COIE LLP 11988 El Camino Real, Suite 350 San Diego, California 92130 Telephone: 858-720-5781 Facsimile: 858-720-5799 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA STAND UP FOR CALIFORNIA!, 7911 Logan Lane, Penryn, California 95663 RANDALL BRANNON, 26171 Valerie Avenue, Madera, California 93638; MADERA MINISTERIAL ASSOCIATION, 17755 Road 26, Madera, California 93638; SUSAN STJERNE, 24349 Tropical Drive, Madera, California 93638; FIRST ASSEMBLY OF GOD – MADERA, 22444 Avenue 18 ½, Madera, California 93637; and DENNIS SYLVESTER, 18355 Road 25, Madera, California 93638, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, 1849 C Street, N.W., Washington, Case No. 2:16-CV-02681 AWI EPG [Related Cases: 16-cv-950-AWI and 1:15-cv-00419-AWI] Hon. Anthony W. Ishii, Ctrm. 2 Mag. Judge Erica P. Grosjean, Ctrm. 10 PLAINTIFFS’ STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Complaint Filed: November 11, 2016 Case 2:16-cv-02681-AWI-EPG Document 29-2 Filed 05/12/17 Page 1 of 6 4819-5019-9368 - 2 - STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 D.C. 20240; SARAH MARGARET ROFFEY JEWELL, in her official capacity as Secretary, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; BUREAU OF INDIAN AFFAIRS, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; LAWRENCE ROBERTS, in his official capacity as Principal Deputy Assistant Secretary, Bureau of Indian Affairs, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240, Defendants. Pursuant to Local Rule 260(a), plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God - Madera, and Dennis Sylvester submit this Statement of Undisputed Facts in support of plaintiffs’ motion summary judgment. This statement includes the undisputed facts related only to plaintiffs’ claim under the Freedom of Information Act (“FOIA”). The remainder of plaintiffs’ claims are brought pursuant to the Administrative Procedures Act, and all citations to facts related to plaintiffs’ APA claims are to the administrative record or to plaintiffs’ concurrently filed Request for Judicial Notice. SUF No. Plaintiffs’ Statement of Undisputed Facts and Supporting Evidence Defendants’ Response 1. On August 12, 2016, plaintiff Stand Up for California! submitted a FOIA request to the Department of the Interior (“DOI”) requesting the following documents: “Copies of all communications to or from North Rancheria of Mono Indians or its representatives relating to the development of the Secretarial Case 2:16-cv-02681-AWI-EPG Document 29-2 Filed 05/12/17 Page 2 of 6 4819-5019-9368 - 3 - STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Procedures.” and “Copies of all communications to or from the State of California or its agencies or representatives relating to the development of the Secretarial Procedures.” Supporting Evidence: Declaration of Sean M. Sherlock in Support of Plaintiffs’ Motion for Summary Judgment (“Sherlock Decl.”), ¶ 3, Ex. 1. 2. On August 12, 2016, plaintiff Stand Up for California! submitted a FOIA request to the Bureau of Indian Affairs requesting the following documents: “Copies of all communications to or from North Rancheria of Mono Indians or its representatives relating to the development of the Secretarial Procedures.” and “Copies of all communications to or from the State of California or its agencies or representatives relating to the development of the Secretarial Procedures.” Supporting Evidence: Sherlock Decl., ¶ 4, Ex. 2. 3. On August 15, 2016, BIA, by email, verified receipt of Stand Up for California!’s FOIA request. Supporting Evidence: Sherlock Decl., ¶ 5, Ex. 3 4. On August 16, 2016, Stand Up for 4. Case 2:16-cv-02681-AWI-EPG Document 29-2 Filed 05/12/17 Page 3 of 6 4819-5019-9368 - 4 - STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 California! received a letter from the DOI, stating that it believed the requested information would be found within the BIA, which would respond directly to Stand Up for California!. Supporting Evidence: Sherlock Decl., ¶ 6, Ex. 4. 5. On October 10, 2016, Stand Up for California! sent a follow up letter to BIA, requesting an update as to the status of its August 12th FOIA request. Supporting Evidence: Sherlock Decl., ¶ 7, Ex. 5. 6. On October 21, BIA responded by email, stating that the BIA FOIA office had assigned Stand Up for California!’s request to its FOIA Coordinator. Supporting Evidence: Sherlock Decl., ¶ 8, Ex. 6. 7. To date Stand Up for California! has not received any written response to its FOIA request from the DOI, other than the DOI’s August 16, 2016, response. Supporting Evidence: Sherlock Decl., ¶ 9. 8. To date Stand Up for California! has not received any written response to its FOIA request from the BIA, other than the BIA’s August 15 and October 21, 2016, responses. Supporting Evidence: Sherlock Decl., ¶ 10. Case 2:16-cv-02681-AWI-EPG Document 29-2 Filed 05/12/17 Page 4 of 6 4819-5019-9368 - 5 - STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 9. To date Stand Up for California! has not received any records from the DOI or BIA in response to its FOIA requests. Supporting Evidence: Sherlock Decl., ¶ 11. Dated: May 12, 2017 SNELL & WILMER L.L.P. Sean M. Sherlock Heidi McNeil Staudenmaier PERKINS COIE LLP Jennifer A. MacLean Brian Daluiso By: /s/ Sean M. Sherlock Sean M. Sherlock Attorneys for Plaintiffs Stand Up For California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God – Madera, and Dennis Sylvester Case 2:16-cv-02681-AWI-EPG Document 29-2 Filed 05/12/17 Page 5 of 6 4829-7499-3736 2:16-CV-02681-AWIEPG CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 CERTIFICATE OF SERVICE I hereby certify that on May 12, 2017, the attached document PLAINTIFFS’ STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was electronically transmitted to the Clerk of the Court using the CM/ECF System which will send a Notice of Electronic Filing to the following CM/ECF registrants: Joseph Nathanael Watson joseph.watson@usdoj.gov US Department of Justice, Enrd/IRS Christopher Edmunds Babbitt christopher.babbitt@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr, LLP Danielle Mary Spinelli, PHV danielle.spinelli@wilmerhale.com Wilmer Cutler Pickering Hale and Dorr, LLP Dated: May 12, 2017 SNELL & WILMER L.L.P. By: /s/ Kimberly A. Collins Kimberly A. Collins Case 2:16-cv-02681-AWI-EPG Document 29-2 Filed 05/12/17 Page 6 of 6 4817-8563-8472 DECLARATION OF SEAN M. SHERLOCK2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 Sean M. Sherlock, SBN 161627 ssherlock@swlaw.com SNELL & WILMER L.L.P. 600 Anton Blvd, Suite 1400 Costa Mesa, California 92626-7689 Telephone: 714.427.7000 Facsimile: 714.427.7799 Heidi McNeil Staudenmaier (pro hac vice) hstaudenmaier@swlaw.com SNELL & WILMER L.L.P. 400 E. Van Buren Street, Suite 1900 Phoenix, Arizona 85004 Telephone: 602.382.6000 Facsimile: 602.382.6070 Attorneys for Plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God – Madera and Dennis Sylvester Jennifer A. MacLean (pro hac vice) jmaclean@perkinscoie.com PERKINS COIE LLP 700 13th Street, N.W., Suite 600 Washington, DC 20005-3960 Telephone: 202-434-1648 Facsimile: 202-654-6211 Brian Daluiso, SBN 287519 bdaluiso@perkinscoie.com PERKINS COIE LLP 11988 El Camino Real, Suite 350 San Diego, California 92130 Telephone: 858-720-5781 Facsimile: 858-720-5799 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA STAND UP FOR CALIFORNIA!, 7911 Logan Lane, Penryn, California 95663 RANDALL BRANNON, 26171 Valerie Avenue, Madera, California 93638; MADERA MINISTERIAL ASSOCIATION, 17755 Road 26, Madera, California 93638; SUSAN STJERNE, 24349 Tropical Drive, Madera, California 93638; FIRST ASSEMBLY OF GOD – MADERA, 22444 Avenue 18 ½, Madera, California 93637; and DENNIS SYLVESTER, 18355 Road 25, Madera, California 93638, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, 1849 C Street, N.W., Washington, D.C. 20240; Case No. 2:16-CV-02681 AWI EPG [Related Cases: 16-cv-950-AWI and 1:15-cv-00419-AWI] Hon. Anthony W. Ishii, Ctrm. 2 Mag. Judge Erica P. Grosjean, Ctrm. 10 DECLARATION OF SEAN M. SHERLOCK IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 1 of 31 4817-8563-8472 - 2 - DECLARATION OF SEAN M. SHERLOCK2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 SARAH MARGARET ROFFEY JEWELL, in her official capacity as Secretary, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; BUREAU OF INDIAN AFFAIRS, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240; LAWRENCE ROBERTS, in his official capacity as Principal Deputy Assistant Secretary, Bureau of Indian Affairs, U.S. Department of the Interior, 1849 C Street, N.W., Washington, D.C. 20240, Defendants. I, Sean M. Sherlock Declare as follows: 1. I make this declaration based upon my personal knowledge of the matters set forth below. 2. I am an attorney and member in good standing of the State Bar of California and am admitted to practice before this Court. I am counsel in this action for plaintiffs Stand Up for California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God - Madera, and Dennis Sylvester. 3. On August 12, 2016, on behalf of plaintiff Stand Up for California!, I prepared and submitted a Freedom of Information Act (“FOIA”) request to the Department of the Interior (“DOI”) requesting documents and records related to the Secretarial Procedures that are the subject of this action. Attached as Exhibit 1 is a true and correct copy of Stand Up for California!’s FOIA request addressed to Clarice Julka, Office of the Secretary FOIA Officer. 4. Also on August 12, 2016, on behalf of Stand Up for California!, I prepared and submitted an identical FOIA request to the Bureau of Indian Affairs (“BIA”). Attached as Exhibit 2 is a true and correct copy of Stand Up for California!’s FOIA request addressed to Daniel Largo Jr., Indian Affairs FOIA Officer. Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 2 of 31 4817-8563-8472 - 3 - DECLARATION OF SEAN M. SHERLOCK2:16-CV-02681 AWI EPG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SN E LL & W IL M E R L .L .P . 60 0 A N T O N B LV D , S U IT E 1 40 0 C O ST A M E SA , C A LI FO R N IA 9 26 26 -7 68 9 5. On August 15, 2016, I received an email from BIA verifying receipt of Stand Up for California!’s FOIA request and informing me that a FOIA control number had been issued. Attached as Exhibit 3 is a true and correct copy of the email from Monique Hartgrove. 6. On August 16, 2016, I received a letter from the DOI stating that the DOI believed the requested information would be found within the BIA, which would respond directly to Stand Up for California!. Attached as Exhibit 4 is a true and correct copy of the letter from Clarice Julka, Office of the Secretary FOIA Officer. 7. As of October 10, 2016, BIA had not responded to Stand Up for California!’s FOIA request. On that day, on behalf of Stand Up for California!, I sent BIA a follow up letter requesting an update as to the status of the August 12th FOIA request. Attached as Exhibit 5 is a true and correct copy of the follow up letter addressed to Daniel Largo Jr., Indian Affairs FOIA Officer. 8. On October 21, BIA responded by email, stating that the BIA FOIA office had assigned Stand Up for California!’s request to its FOIA Coordinator. Attached as Exhibit 6 is a true and correct copy of the email. 9. To date I have not received any written response to Stand Up for California’s FOIA request from the DOI, other than the DOI’s August 16, 2016, response. 10. To date I have not received any written response to Stand Up for California’s FOIA request from the BIA, other than the BIA’s August 15 and October 21, 2016, responses. 11. To date I have not received any records from the DOI or BIA in response to Stand Up for California’s FOIA requests. I declare under penalty of perjury that the foregoing is true and correct. Executed this 12th day of May, 2017, at Costa Mesa, California. /s/ Sean M. Sherlock Sean M. Sherlock Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 3 of 31 EXHIBIT 1 EXHIBIT 1 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 4 of 31 Snell &.Wilnnen DENVER LAS VECA.S LOS ANCELES LOS CABOS ORANGE CÐUNTY PI.{OENIX RENO SAIT LÀKE CITY TUCSON I I n- LAW OFFICES Plaza Tower 600 Anton Boulevard Suite 1400 Costa N4esa, Califomia 92626-7689 714.427.1000 714.427.7799 (Fax) www.swlaw,com Sean M. Sherlock 114-427 -7036 ssherlock@swlaw.com August 12,2016 VIA FEDERAL EXPRESS Clarice Julka Office of the Secretary FOIA Officer MS-7328, MIB 1849 C Street, NW V/ashington, DC 20240 Freedom of Information Act Request Stand Up for California! Dear Ms. Julka: We are writing on behalf of our client, Stand Up for California!, to request that certain documents be provided to Stand Up for California! pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. $ 552 et seq., and pursuant to the Department of the Interior FOIA regulations,43 C.F.R. $ 2.1 et seq. On or around July 29,2016, Mr. Lawrence S. Roberts, Acting Assistant Secretary of Indian Affairs, executed Secretarial Procedures for the North Fork Rancheria of Mono Indians ("Secretarial Procedures") on behalf of the Secretary of the United States Department of the Interior. The following documents related to the Secretarial Procedures are requested: 1. Copies of all communications to or from the North Fork Rancheria of Mono Indians or its representatives relating to the development of the Secretarial Procedures. 3. Copies of all communications to or from the State of California or its agencies or representatives relating to the development of the Secretarial Procedures. If you contend that any of the requested documents are not disclosable in their entirety, we request that you release any material that may be separated and released. For any documents or portions thereof that you contend to be exempt from disclosure, we request that you state with specificity the legal and factual grounds for withholding documents or portions of documents. Pursuant to 43 C.F.R.ç 2.7 and for purposes of fee calculation, my client is an "other requester" as described in $$ 2.38 and 2.39. We ask that the requested information be provided in electronic format and sent to my attention at ssher Re Snell & Wìlmer is a rnember ol LhX \41-rNj)1, The Leading Association of lndepe'rclent l-av/ Firms. 24652295.1 law.com. 'We are Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 5 of 31 Smell &WiTnryaer - L.L.P Clarice Julka Office of the Secretary FOIA Officer August 12,2016 Page2 willing to pay reasonable copy costs of up to $100.00. Should the cost exceed this amount, please advise of the total amount, so that we can revise our request. Thank you for your attention to this request. Best regards, Snell & L.L.P Sean Sherlock 24652295.1 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 6 of 31 EXHIBIT 2 EXHIBIT 2 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 7 of 31 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 8 of 31 Snell &Wiimer L.L f. - Daniel Largo Jr. Indian Affairs FOIA Offrcer August 12,2016 Page2 willing to pay reasonable copy costs of up to $100.00. Should the cost exceed this amount, please advise of the total amount, so that we can revise our request. Thank you for your attention to this request. Best regards, Snell & W L.L.P. Sean M 246s2306.1 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 9 of 31 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 10 of 31 EXHIBIT 3 EXHIBIT 3 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 11 of 31 2016 0815 E BIA to Sherlock att BIA Rcvd Sherlock Req.txt From: Sherlock, Sean Sent: Monday, August 22, 2016 10:59 AM To: DR_COMLIT_OC Cc: Staudenmaier, Heidi McNeil; Hua, Jenny; Merkle, Wendy Subject: FW: Sean M Sherlock Request Attachments: Sean M. Sherlock Request 8.12.2016.PDF Stand Up/North Fork -- corresp From: monique.hartgrove@bia.gov [mailto:monique.hartgrove@bia.gov] On Behalf Of FOIA, BIA Sent: Monday, August 15, 2016 3:23 PM To: Sherlock, Sean Subject: Fwd: Sean M Sherlock Request Please accept this correspondence issued as verification of receipt of your FOIA request by the Indian Affairs Freedom of Information Act Office. Your request has been assigned for processing and direct response. If you have questions concerning your request you may contact the assigned office at: ASSISTANT SECRETARY – INDIAN AFFAIRS (AS-IA) 1849 C Street, NW MS-3629-MIB, Washington, DC 20240 fax: 202.208.5320 Carol Leader Charge FOIA Coordinator carol_leadercharge@ios.doi.gov The FOIA Control number that has been issued to your request is BIA-2016-01845. Please reference this number when communicating with the Bureau of Indian Affairs regarding your request. It is our goal to provide you, our customer, with the best customer service possible! Respectfully, Monique Hartgrove Government Information Specialist US Department of the Interior Office of the Assistant Secretary – Indian Affairs Freedom of Information Act Program 1849 C Street, NW MS 3070 MIB Washington, DC 20240 202.208.4174 (o) 202.208.6597 (f) monique.hartgrove@bia.gov Page 1 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 12 of 31 2016 0815 E BIA to Sherlock att BIA Rcvd Sherlock Req.txt ---------- Forwarded message ---------- From: Garcia, Heather Date: Mon, Aug 15, 2016 at 12:22 PM Subject: Sean M Sherlock Request To: BIA FOIA Hello: please see attachment -- Heather Garcia Government Information Assistant Assistant Secretary - Indian Affairs Freedom of Information Act Office (IA- FOIA) 1849 C Street NW MS-3070-MIB Washington, DC 20240 Phone# (202)208-3508 heather.garcia@bia.gov POSITIVE PEOPLE POWERFUL RESULTS Warning: this email may contain Privacy Act data/sensitive data which is intended only for the use of the individual(s) to whom it is addressed. It may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable laws. If you are not the intended recipient, you are hereby notified that any distribution or copy of this email is strictly prohibited. Page 2 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 13 of 31 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 14 of 31 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 15 of 31 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 16 of 31 EXHIBIT 4 EXHIBIT 4 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 17 of 31 United States Department of the Interior OFFICE OF THE SECRETARY Washington, DC 20240 IN REPLY REFER TO: 7202.4-OS-2016-00421 August 16, 2016 Via email: ssherlock@swlaw.com Sean M. Sherlock Snell & Wilmer 600 Anton Blvd, Ste 1400 Costa Mesa, CA 92626 Dear Mr. Sherlock: On August 12, 2016, you filed a Freedom of Information Act (FOIA) request seeking the following: 1) Copies of all communications to or from the North Fork Rancheria of Mono Indian Affairs or its representatives relating to the development of the Secretarial Procedures. 3) Copies of all communications to or from the State of California or its agencies or representatives relating to the development of the Secretarial Procedures. Your request was received in the Office of the Secretary FOIA office on August 15, 2016, and assigned control number OS-2016-00421. Please cite this number in any future communications with our office regarding your request. We believe that the information that you are seeking will be found within Bureau of Indian Affairs (BIA). We understand that your request was also received by BIA and they will respond directly to you. This completes the Office of the Secretary’s response to your request. If you have any questions about our response to your request, you may contact Cindy Sweeney by phone at 202-513-0765, by fax at 202-219-2374, by email at os_foia@ios.doi.gov, or by mail at U.S. Department of the Interior, 1849 C Street, NW, MS-7328, Washington, D.C. 20240. Sincerely, Clarice Julka Office of the Secretary FOIA Officer Digitally signed by CLARICE JULKA Date: 2016.08.16 13:26:16 -04'00' Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 18 of 31 EXHIBIT 5 EXHIBIT 5 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 19 of 31 Snell &.Wfllrmen L.L.P - DÈNVER LAS VEGAS LOS ANGELÈS LOS CABOS ORANGE COUNTY PÈIOENIX RENO SALT LAKE CITY TIJCSON LAW OFFICES Plaza Tower 600 Anton Boulevard Suite 1400 Costa Mesa, Califomia 97676-7689 714.427.7000 714.477.7799 (Fax) www.swlaw.com Sean M. Sherlock I14-421-7036 ssherlock@swlaw.com October 10,2016 VIA FEDERAL EXPRESS Daniel Largo Jr. Indian Affairs FOIA Off,rcer MS-3070, MIB 1849 C Street, NW Washington, DC 20240 Freedom of Information Act Request Stand Up for California! Dear Mr. Largo: On August 12, 2016, we wrote on behalf of our client, Stand Up for California!, to request that cerlain documents be provided to Stand Up for California! pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. $ 552 et seq., and pursuant to the Department of the Interior FOIA regulations,43 C.F.R. $ 2.1 et seq. For your convenience, a copy of our request is attached hereto as Exhibit 1. 'We concurrently sent the same request to Ms. Clarice Julka, FOIA Officer for the Office of the Secretary of the U.S. Department of the Interior. We have been informed that both requests were received on August 15,2016. The next day, Ms. Julka sent us a response stating that: (1) the DOI believed that the information we are seeking would be found within BIA; and (2) that the BIA would respond directly to our request. Ms. Julka's response is attached hereto as Exhibit 2. Although more than 20 business days have passed, we have not received any response from the BIA or its FOIA offrce. 5 U.S.C. $ 552(aX6)(A). Please let us know status of our request and when we should expect to receive the documents we have requested. Best regards, Snell & L.L.P. Sean Sherlock Re 24997508.1 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 20 of 31 trXHIBIT 1 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 21 of 31 Snell ô,r.Wilnter t..1...n :-- ì)T:NL'ÉR IAS VËüA,S i.'os A¡r'(ìÉ!-!.S LOS Cì\ilOr- cß.1N{.itì c.otiIlTY PHÖEììI}i RLNO SALÍ LåKE Cl T' 't-ttcsLìN LAW OFFICES Illirza'l"owcr 60ù Anton Dc,ulcvard Suite 140û Costa Mcszr, Culifb¡nì a 97.626 -7 689 714.471.7Ð0t 714.427.7799 lFax) ruv¿w.swlarv,cont Sean M. Sherlock 714-42'7-7036 ssherlock@swlaw,com August 12,2016 VIA FEDERAL AXPRESS Daniel Largo Jr. Indian Affairs FOIA Officer MS-3070, MIB 1849 C Street, NW Washington,DC 20240 Re: Freedom of Inþrmøtiott Act Requesl Stand Up for California! Dear Mr. Largo: We are writing on behalf of our client, Stand Up for California!, to ïequest that cerlain docunrents be provided to Stand Up for Californial pursuant to the Freedom of Info*nation Act ("FOIA"), 5 U.S'C. $ 552 et seq., and pursuant to the Department of the lnteriol FOIA regulations,43 C.F.R. $ 2.1 et seq, On or around July 29,2016, Mr. Lawrence S. Roberts, Acting Assistalt Secretary of Indian Affäirs, executed Secretarial Procedures for the North Fork Rancheria of Mono lndians ("Secretarial Procedures") on behalf of the Secretary of the United States Depaftment of the Interiot'. The f-ollowing documents related to the Secretarial Procedures are requestecl: 1. Copies of all cornmunications to or from the North Fork Rancheria of,Mono Indians or its representative.s relating to the development of the Secretarial procedures. 3. Copies of all cornmunications to or from the State of Califonda or its agencies or iepresentatives relating to the development of the Secretarial Procedures. If you contend that any of the requested documents ä'c not disclosable in their e¡tirety, we request that you release any material that may be separated and released. For any documents or portions thereof that you contend to be exempt iiom disclosure, we request that you state with specificity the legal and factual grounds for withholding documents oiportio¡s of ilocunents. Pursuant to 43 C.F.R. $ 2.7 ancl for purposes of fee calculation, my client is a¡ ,.other requester" as described in $$ 2.38 anci 2.39. We ask that tlie requested information be providect in electronic foulat and sent to my atlention at sshe¡lock@swlaw.com- We are 5lìelì &y','ìllfttiti!irÍ)ûìl.rrrrúi i.l,-1il¡i )ììJJ 'iirúl-rlâilirìgA.,srti;¡tirÈûíio,Jcl)(1lriiflt.tl,o,,rl:irrrì1ì. AU6 I 6 20t6 1t 4j{:' Recelvrd 24652,106,1 Case 2:16-cv-02681-AWI-EPG Document 29-3 Filed 05/12/17 Page 22 of 31 Snetrl &.Wilmer LLl.- Daniel Largo Jr. Indian Affairs FOIA Officer August 12,2016 Page2 willing to pay reasonable copy costs of up to $100.00. Should the cost exceed this amount, please advise of the total amount, so that we can revise our request. 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