North Fork tribe’s casino hits new delay after appellate judges reject state agreement

Rendering of the proposed North Fork Rancheria of Mono Indians casino on Highway 99 north of Madera.
Rendering of the proposed North Fork Rancheria of Mono Indians casino on Highway 99 north of Madera. Oakhurst Staff Photo

The North Fork Rancheria of Mono Indians’ plan for a Las Vegas-style casino on a site north of Madera hit another snag when the Fifth District Court of Appeal in Fresno invalidated Gov. Jerry Brown’s authorization to use the land for gaming.

The 113-page decision by a three-judge panel sent the case back to Madera County Superior Court, effectively overruling Judge Michael Jurkovich, who had ruled that Brown properly approved the project.

The case was filed in 2013 by Stand Up for California on behalf of Madera-area residents who objected to approvals by the state Legislature and governor of the casino compact to allow gaming on the 305-acre property west of Highway 99 near Avenue 17.

“The (Madera County) trial court is ordered to vacate its order  and enter a new order overruling” approval of the compact and of the site for gaming by state officials, the appellate decision said.

Lawyers for the North Fork tribe could ask for a review by all judges in the Fifth District Court of Appeal or go to the state Supreme Court in an attempt to overrule the appellate court.

In supporting Stand Up’s appeal, the justices ruled there is no legal authority that supports the governor’s authorization to allow the land to be used for Las Vegas-style slot machines and card games, known as Class III gaming. The three judges issued separate rulings examining different parts of complex federal laws and the role state officials can play.

A key issue in the decision was overwhelming opposition by California voters in 2014 to Proposition 48, which concerned the North Fork compact. Californians rejected the state compact for the Madera-area casino project because it was “off-reservation,” 36 miles from the tribe’s home in the Sierra foothills.

The federal government had put the land into trust for gaming purposes in 2013, months after Brown gave his approval for the compact and location.

I don’t know that it’s well-reasoned and maybe the (state) Supreme Court can sort that out.

Joe Valandra, former National Indian Gaming Commission chief of staff

Associate Justice Jennifer Detjen said the governor should not have negotiated the compact before the land had been put into trust.

“At the time of this tribal-state compact, the 305-acre parcel in Madera was not Indian land,” she wrote.

Other observers say the tribe still could build the casino, since the land is in federal trust for gaming and the federal government approved the tribal compact. But the tribe would need to depend on the financial backers, including Station Casinos, to be willing to take a chance on whether the project still might be shut down.

The tribe also could build a casino without Las Vegas-style gaming, but that would nullify the agreements under the compact in which the tribe would pay Madera County and its nearby cities of Madera and Chowchilla up to $5 million annually.

The proposed casino and hotel resort would have 40 gaming tables, a bingo hall and 2,000 slot machines, about the same size as Chukchansi Gold Resort & Casino in Coarsegold.

Not a compact debate

Last year, a U.S. District Court judge in Fresno ruled that the North Fork compact could move forward even though California voters rejected Proposition 48. The federal judge ordered an arbitrator to choose between a state-supported compact and one from the tribe.

In February, the arbitrator selected the tribe’s compact; Brown had 60 days to reject or support it, or take no action. He opted to take no action, which would allow the compact to go into effect under federal rules known as “secretarial procedures.”

But the appellate judges said the tribe’s compact was not valid because it hadn’t been approved by state officials.

Justice M. Bruce Smith used the word “perverse” to describe the process that resulted in a compact that wasn’t approved by the governor, Legislature or voters.

Sean Sherlock, the Orange County-based lawyer for Stand Up for California, said the judges focused on the most important facts.

“I think the most fundamental and indisputable point is that the governor has no authority under the (state) Constitution” to support putting the land in federal trust, even though he did negotiate the original gaming compact.

I feel very good that we won the argument, but I am always waiting for the next shoe to drop.

Cheryl Schmit, director of Stand Up for California

Sherlock said the ultimate goal is to get the land removed from federal trust for gaming – an unusual move, but it was done previously in New Mexico under similar conditions. He said a separate case opposing the North Fork project in U.S. District Court in Washington, D.C., could lead to the land being taken out of federal trust.

But a former Fresno-area congressman, Rick Lehman, an author of the Indian Gaming Regulatory Act, said the appellate decision should have no effect on the casino project because the federal government already has given the project its blessing.

He said all the legal maneuverings are delay tactics to keep gaming lucrative for other tribes.

“The compact was approved by the secretary of the Interior,” said Lehman, who previously worked as a consultant for the tribe. “It’s kind of moot; the deed to the property was published in the Federal Register and the compact was published in the Federal Register and state law doesn’t control, the secretary of the Interior gave them the compact.”

He added: “I think a lot of tribes will say that you’d better not take away land from the Indians again.”

The state Legislature had approved the governor-negotiated compact, which was rejected by voters in 2014 with Proposition 48. A compact was later approved through the secretary of the Interior’s “secretarial procedure,” which puts a gaming compact by the secretary of the Interior into effect when the state has refused to negotiate in “good faith” under the Indian Gaming Regulatory Act.

No man’s land

The North Fork tribe and the federal government wanted to use the Madera-area land for gaming because the tribe has no land other than an area designated for housing. Any nearby land in the Sierra was considered environmentally sensitive.

North Fork tribal spokesman Charles Banks-Altekruse said the tribe isn’t commenting until it reviews “the key points and implications” of the ruling.

A spokeswoman for Brown’s office said his office is reviewing the appellate decision and would have no immediate comment.

Because the judges took slightly different positions in reaching their conclusions, there seems to be some debate about whether gaming can occur on the property at all.

The judges’ decision makes an already complicated web of Indian gaming law more baffling, said Joe Valandra, a Washington, D.C.-based tribal gaming consultant and former chief of staff for the National Indian Gaming Commission in the George W. Bush administration.

“The Indian Gaming Regulatory Act requires that if it’s in trust and used for gaming, there is a process that the Department of the Interior has to go through and the governor’s concurrence is required when it will be put into trust,” he said.

It’s kind of moot, the deed to the property was published in the Federal Register and the compact was published in the Federal Register and state law doesn’t control.

Rick Lehman, former Valley congressman and Indian Gaming Regulatory act author

After reading the decision, Valandra said it plays right into the hands of North Fork casino opponents.

“It causes a great deal of confusion, which was part of the purpose of Stand Up for California, to slow down or change the process of taking land into trust for gaming purposes,” he said.

He expects North Fork’s lawyers to appeal the case to the state Supreme Court.

“I don’t know that it’s well-reasoned and maybe the (state) Supreme Court can sort that out,” Valandra said.

Valandra said the tribe could still place Class II gaming on the land without needing approval from the state or federal government.

But John Peebles, lawyer for the Picayune Rancheria of Chukchansi Indians, which opposes the North Fork casino plans, said he thinks no gaming can be authorized on the land if the appellate judges’ rulings stand.

Cheryl Schmit, director for Stand Up for California, said all three judges had a slightly different perspective, but all said the governor exceeded his authority.

“I feel very good that we won the argument, but I am always waiting for the next shoe to drop,” she said.

Marc Benjamin: 559-441-6166, @beebenjamin