1 ROB BONTA Attorney General of California 2 SARA J. DRAKE Senior Assistant Attorney General 3 T. MICHELLE LAIRD Supervising Deputy Attorney General 4 JEREMY STEVENS, State Bar No. 313883 TIMOTHY M. MUSCAT, State Bar No. 148944 5 Deputy Attorney General 1300 I Street, Suite 125 6 P.O. Box 944255 Sacramento, CA 94244-2550 7 Telephone: (916) 210-7779 Fax: (916) 323-2319 8 E-mail: Timothy.Muscat@doj.ca.gov Attorneys for Defendants 9 GEORGE FORMAN, State Bar No. 47822 10 FORMAN SHAPIRO & ROSENFELD LLP 5055 Lucas Valley Road 11 Nicasio, CA 94946 Telephone: (415) 491-2310 12 Email: george@gformanlaw.com Attorney for Plaintiff 13 14 15 IN THE UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF CALIFORNIA 17 2:20-cv-01585-AWI-SKO 18 CACHIL DEHE BAND OF WINTUN INDIANS OF THE COLUSA INDIAN STIPULATION FOR GRANTING 19 COMMUNITY, a federally recognized SUMMARY JUDGMENT IN Indian Tribe, PLAINTIFF’S FAVOR AND ORDER 20 REQUIRING PARTIES TO PROCEED Plaintiff, TO THE REMEDIAL PROCESS IN 25 21 U.S.C. § 2710(d)(7)(B)(iii)-(vii) v. 22 23 STATE OF CALIFORNIA, and GAVIN NEWSOM IN HIS OFFICIAL CAPACITY 24 AS GOVERNOR OF CALIFORNIA, 25 Defendants. 26
27 28 1 On July 28, 2022, the Ninth Circuit issued its published decision in Chicken Ranch 2 Rancheria of Me-Wuk Indians v. California (Chicken Ranch), 42 F.4th 1024 (9th Cir 2022). That 3 case involved whether the State of California (State) had failed to negotiate in good faith with 4 five California tribes seeking new tribal-state compacts required by the Indian Gaming 5 Regulatory Act (IGRA), 25 U.S.C. §§ 2710-2712, 18 U.S.C. §§ 1166-1167, in order for the tribes 6 to conduct what IGRA defines as “class III gaming.” The court held that “IGRA strictly limits 7 the topics that states may include in tribal-state Class III compacts to those directly related to the 8 operation of gaming activities.” Chicken Ranch, 42 F.4th at 1029. 9 The Chicken Ranch court ruled that the State failed to engage in good-faith negotiations 10 with five plaintiff tribes under IGRA by insisting on provisions not directly related to the 11 operation of class III gaming activities. The specific provisions addressed by the Ninth Circuit 12 concerned tribal recognition of spousal and child support orders for all gaming facility 13 employees, environmental review and mitigation for a broadly defined set of projects, and broad 14 tort claims coverage. Chicken Ranch, 42 F.4th at 1037-39. The court held that under 25 U.S.C. 15 § 2710(d)(3)(C)(vii), “these family, environmental, and tort law provisions are not ‘directly 16 related to the operation of gaming activities.’” Id. at 1038. 17 Similar to the plaintiff tribes in Chicken Ranch, plaintiff Cachil Dehe Band of Wintun 18 Indians of the Colusa Indian Community, a federally recognized Indian tribe (Colusa), is a former 19 member of the Compact Tribes Steering Committee (CTSC). On August 19, 2014, the CTSC, a 20 coalition of twenty-eight federally recognized California Indian tribes, wrote to inform the State 21 of CTSC’s formation and its desire to begin the negotiation process for new class III gaming 22 compacts. Colusa was a member of CTSC in 2014, and remained a member until July 6, 2020. 23 As such, Colusa shares the same record of negotiations (RON) with the plaintiff tribes in Chicken 24 Ranch from August 19, 2014, through July 6, 2020. 25 Colusa withdrew from negotiations with the State and filed its Complaint for Declaratory 26 and Injunctive Relief (Complaint) on August 7, 2020. (Doc. 1.) The Complaint’s claim for relief 27 alleged that the State failed in its duty to negotiate in good faith under IGRA. (Id. at ¶¶ 27-69.) 28 Regarding this claim in Colusa’s Complaint, on May 26, 2021, Colusa and the State and 1 Governor Gavin Newsom (State Defendants) filed cross-motions for summary judgment. (Docs. 2 34 & 35.) In these motions, the parties disputed whether the State failed in its duty under IGRA 3 to negotiate in good faith. These motions included disputes over whether the State’s proposed 4 provisions regarding tort liability and remedies (Complaint, Count Nine), tribal recognition of 5 employee spousal and child support orders (Complaint, Count Eleven), and environmental review 6 and mitigation (Complaint, Count Thirteen), exceeded the permissible scope of negotiations 7 under IGRA, 25 U.S.C. § 2710(d)(3)(C)(i)-(vii), and thus constituted a failure by the State to 8 negotiate in good faith. In addition, these motions included disputes over other provisions 9 proposed by the State. Some of those provisions were at issue in Chicken Ranch but were not 10 ruled upon by the Ninth Circuit in Chicken Ranch, while other provisions were not specifically at 11 issue in Chicken Ranch. 12 In support of their cross-motions for summary judgment, on May 26, 2021, the parties 13 each filed an identical Joint Statement of Undisputed Facts (JSUF). (Docs. 34-5 & 35-4.) The 14 stipulated facts in the JSUF included facts from the RON based upon CTSC compact negotiations 15 over tort claims coverage (JSUF, Nos. 16, 44, 49, 99, 146, 168, 175 & 199), employee spousal 16 and child support orders (JSUF, Nos. 49-52, 101, 158-59, 170 & 174), environmental review and 17 mitigation (JSUF, Nos. 16, 21, 23, 45, 98, 108, 129, 133 & 164), and the other provisions at issue 18 in the cross-motions for summary judgment (e.g., JSUF, Nos. 16, 21, 23-24, 26, 29, 36, 39-42, 19 45-47, 49-52, 58, 76, 78, 85 & 101). 20 While Colusa and the State Defendants’ cross-motions for summary judgment remain 21 pending before the Court, the Ninth Circuit’s Chicken Ranch decision resolved the central legal 22 issues under IGRA in these motions – i.e., generally the extent to which 25 U.S.C. 23 § 2710(d)(3)(C)(i)-(vii) limits the permissible scope of compact negotiations and whether the 24 State’s insistence on compact provisions concerning tort claims coverage, employee spousal and 25 child support orders, and environmental review and mitigation constituted a failure to negotiate in 26 good faith. 27 Based on Chicken Ranch’s key holdings, the largely identical RONs in both this case and 28 Chicken Ranch, and the parties’ JSUFs, the parties now request the Court, pursuant to this 1 stipulation, grant summary judgment in Colusa’s favor on its claim for relief that the State failed 2 to negotiate in good faith as required by IGRA because it sought “to negotiate for compact 3 provisions that fall well outside of IGRA’s permissible topics of negotiation,” Chicken Ranch, 42 4 F.4th at 1040, namely, tribal recognition of state court spousal and child support orders, 5 environmental review and mitigation for a broadly defined set of “projects,” and broad tort claims 6 coverage based upon California law, and order the parties to proceed pursuant to the remedial 7 process set forth in IGRA, 25 U.S.C. § 2710(d)(7)(B)(iii)-(vii). 8 9 Dated: December 6, 2022 Respectfully submitted,
10 /s/ Rob Bonta 11 ROB BONTA Attorney General of California 12 SARA J. DRAKE Senior Assistant Attorney General 13 T. MICHELLE LAIRD Supervising Deputy Attorney General 14 JEREMY STEVENS Deputy Attorney General 15 /s/ Timothy M. Muscat 16 TIMOTHY M. MUSCAT 17 Deputy Attorney General Attorneys for Defendants 18 19 Dated: December 6, 2022 Respectfully submitted,
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1 ROB BONTA Attorney General of California 2 SARA J. DRAKE Senior Assistant Attorney General 3 T. MICHELLE LAIRD Supervising Deputy Attorney General 4 JEREMY STEVENS, State Bar No. 313883 TIMOTHY M. MUSCAT, State Bar No. 148944 5 Deputy Attorney General 1300 I Street, Suite 125 6 P.O. Box 944255 Sacramento, CA 94244-2550 7 Telephone: (916) 210-7779 Fax: (916) 323-2319 8 E-mail: Timothy.Muscat@doj.ca.gov Attorneys for Defendants 9 GEORGE FORMAN, State Bar No. 47822 10 FORMAN SHAPIRO & ROSENFELD LLP 5055 Lucas Valley Road 11 Nicasio, CA 94946 Telephone: (415) 491-2310 12 Email: george@gformanlaw.com Attorney for Plaintiff 13 14 15 IN THE UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF CALIFORNIA 17 2:20-cv-01585-AWI-SKO 18 CACHIL DEHE BAND OF WINTUN INDIANS OF THE COLUSA INDIAN STIPULATION FOR GRANTING 19 COMMUNITY, a federally recognized SUMMARY JUDGMENT IN Indian Tribe, PLAINTIFF’S FAVOR AND ORDER 20 REQUIRING PARTIES TO PROCEED Plaintiff, TO THE REMEDIAL PROCESS IN 25 21 U.S.C. § 2710(d)(7)(B)(iii)-(vii) v. 22 23 STATE OF CALIFORNIA, and GAVIN NEWSOM IN HIS OFFICIAL CAPACITY 24 AS GOVERNOR OF CALIFORNIA, 25 Defendants. 26
27 28 1 On July 28, 2022, the Ninth Circuit issued its published decision in Chicken Ranch 2 Rancheria of Me-Wuk Indians v. California (Chicken Ranch), 42 F.4th 1024 (9th Cir 2022). That 3 case involved whether the State of California (State) had failed to negotiate in good faith with 4 five California tribes seeking new tribal-state compacts required by the Indian Gaming 5 Regulatory Act (IGRA), 25 U.S.C. §§ 2710-2712, 18 U.S.C. §§ 1166-1167, in order for the tribes 6 to conduct what IGRA defines as “class III gaming.” The court held that “IGRA strictly limits 7 the topics that states may include in tribal-state Class III compacts to those directly related to the 8 operation of gaming activities.” Chicken Ranch, 42 F.4th at 1029. 9 The Chicken Ranch court ruled that the State failed to engage in good-faith negotiations 10 with five plaintiff tribes under IGRA by insisting on provisions not directly related to the 11 operation of class III gaming activities. The specific provisions addressed by the Ninth Circuit 12 concerned tribal recognition of spousal and child support orders for all gaming facility 13 employees, environmental review and mitigation for a broadly defined set of projects, and broad 14 tort claims coverage. Chicken Ranch, 42 F.4th at 1037-39. The court held that under 25 U.S.C. 15 § 2710(d)(3)(C)(vii), “these family, environmental, and tort law provisions are not ‘directly 16 related to the operation of gaming activities.’” Id. at 1038. 17 Similar to the plaintiff tribes in Chicken Ranch, plaintiff Cachil Dehe Band of Wintun 18 Indians of the Colusa Indian Community, a federally recognized Indian tribe (Colusa), is a former 19 member of the Compact Tribes Steering Committee (CTSC). On August 19, 2014, the CTSC, a 20 coalition of twenty-eight federally recognized California Indian tribes, wrote to inform the State 21 of CTSC’s formation and its desire to begin the negotiation process for new class III gaming 22 compacts. Colusa was a member of CTSC in 2014, and remained a member until July 6, 2020. 23 As such, Colusa shares the same record of negotiations (RON) with the plaintiff tribes in Chicken 24 Ranch from August 19, 2014, through July 6, 2020. 25 Colusa withdrew from negotiations with the State and filed its Complaint for Declaratory 26 and Injunctive Relief (Complaint) on August 7, 2020. (Doc. 1.) The Complaint’s claim for relief 27 alleged that the State failed in its duty to negotiate in good faith under IGRA. (Id. at ¶¶ 27-69.) 28 Regarding this claim in Colusa’s Complaint, on May 26, 2021, Colusa and the State and 1 Governor Gavin Newsom (State Defendants) filed cross-motions for summary judgment. (Docs. 2 34 & 35.) In these motions, the parties disputed whether the State failed in its duty under IGRA 3 to negotiate in good faith. These motions included disputes over whether the State’s proposed 4 provisions regarding tort liability and remedies (Complaint, Count Nine), tribal recognition of 5 employee spousal and child support orders (Complaint, Count Eleven), and environmental review 6 and mitigation (Complaint, Count Thirteen), exceeded the permissible scope of negotiations 7 under IGRA, 25 U.S.C. § 2710(d)(3)(C)(i)-(vii), and thus constituted a failure by the State to 8 negotiate in good faith. In addition, these motions included disputes over other provisions 9 proposed by the State. Some of those provisions were at issue in Chicken Ranch but were not 10 ruled upon by the Ninth Circuit in Chicken Ranch, while other provisions were not specifically at 11 issue in Chicken Ranch. 12 In support of their cross-motions for summary judgment, on May 26, 2021, the parties 13 each filed an identical Joint Statement of Undisputed Facts (JSUF). (Docs. 34-5 & 35-4.) The 14 stipulated facts in the JSUF included facts from the RON based upon CTSC compact negotiations 15 over tort claims coverage (JSUF, Nos. 16, 44, 49, 99, 146, 168, 175 & 199), employee spousal 16 and child support orders (JSUF, Nos. 49-52, 101, 158-59, 170 & 174), environmental review and 17 mitigation (JSUF, Nos. 16, 21, 23, 45, 98, 108, 129, 133 & 164), and the other provisions at issue 18 in the cross-motions for summary judgment (e.g., JSUF, Nos. 16, 21, 23-24, 26, 29, 36, 39-42, 19 45-47, 49-52, 58, 76, 78, 85 & 101). 20 While Colusa and the State Defendants’ cross-motions for summary judgment remain 21 pending before the Court, the Ninth Circuit’s Chicken Ranch decision resolved the central legal 22 issues under IGRA in these motions – i.e., generally the extent to which 25 U.S.C. 23 § 2710(d)(3)(C)(i)-(vii) limits the permissible scope of compact negotiations and whether the 24 State’s insistence on compact provisions concerning tort claims coverage, employee spousal and 25 child support orders, and environmental review and mitigation constituted a failure to negotiate in 26 good faith. 27 Based on Chicken Ranch’s key holdings, the largely identical RONs in both this case and 28 Chicken Ranch, and the parties’ JSUFs, the parties now request the Court, pursuant to this 1 stipulation, grant summary judgment in Colusa’s favor on its claim for relief that the State failed 2 to negotiate in good faith as required by IGRA because it sought “to negotiate for compact 3 provisions that fall well outside of IGRA’s permissible topics of negotiation,” Chicken Ranch, 42 4 F.4th at 1040, namely, tribal recognition of state court spousal and child support orders, 5 environmental review and mitigation for a broadly defined set of “projects,” and broad tort claims 6 coverage based upon California law, and order the parties to proceed pursuant to the remedial 7 process set forth in IGRA, 25 U.S.C. § 2710(d)(7)(B)(iii)-(vii). 8 9 Dated: December 6, 2022 Respectfully submitted,
10 /s/ Rob Bonta 11 ROB BONTA Attorney General of California 12 SARA J. DRAKE Senior Assistant Attorney General 13 T. MICHELLE LAIRD Supervising Deputy Attorney General 14 JEREMY STEVENS Deputy Attorney General 15 /s/ Timothy M. Muscat 16 TIMOTHY M. MUSCAT 17 Deputy Attorney General Attorneys for Defendants 18 19 Dated: December 6, 2022 Respectfully submitted,
20 FORMAN SHAPIRO & ROSENFELD LLP
21 /s/ George Forman
22 George Forman Attorneys for Plaintiff 23
26 27 28 1 ORDER 2 Based upon the above stipulation by the parties, summary judgment is granted in 3 | Colusa’s favor on the claim for relief in its Complaint, consistent with the Ninth Circuit’s 4 | decision in Chicken Ranch Rancheria of Me-Wuk Indians v. California (Chicken Ranch), 42 F.4th 5 | 1024 (9th Cir. 2022), and the undisputed facts agreed upon by the parties. 6 Accordingly, the parties ARE HEREBY ORDERED to proceed pursuant to the remedial 7 | process set forth in IGRA, 25 U.S.C. § 2710(d)(7)(B)Gii)-(vil). 8 9 10 IT IS SO ORDERED. □□ 11 | Dated: January 26, 2023 —= ZS Cb □□ — SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stip. Granting Summ. J. in Pl.’s Favor and Order Requiring Parties to Proceed to Remedial Process