Preview
1 BRIGIT S. BARNES & ASSOCIATES, INC.
BRIGir S. BARNES, ESQ. CSB #122673
2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591
3 3262 Penryn Road, Suite 200
Loomis, CA 95650
4 Telephone: (916) 660-9555 AUG 1 i 2017
Facsimile: (916)660-9554
5
Attomeys for Petitioners and Plaintiffs By E. Higginbotham, Deputy i;ierk
6
PATTY JOHNSON; JOE TEKEIRA;
7 OMAR AHMED, JR.; XIN QUO; and
CAROLYN SOARES
8
9 SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SACRAMENTO
11
12
PATTY JOHNSON; JOE TEKEIRA; CASE NO. 34-2016-80002493
13 OMAR AHMED, JR.; XIN GUO;
and CAROLYN SOARES, PETITIONERS' AND PLAINTIFFS'
14 REQUEST FQR CLARIFICATION OF
COURT'S RULING SUSTAINING
15 Petitioners and Plaintiffs, DEMURRER WITHOUS LEAVE TO
V. AMEND
16,
CITY OF ELK GROVE, [€RC3.1590j]
17
Hearing Date: June 23,2017
Respondent and Defendant. Ruling Issued: Aiigust 1, 2017
18
Department: 24 .
19 ELK GROVE TOWN CENTER, LP; Judge: Hon. Shelleyanne W.L. Chang
HOWARD HUGHES CORPORATION; and
20 DOES 1-20, inclusive, Action Filed: November 23,2017
Triai Date: Not Set
21 Real Parties in Interest and By F A X
22
Defendaiits.
23
24
TO THE HONORABLE COURT, A N D TO COUNSEL OF RECORD FOR
25
RESPONDENT, DEFENDANTSi AND REAL PARTIES IN INTEREST HEREIN:
26
Pursuant to CRC Rule 3.1590, Petitioners and Plaintiffs seek cliarification of the Court's
27
Ruling related to Court's determinations that (1) The Property in .question has been taken into
28
PETrnONERS" and PLAINTIFFS REQUEST FOR CLARIFICATION RE COURT RULING RE PARTIES
DEMURRERSTOAMENDED PETmON-COMPLAINT -1
1 trust for the benefit of the Wilton Rancheria tribe [Ruling, L Background, pg. 1]; (2) that no writ
2 of mandate should issue compelling City to hold hearings related to the transfer of the affected
3 Parcel from Real Party in Interest Elk Grove Town Center, LP Howard Hughes Corporation to
4 Boyd Gaming, Inc. and the Wilton Rancheria; and (3) that Declaratory Relief should not be
5 granted as to the failure of the City to act as mandated by the language of the Development
6 Agreement.
7 Petitioners have approved the form of the Final Order and Judgment prepared by City of
8 Elk Grove in which the Court's Ruling is attached, as the proposed Order is consistent with the
9 Order issued by the Court. However, prior to the Court's execution and filing of the Final Order
10 or Judgment, Petitioners' seek clarification df the Court's Ruhng on the legal and factual points
11 listed below.
12 REQUESTS
13 (I) The Ruling sustaining Defendants and Respondents' demurrer appears to presume
14 that the Federal Trust Decision is final, which was neither included in the pleadings nor is
15 factually correct. No decision has been filed in the Federal Register. Petitioners request
16 clarification as to the Court's Ruling, because the statement is not supported by any evidence in
17 the record, and no citation to the record is made at Ruling, pg. 1, Background, As has been
18 contested in the hearings and pleadings to date, any decision by the Department of Interior is not
19 final. Amend. Pet. For Writ [AW]i583, pg. 18. Petitioners' Opposition to Demurrer [POD] 2:7-
20
12; 7:11-28; 8-10:1-7; Demurrer Tentative Ruling [DTR] pg. 1; Background; and conclusion at
21
pg. 6 §iv. The allegations of the Petition must be. treated as true for the purpose of ruling pn a
22
demurrer. Ruling, pg. 4, n Discussion, citing Burt v. Orange (2004) 120 Cal.App.4'^ 273, 279,
23
POD 1:8-9. All post-filing Department of Interior decisions remain non-final and has been
24
challenged in federal court for the reasons stated in Petitioners' Opposition to COEG Demurter,
25
7:1-28; 8-11 and RJN No. 2' and such decisions remain stayed. No decisions have been
26
published in the federal register. Therefore, the Coiut's statements made in the DTR should be
27
28 ^ Amended Cornplaint, USDC D i s t . . Of Columbia No. 1:17-cv-00058-RDM f i l e d August
10, 2017.[Attached]
PETITIONERS' and PLAINTIFFS REQUEST FOR CLARIFICATION RE COURT RULING RE PARTIES
DEMURRERS TO AMENDED PETITION-COMPLAINT - 2
1 included in the Final Ruling, and the unsupported sentence identified should be stricken from the
2 Court's ruling.
3 (2) Petitioners request the Court revisit and clarify its Ruling to confirm that (a) the 2014
4 Development Agreement ("2014") DDA remains effective as to the Property, (b) the City of elk
5 Grove has adopted an ordinance incorporating the 2014 DDA into its municipal code, and (c)
6 mandatory provisions of ordinances are enforceable by writ of mandate.
7 The City acknowledged the continued effectiveness of the 2014 DDA during Injunction
8 Oral Argument Dec. 22, 2016 Reporter's Transcript [lOA] at 13:13-28, in its Ruling page 3
9 referring to AW ^62, 63, 73,79, and the Court statement regarding the continued effectiveness of
10 the 2014 DDA is at 16:15-23; and 20:17-24^
11 The Court's Ruling refers the referendum petition which successfully challenged
12 Ordinance 23-2016, the proposed amendment to the 2014 DDA. The valid referendum petition
13 prevented application of Ordinance 23-2016, the proposed amendment to the 2014 DDA, to the
14 Property. Ruling pg. 3, lOA 16:15-23 through 20:17-24, and Elections Code §9237. This means
15 that even before the Repeal Ordinance February 8,2017, the 2014 DDA remains on the Property
16 (This effect of the referendum petition served as the basis for this Court's denial of Petitioners'
17 request for an injunction prohibiting the City from implementing Ordinance 23-2016 so to
18 remove the 2014 DDA). Therefore, the 2014 DDA continued to apply to the Property at all
19 times relevant but including to the present, including the conveyance of the Property to Boyd
20 Gaming and the Tribe on January 19,2017. Petitioner's Opposition to Demuner at 1:20-27,
21 Tentative RulingOral Argument June 23,2017 Reporter's Transcript [TROA] 13:17-28; 1-18'.
22 In October 2014, the City of Elk Grove adopted Ordinance 28-2014 and 29-2014, which
23 incorporated the 2014 DDA.
24
(3) The Court Ruling states that Petitioners failed to identify a duty on the part of the City
25
and reiterates that the Property has been taken into trust for the benefit ofthe Tribe, [Ruling, pg.
26
8]. As set forth above in Section 1, the statement about the Property having been taken into triist
27
28 2 Reporters TreUiacript f o r Dec. 22, 2016. hearing attached.
^ Reporters Transcript f o r June 23, 2017 hearing attached.
PETITIONERS' and PLAINTIFFS REQUEST FOR CLARfflCATION RE COURT RULING RE PARTIES
DEMURRERSTOAMENDED PETITION-COMPLAINT - 3
1 for the benefit of the Tribe is both factually incortect and is outside the scope of the record
2 before the Court on tbis demurrer. Petitioners therefore request that the Court strike this
3 ertoneous statement for all reasons set forth in Section 1, above. Therefore, the second reference
4 in the Ruling at page 8 should be clarified as stated above.
5 Petitioners also ask the Court to clarify the ruling to reflect that Petitioners have
6 identified the City's duty to its citizens, because the City's obligations are identified in the 2014
7 DDA which the Cityhas adopted as an ordinance, and the City's mandatory duties under its
f
8
ordinances are enforceable against it. [AW, Second Cause of Action; f5 92-96, pgs 19-21; POD,
9
at 11:19-28; and 12; 16:13-28; 17; TROA 35:23-28; 36-37]. As the Court notes, the 2014
10
DDAs is both a contract and was formally adopted as Ordinances 28-2014 and 29-2014 per
11
Govemment Code §65864; 65867.5, cited in AW ? 102, pg. 22, Petitioner's Opposition at TROA
12
at 27:18-28; 28:1-9.
13
Petitioners request that the Ruling clarify whether the City has a duty to enforce the
14
mandatory terms of these ordinances. Specifically,
15
Although the 2014 DDA is incorporated as one of the City's ordinances, the Court's
16
Ruling assumes that a writ of mandate is not available to enforce the terms of the 2014 DDA.
17
Petitioners therefore request that the Ruling clarify whether the 2014 DDA is effective, whether
18
the ordinance adopting the 2014 DDA remains as valid and enforceable, and whether a writ of
19
mandate is available to compel the City's compliance with the mandatory provisions of tis
20
ordinances.
21
22 Thus, City's breach of its obligation to investigate the bonafides of the Assignees: Boyd
23
Gaming and the Wilton Tribe can be enforced by a Writ of Mandate by Petitioners.
24
Specifically, Sections 10.2 and 10.3 ofthe 2014 DDA mandate that the City hold a
25
hearing to examine thefinancialability of pirospective assignees of the DDA and their intentions
26
to be bound by its terms. The record is undisputed that the City held no such hearing. AW ^81,
27
82, 83, 111 and 112. The 2014 DDA.is Ex. A to the AW, and Petitioners argued a present duty
28
and City's violation at TROA35:23-28; 36-37. Under the mandatory terins of the 2014 DDA, as
PEimONERS' and PLAINTIFFS REQUEST FOR CLARIRCATION RE COURT RULING RE PARTIES
DEMURRERSTOAMENDED PETITION-COMPLAINT - 4
1 incorporated into the City's Ordinance, the City had an obligation to hold the hearing and make a
2 determination regarding the obligations of Boyd Gaming and Tribe to comply with the 2014
3 DDA.
4 Just as discussed in Intemational Brotherhood of Electrical Workers v. City of Gridley
5 (1983) 34 Cal.3d 191,197, Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7
6 Cal.4* 525, 539 even a 'sketchy and frequently vague framework for enforcement, where
7 substantive duties are implicated', a court can compel the actions required or implied to be
8 required by the ordinance or statute. Here, the ordinance incorporates the 2014 DDA, and
9 Petitioners request that the Ruling clarify whether the writ of mandate will lie to compel the city
10 to enforce the mandatory terms of the 2014 DDA where the 2014 DDA has been incorporated
11 into a valid ordinance adopted by the City.
12
13 Dated: August 12.2017 Respectfully submitted,
14 BRIGIT S. BARNES & ASSOCIATES, INC.,
A CALIFORNL\ CORPORATION
15
16
17
18 for Petitioners
19
20
21
22
23
24
25
26
27
28
PEimONERS' and PLAINTIFFS REQUEST FOR CLARIHCATION RE COURT RULING RE PARTIES
DEMURRERSTOAMENDED PETITION-COMPLAINT - 5
AMENDED COMPLAINT FILED 8-10-17
Case l:17-cv-00058-RDM Document26 Filed 08/10/17 Page lof 28
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOE TEDCEIRA
8217 Wooded Brook Drive
Elk Grove, CA 95758, Civil Action No. 1:17-cv-00058-RDM
PATTY JOHNSON
8713 Tulare Ct.
Elk Grove, CA 95758,
LYNN WHEAT
8770 Williamson Drive
Elk Grove, CA 95624, and
STAND UP FOR CALIFORNIA!
P.O. Box 355
Penryn, CA 95663,
Plaintiffs,
UNITED STATES DEPARTMENT OF
INTERIOR
1849 C Street, N.W.
Washington, D.C. 20240,
RYAN ZINKE, in his official capacity as Secretary
of the Interior
1849 C Street, N.W.
Washington, D.C. 20240,
BUREAU OF INDIAN AFFAIRS,
1849 C Street, N.W.
Washington, D.C. 20240, and
MICHAEL BLACK, in his official capacity as
Acting Assistant Secretary-Indian Affairs,
1849 C Street, N. W.
Washington, D.C. 20240,
Defendants,
and
WILTON RANCHERIA, CALIFORNIA,
Intervenor-Defendant.
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 2 of 28
The Plaintiffs, Joe Teixeira, Patty Johnson, Lynn Wheat, and Stand Up for
California!, by and through their counsel, hereby allege as follows:
I. NATURE OF ACTION
1. This is an action for declaratory and injunctive relief brought by Plaintiffs
challenging a January 19, 2017, Record of Decision ("ROD") approving an application to have
36 acres of land in the City of Elk Grove, Califomia ("Elk Grove Site") acquired in trust for the
Wilton Rancheria for a casino. For two and a half years, the Elk Grove community understood
that the Wilton Rancheria had applied to have 282 acres of land in Gait, Califomia ("Gait
Site")—a town 12 miles south of Elk Grove—acquired in trust for casino development. Federal
Register notices and an environmental impact statement ("EIS") the Bureau of Indian Affairs
("BIA") prepared for the Gait project confirmed the same. In July of 2016, however, the Wilton
Rancheria indicated that it would prefer to build a casino in Elk Grove. BIA did not
acknowledge the change or answer inquiries from the public until November 17, 2016, when it
circulated a Notice of (Gaming) Land Application. A month later, BIA announced that it had
completed a fmal EIS for public comment.
2. The sudden flurry of activity beginning after the November 8 election suggested
that Defendants were racing to issue a trust decision and acquire title to the land before the
change of Administration on January 20, 2017. Plaintiffs repeatedly reached out to the U.S.
Department of the Interior ("Interior") regarding timing, public notice, related state
proceedings, property encumbrances, and related issues. But Defendants dismissed those
concems and rebuffed Plaintiffs' requests for a modest delay in acquiring title to allow them the
opportunity to seek emergency judicial relief Plaintiffsfiledan emergency motion for
temporary restraining order ("TRO") in this Court on January 11, 2017 (in anticipation of a pre-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 3 of 28
January 20, 2017 decision), seeking an order enjoining Defendants from immediately acquiring
title pursuant to 25 C.F.R. §151.12.
3. At the January 13, 2017 hearing on the emergency TRO, Defendants represented
to the Court that they had not made a final decision on the trust application, that they could not
anticipate when they might be ready to do so (the comment period on the fmal EIS did not close
until January 17), and that the decision might not be to approve the trust acquisition. The Court
denied Plaintiffs' motion. Three working days later—on January 19—the Department issued a
90-page decision approving the application.' The decision was signed by Lawrence Roberts,
who signed as the Principal Deputy Assistant Secretary - Indian Affairs.
4. Plaintiffs had no opportunity to retum to the Court to seek a preliminary
injunction. After the hearing on January 13, Defendants informed Plaintiffs that they could
"formally" request an administrative stay of the title transfer, pursuant to 5 U.S.C. § 705, which
Plaintiffs subsequently did on January 17, 2017. That request remained pending on January 19,
at which time Defendants informed Plaintiffs that the Elk Grove Site "will not formally go into
trust at least until they provide you a response to the 705 stay request" and that they did not
know when that would happen. Plaintiffs' request for a meeting was ignored. On February 10,
Defendants informed Plaintiffs that their stay request under 5 U.S.C. § 705 was denied, as was
their request for a meeting. On the same day, BIA officials formally recorded acceptance of title
in trust to the Elk Grove Site. Because Defendants simultaneously acquired title and denied the
5 U.S.C. § 705 request, Plaintiffs were unable to renew their motion for preliminary injunction
or challenge the denial.
In fact, the Wilton Rancheria and an investor executed a grant deed days before the decision
was announced.
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 4 of 28
5. On February 15, Plaintiffs asked for an explanation of the trust authority BIA
exercised in accepting title in trust since the Principal Deputy Assistant Secretary who signed
the ROD does not have authority to make final tmst decisions under agency regulations. When
Defendants offered no explanation, Plaintiffs filed an administrative appeal on Febmary 21
because agency regulations demand exhaustion. Three days later, the Interior Board of Indian
Appeals ordered any party who "contends that the ROD is final ... [to] state the legal grounds
and provide all information and evidence relied on for that contention." Neither BIA nor the
Rancheria responded. Instead, on March 7, 2017, Michael Black—purportedly acting as Acting
Assistant Secretary-Indian Affairs—assumed jurisdiction ofthe appeal under the regulations
governing non-final agency action. Four months later, on July 13, 2017—without the
opportunity for briefing provided in the regulations—Black stated that the January 19, 2017
ROD constituted final agency action.
6. Chief Justice Roberts observed that the acceptance of land in trust is an
"extraordinary assertion of power."^ And like every power assigned to a federal agency, there
are fundamental limits on its exercise—those imposed by Congress and those that an agency
imposes on itself by regulation. Congress has also limited which govemment officials may
exercise certain powers as a "stmctural safeguard" and to "curb Executive abuses of the
appointment power."^ In this case, since at least November 9, 2016, Defendants have acted as
though none of these limitations apply. But a change in Administration does not leave the
outgoing officials free to ignore the substantive and procedural limits Congress has imposed or
those they have validly promulgated. It should not be a race to get as much done as possible. To
^ Oral Argument at 37:44, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526), available at:
https://www.oyez.org/cases/2008/07-526.
^ Edmondv. United States, 520 U.S. 651, 659 (1997).
4-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 5 of 28
the contrary, statutory and regulatory limits require the exercise of caution and restraint to
facilitate the orderly transition of power. Yet Defendants ignored virtually every limitation that
applies.
7. Plaintiffs seek a declaration that the Principal Deputy Assistant Secretary did not
have authority to issue the January 19, 2017 ROD; that Defendants' February 10 Acceptance of
Conveyance of the Elk Grove Site, as described in the Grant Deed dated January 16, 2017 and
January 17, 2017, was ultra vires and without legal effect;"* and that Defendants' serial
delegations violate the Federal Vacancies Reform Act, 5 U.S.C. § 3345(a)(1) ("FVRA").
Plaintiffs also seek a declaration that Defendants violated the Administrative Procedure Act, 5
U.S.C. §§ 501 etseg. and 701 etseq.; the Indian Reorganization Act ("IRA"), 25 U.S.C. §§
5101 etseq.; the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 etseq.; the
National Environmental Policy Act, 42 U.S.C. §§ 4321 etseq., and the implementing
regulations for each. The proper remedy is an order directing Defendants to invalidate the ROD
and record a rescission of the February 10, 2017 acceptance of the grant deed, in order to
remove the Elk Grove Site from trust.
II. THE PARTIES
8. Plaintiffs Joe Teixeira, Patty Johnson, and Lynn Wheat are individuals who
reside in Elk Grove, Califomia. They are harmed by the decision to acquire land in trust and the
environmental impacts of the proposed casino.
9. Plaintiff Stand Up for California! ("Stand Up") is a California non-profit, public
service corporation with a focus on gambling issues affecting Califomia. Since 1996, Stand Up
has worked with individuals, community groups, elected officials, members of law
^ Exhibit 1.
-5-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 6 of 28
enforcement, local public entities, the State of Califomia and state and federal policy makers on
matters related to gaming. Stand Up has supporters throughout Califomia, including some
residing in the Elk Grove area that will be affected by the environmental and economic impacts
of the Rancheria's proposed trust acquisition and tribal casino.
10. Defendant Department of the Interior ("Interior") is a department of the United
States government. Interior is charged with responsibility for managing and administering lands
of Indian tribes and for managing and administering federal programs related to Indian tribes.
11. Defendant Ryan Zinke is the Secretary of the Interior ("Secretary"), and in that
capacity is responsible for overseeing and managing all programs, activities, and operations of
Interior relating to Indian lands and affairs. He is sued in his official capacity only.
12. Defendant Bureau of Indian Affairs ("BIA") is a federal agency within Interior
and is responsible for overseeing and managing all programs, activities, and operations of the
Interior relating to Indian lands and affairs.
13. Defendant Michael Black is the Special Assistant to the Director ("Special
Assistant"), Bureau of Indian Affairs. According to Secretarial Order No. 3345, Mr. Black, as
Special Assistant to the Director, has been delegated "[a]ll functions, duties, and
responsibilities" of the Assistant Secretary-Indian Affairs. Section 4 of this Order limits Black's
delegated authority to "only those functions or duties that are not required by statute or
regulation to be performed only by the Senate-confirmed official occupying the position." He is
sued in his official capacity only.
14. Intervenor-Defendant Wilton Rancheria, Califomia, is a federally recognized
Indian Tribe.
-6-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 7 of 28
15. Interior and BIA are agencies within the meaning of the APA, 5 U.S.C. §
701(b)(1).
IIL JURISDICTION AND VENUE
16. The Court has both subject matter and personal jurisdiction under 28 U.S.C. §
1331; the APA, 5 U.S.C. §§ 702, 706; and 28 U.S.C. §§ 2201-2202; and this Court's equitable
powers.
17. Venue is proper in the federal district court for the District of Columbia under 28
U.S.C. § 1391(b) and (e)(2) because the United States, one ofits agencies, and one ofits
officers in his official capacity are Defendants and a substantial part of the events affected by
the litigation is related to this district.
18. The United States waived sovereign immunity from suit under 5 U.S.C. § 702.
19. There is an actual controversy between the parties that invokes the jurisdiction of
this Court regarding decisions by, and actions of, the Defendants that are subject to review by
this Court. It is the Department's position that there has been a final agency action that is
reviewable by this Court. 25 C.F.R. § 2.6(c); 5 U.S.C. § 704.
IV. STATUTORY FRAMEWORK
20. Pursuant to the Califomia Rancheria Termination Act of 1958, Public Law 85-
671 (72 Stat. 619), Congress ordered the Secretary to develop a plan that distributes the land
and assets of certain enumerated Rancherias, including Wilton Rancheria. Under the Act, all
Indians who received a portion of Rancheria assets are thereafter ineligible to receive federal
services based on their status as Indians. The Act declares "all statutes of the United States
which affect Indians because of their status as Indians shall be inapplicable to them."
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 8 of 28
21. Section 5 of the Indian Reorganization Act of 1934 authorizes the Secretary to
acquire land in trust for "Indians." 25 U.S.C. § 5108. Section 19 defines "Indians" to include
"all persons of Indian descent who are members of any recognized Indian tribe now under
Federal jurisdiction." 25 U.S.C. § 5129. In Carcieri v. Salazar, 555 U.S. 379 (2009), the Court
held that "the term 'now under Federal jurisdiction' in § [5129] unambiguously refers to those
tribes that were under the federal jurisdiction of the United States when the IRA was enacted in
1934." M a t 395.
22. In 2013, the Department revised 25 C.F.R. § 151.12, entitled "Action on
requests." Subsection (c) provides: "A decision made by the Secretary, or the Assistant
Secretary - Indian Affairs pursuant to delegated authority, is a final agency action under 5
U.S.C. 704 upon issuance." 25 C.F.R. § 151.12(c). Subsection (d) provides: "A decision made
by a Bureau of Indian Affairs official pursuant to delegated authority is not afinalagency
action of the Department under 5 U.S.C. 704 until administrative remedies are exhausted under
part 2 of this chapter or until the time for filing a notice of appeal has expired and no
administrative appeal has been filed." 25 C.F.R. § 151.12(d).
23. The Federal Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d, limits the
authority of certain Executive Branch officials when a vacancy occurs in an office held by a
Senate-confirmed Presidential appointee. Section 3348 of this Act prohibits any officer or
employee of an agency from performing any function or duty of such vacant office when a
statute or regulation requires that function or duty to be performed personally by the Senate-
confirmed officer and only that officer.
24. The Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq. ("IGRA"),
prohibits gambling on lands taken into trust for Indians after 1988, except under limited
8-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 9 of 28
exceptions. Under the restored lands exception, the Secretary must find that the land to be taken
into trust is part ofthe restoration of lands for an Indian tribe that is restored to Federal
recognition." 25 U.S.C. § 2719(b)(l)(B)(iii); 25 C.F.R. § 292.7. In addition, the land must
qualify as "Indian lands" under the Act. 25 U.S.C. § 2703(4).
25. The National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"),
requires federal agencies to take a "hard look" at the environmental consequences of their
proposed actions and make information on the environmental consequences available to the
public. The implementing regulations at 40 C.F.R. Parts 1500-1508 establish how NEPA is to
be implemented.
V. STATEMENT OF FACTS
A. Background on the Wilton Rancheria
26. In 1928, the Department purchased approximately 37.88 acres to establish the
Wilton Rancheria "for use by the landless Califomia Indians." The Sacramento Indian Agency
selected the site in November 1927 for the approximately 33 families of 150 homeless Indians
of various ethnological backgrounds residing in the vicinity.
27. In 1935, the various Indians living on the Rancheria voted to organize under
Section 16 ofthe IRA. The Assistant Commissioner of Indian Affairs approved their governing
documents in 1936. Self-governance activities continued until approximately 1940. Between
1940 and 1952, there is no record of any self-govemance activities.
28. In 1952, residents voted to accept termination of federal guardianship. The
Secretary included the Wilton Rancheria in the third round of proposed termination legislation,
which Congress enacted as the Califomia Rancheria Termination Act, Public Law 85-671 (Aug.
18,1958).
-9-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 10 of 28
29. The Secretary distributed the assets of the Rancheria to the Indians then living on
the Rancheria pursuant to a distribution plan approved by the Commissioner of Indian Affairs
on July 6, 1959. On September 22, 1964, the Secretary published notice of termination of
federal supervision overthe Indians living on the Rancheria. 29 Fed. Reg. 13146 (Sept. 22,
1964).
30. On May 21, 2007, the Wilton Miwok Rancheria Interim Tribal Council sued the
United States as the "Wilton Miwok Rancheria" to be restored to federal recognition. Compl.,
Wilton Miwok Rancheria v. Kempthorne, No. 5:07-cv-02681-JF (N.D. Cal. May 21, 2007), ECF
No. 1. The United States settled with the group on June 4, 2009, by stipulating that termination
ofthe Wilton Rancheria was not lawfully executed and "restoring" the plaintiffs to the status as
a federally recognized tribe. Judgment, Wilton Miwok Rancheria v. Kempthorne, No. 5:07-cv-
02681-JF (N.D. Cal. July 16, 2009), ECF No. 62.
B. The Trust Application for the Gait Site
31. On December 4, 2013, BIA issued a Notice of Intent to Prepare an EIS for the
proposed acquisition of the Gait Site in trust for the Wilton Rancheria. 78 Fed. Reg. 72928-01
(Dec. 4, 2013). The Notice states that the Rancheria applied to have "approximately 282 acres
of fee land ... located within the City of Gait Sphere of Influence Area" acquired "in trust in
Sacramento County, California, for the construction and operation of a gaming facility."
32. BIA held a public scoping meeting in Gait on December 19, 2013, seeking
public comment on the application for purposes of identifying issues to consider in the NEPA
analysis. Id. BIA invited Gait to participate as a cooperating agency.
33. In February 2014, BIA issued an EIS Scoping Report identifying the Gait Site as
the proposed project. The Scoping Report identified five other reasonable altematives,
10-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 11 of 28
including an approximately 28-acre site in Elk Grove—a portion of a larger approximately 100-
acre site that was approved for development as an open-air mall.
34. BIA issued a Notice of Availability for the draft EIS on the proposed Gait
acquisition on December 29, 2015. 80 Fed. Reg. 81,352 (Dec. 29, 2015).
35. On June 9, 2016, the Wilton Rancheria held a public meeting in Elk Grove to
announce that it would prefer to have the Elk Grove Site acquired in trust for its casino.
36. The Elk Grove Site is encumbered by a development agreement adopted by city
ordinance in which the 100-acre site would be developed as an outlet mall in two phases. In the
development agreement, the City of Elk Grove reserved the right, among other things, to grant
or deny land use approvals; adopt, increase, and impose regular taxes, utility charges, and
permit processing fees; adopt and apply regulations necessary to protect public health and
safety; adopt increased or decreased fees, charges, assessments, or special taxes; adopt and
apply regulations relating to the temporary use of land, control of traffic, regulation of sewers,
water, and similar subjects and abatement of public nuisances; adopt laws not in confiict with
the terms and conditions for development established in prior approvals; and exercise Elk
Grove's power of eminent domain with respect to any part of the property.
37. On September 27, 2016, Plaintiffs Joe Teixeira, Lynn Wheat, and Stand Up
requested that BIA prepare a supplemental EIS to address the Rancheria's apparent change in
its proposed project from the 282 -acre Gait Site to the 28-acre Elk Grove Site. BIA did not
respond to the request.
C. The Change in Proposed Project to the Elk Grove Site
38. On November 17, 2016, BIA issued a Notice of (Gaming) Land Application for
the Elk Grove Site. On December 14, 2016, BIA published a notice of the final EIS, which
II -
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 12 of 28
identified the 36-acre Elk Grove Site as the project proposal for the first time—not the original
282-acre Gait Site or the 28-acre altemative site in Elk Grove. See 81 Fed. Reg. 90379-01 (Dec.
14, 2016). Two days later, on December 16, 2016, EPA issued a Notice of Availability of the
final EIS in the Federal Register. See 81 Fed. Reg. 91169 (Dec. 16, 2016).
39. Defendants' notice of availability for the final EIS changed the Proposed Action
from the 282-acre Gait Site to the 36-acre Elk Grove Site. Defendants did not:
a. Prepare a supplemental EIS;
b. Provide notice of the change of the Proposed Action or seek public comment on
the 36-acre Elk Grove Site before issuing afinalEIS;
c. Adequately evaluate environmental impacts;
d. Circulate for public comment new reports related to economic impacts, cultural
resources, traffic impacts, air quality modeling, and other issues never
previously disclosed before issuing afinalEIS;
e. Defendants did not respond to all comments included in the administrative
record before issuing a final EIS; and
f. Defendants did not clearly or accurately relate facts and applicable laws.
40. Between December 29, 2016 and January 9, 2017, Plaintiffs made several
requests with the Secretary to delay the acquisition of title in tmst upon fmal decision to allow
Plaintiffs to seek preliminary injunctive relief from the Court. Defendants refused Plaintiffs'
requests. Plaintiffs additionally filed comments on the trust application and the EIS, and raised
questions regarding the Rancheria's eligibility for trust land.
41. On January 11, 2017, Plaintiffs filed a complaint and Emergency Motion for a
Temporary Restraining Order and Preliminary Injunction in this Court asking the Court to
enjoin Defendants from immediately acquiring title to the Elk Grove Site in trust upon final
decision. On January 13, 2017, the Court denied Plaintiffs' motion.
- 12-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 13 of 28
42. In discussing possible schedules for briefing of their motion for preliminary
injunction, counsel for Defendants informed Plaintiffs' counsel that the Department did not
consider Plaintiffs' requests for a modest delay to have been formal requests for a stay, pursuant
to 5 U.S.C. § 705.
43. Plaintiffs and Defendants subsequently agreed not to proceed with preliminary
injunction briefing, and Plaintiffs submitted a formal request for a stay under 5 U.S.C. § 705 on
January 17, 2017.
44. On January 18, 2017, Plaintiffs informed the Court that Plaintiffs would "review
any final decisions and confer with Defendants at that time as to the necessity of and timing for
seeking emergency and/or preliminary injunctive relief" Dkt. 6 at 2.
45. On January 19, 2017, the Principal Deputy Assistant Secretary signed a ROD
that approved the Wilton Rancheria's trust application. That document does not:
a. Adequately address whether the Wilton Rancheria qualifies for trust land under
the IRA or the Califomia Rancheria Termination Act;
b. Accurately reflect that the Elk Grove Site is encumbered by restrictive
covenants or take a consistent position with respect to their effect;
c. Adequately address whether land subject to restrictive covenants can qualify as
"Indian lands" under IGRA;
d. Clearly address the applicability or effect of the restrictive covenants that run
with the Elk Grove Site; and
e. Correctly conclude the Wilton Rancheria meets the requirements of the restored
land exception to IGRA because the Wilton Rancheria "qualifies as a 'restored
tribe'" and the Elk Grove site "qualifies as 'restored lands.'"
46. Lawrence Roberts issued the ROD on the evening of January 19, 2017 in his
capacity as Principal Deputy Assistant Secretary. He did not purport to act, and could not have
legally acted, as Acting Assistant Secretary, pursuant to the Vacancies Reform Act, 5 U.S.C. §
3346(a). Under that Act, Mr. Roberts, who assumed the role of Acting Assistant Secretary on or
- 13-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 14 of 28
about January 1,2016, was prohibited from serving as Acting Assistant Secretary for more than
210 days. Accordingly, any authority Mr. Roberts had to take acfion under 25 C.F.R. § 151.12
terminated on or about August 3, 2016.
D. Post-January 19,2017 ROD Proceedings
47. Upon hearing that a decision might have been made, Plaintiffs contacted
Defendants through counsel on the evening of January 19, 2017 to request a copy of the ROD
and to confirm status of the title to the land.
48. Defendants provided an incomplete copy of the ROD on January 19 and
informed Plaintiffs that the Elk Grove Site would not formally go into trust at least until
Defendants responded to Plaintiffs' § 705 stay request. Defendants did not know when their
response would be forthcoming.
49. On January 23, 2017, Plaintiffs contacted Defendants through counsel to discuss
amending their complaint and the possibility of expedited review or of reaching an agreement
regarding the transfer of title. Plaintiffs also requested information regarding the timing of
Defendants' response to Plaintiffs' § 705 request.
50. Defendants responded through counsel on January 24 that Defendants were still
considering Plaintiffs' § 705 request and they did not know when they would resolve that
request. Defendants also indicated that they would consider Plaintiffs' request to discuss an
agreement to alleviate the need for emergency or expedited proceedings but could not indicate
when they would respond.
51. On January 26, 2017, Plaintiffs formally requested a meeting with Defendants
through counsel to discuss concems regarding the "unprecedented nature" of the ROD and a
reasonable timeline for resolving Plaintiffs' challenge.
14-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 15 of 28
52. On Febmary 6, 2017, Plaintiffs contacted Defendants through counsel to obtain a
response to their meeting request of January 26. Counsel for Defendants indicated that he
believed that they were "still considering it."
53. The moming of February 10, 2017, Westcor Land Title Insurance Company
issued a chain of title guarantee to Boyd Gaming for the Elk Grove Site, subject to certain
exclusions from coverage, including:
a. Any law, ordinance or govemmental regulation (including but not limited to
building and zoning ordinances) restricting or regulating or prohibiting the
occupancy, use or enjoyment of the land, or regulating the character, dimensions
or location of any improvement now or hereafter erected on the land, or
prohibiting a separation in ownership or a reduction in the dimensions or area of
the land, or environmental protection, or the effect of any violation of any such
law, ordinance or governmental regulation, except to the extent that a notice of
the enforcement thereof or a notice of a defect, lien, or encumbrance resulting
from a violation or alleged violation affecting the land has been recorded in the
public records at Date of Guarantee;
b. Rights of eminent domain or govemmental rights of police power; and
c. Defects, liens, encumbrances, adverse claims, or other matters (a) known,
created, suffered, assumed or agreed to by the guaranteed claimant; (b) resulting
in no loss or damage to the guaranteed claimant; (c) attaching or created
subsequent to Date hereof; or (d) resulting in loss or damage which would not
have been sustained if the guaranteed claimant had paid value for the estate or
interest guaranteed by this title guarantee.^
54. The same day, Lorrae Russell, a Realty Specialist for Defendants, notarized
Defendants' Acceptance of Conveyance of the Grant Deed dated January 16, 2017 and January
17, 2017. The Sacramento County Recorder recorded the January 16/17 Grant Deed and
Defendants' Conveyance of Acceptance that afternoon.
55. At close ofbusiness the same day. Defendants sent Plaintiffs through counsel a
letter from Mr. Black, who signed as Acting Assistant Secretary, denying Plaintiffs' § 705
^ Exhibit 2.
- 15-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 16 of 28
request. The email also stated that Defendants were denying Plaintiffs' January 26 meeting
request. At the time Plaintiffs received notice of Defendants' decisions, Defendants had
formally accepted title to the Elk Grove Site and were in the process of recording their
acceptance. There was no opportunity for Plaintiffs to renew their motion for emergency relief
from this Court.
56. On February 15, 2017, Plaintiffs contacted Defendants through counsel to
request the authority pursuant to which title was acquired. Plaintiffs noted that the January 19,
2017 ROD was signed by the Principal Deputy Assistant Secretary and that agency regulations
do not authorize a Principal Deputy Assistant Secretary to issue final trust decisions. Plaintiffs
noted that Defendants cannot accept title to land in tmst unless the trust decision is made by the
Secretary or the Assistant Secretary-Indian Affairs. Defendants did not respond.
57. Agency regulations require interested parties to exhaust their administrative
remedies for non-final agency decisions. Having received no explanation from Defendants
regarding the authority for their actions, Plainfiffsfileda Notice of Appeal, a Petition for
Preliminary Relief, and a Statement of Reasons with the Interior Board of Indian Appeals
("Board") on February 21, 2017.
58. On February 24, 2017, the Board issued a Pre-Docketing Notice and Order for
Briefing on Jurisdiction, ordering the BIA and other interested parties to brief, by March 17,
2017, whether the ROD was final for the Department, and therefore whether the Board had
jurisdiction over the appeal.
59. On March 7, 2017, Michael S. Black, signing as "Acting Assistant Secretary—
Indian Affairs," advised the Board that he was assuming jurisdicfion over the appeal pursuant to
25 C.F.R. § 2.20(c) and 43 C.F.R. § 4.332(b)—the regulations that govem administrative
- 16-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 17 of 28
appeals. The Board vacated the briefing order on March 8 and transferred the appeal to Mr.
Black.
60. On March 15, 2017, Plaintiffs filed an Objection to Mr. Black's Assumption of
Jurisdiction and Request for Reconsideration, based on the FVRA, which the Board provided to
Mr. Black on March 17, 2017.
61. On March 30, 2017, Plaintiffs submitted a request to the Secretary, asking that
he review: (1) the January 19, 2017, ROD; (2) the February 10, 2017, action to acquire the Elk
Grove Site in trust; and (3) the March 17, 2017, assumption of jurisdiction over Plaintiffs'
administrative appeal. The Secretary did not respond to Plaintiffs' request. Mr. Black did not
issue a briefing schedule, as provided for in 25 C.F.R. § 2.20(e). Mr. Black also did not issue a
decision "within 60 days after all time for pleadings (including all extensions) has expired." Id.
62. On July 13, 2017, Mr. Black, signing as "Acting Assistant Secretary—Indian
Affairs," issued an Order Dismissing Administrative Appeal, on the grounds that the January
19, 2017, ROD was final for the Department. Mr. Black's decision document stated that he was
authorized to issue his decision pursuant to authority delegated to him in Secretarial Order 3345
and through other delegations of authority contained in the Departmental Manual.
63. Defendants' actions have deprived Plaintiffs of their proceduralrightsunder a
variety of statutes and directly impact the community in which Plaintiffs reside and the interests
Stand Up protects. The acquisition of land in tmst for a casino will result in traffic, noise, light,
crime, problem gambling, and other impacts, substantially altering the Elk Grove community.
These decisions injure Plaintiffs' procedural, economic, environmental, and aesthetic interests.
- 17-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 18 of 28
COUNT I
(Declaratory and Injunctive Relief—Acquisition of Trust Land in Violation ofthe FVRA,
Departmental Regulations, and the APA)
64. Each of the foregoing allegations is incorporated herein by reference.
65. Pursuant to 25 C.F.R. § 151.12, the only officials authorized to take action on a
trust request are: (1) the Secretary of the Interior; (2) the Assistant Secretary-Indian Affairs,
pursuant to delegated authority; and (3) Bureau of Indian Affairs officials, pursuant to delegated
authority. Only decisions made by the Secretary and the Assistant Secretary-Indian Affairs are
final forthe Department. 25 C.F.R. § 151.12(c). Decisions made by BIA officials pursuantto
delegated authority are not final forthe Department. 25 C.F.R. § 151.12(d).
66. Any party who wishes to seek judicial review of a trust decision by a BIA
official must first exhaust administrative remedies under 25 C.F.R. Part 2. 25 C.F.R. §
151.12(d)(4). Title to land cannot be taken into trust until after the time for filing a notice of
appeal has expired or upon exhaustion of administrative remedies under 25 C.F.R. Part 2, at
which point the decision becomes final. 25 C.F.R. § 151.12(d), (d)(2)(iv).
67. The FVRA limits who may be appointed on a temporary basis to serve in the
role of a political appointee subject to Senate confirmation, who may automatically serve, and
for how long they may serve. 5 U.S.C. §§ 3345-3349d. If an officer of an Executive agency
whose appointment must be made by the President, with the advice and consent of the Senate,
resigns, the first assistant to the office of such officer shall perform the functions and duties of
the office temporarily in an acting capacity for no more than 210 days. 5 U.S.C. §§ 3345(a)(1),
3346(a)(1).
68. Pursuant to the FVRA, Mr. Roberts automatically became the Acting Assistant
Secretary-Indian Affairs on or about January I , 2016. See 5 U.S.C. § 3345(a)(1). Pursuant to 5
18-
Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 19 of 28
U.S.C. § 3346(a)(2), Mr. Roberts ceased serving as the Acting Assistant Secretary-Indian
Affairs on or about July 29, 2016.
69. On January 19, 2017, Mr. Roberts was not: (1) the Secretary; (2) the Assistant
Secretary, acting pursuant to delegated authority; or (3) a BIA official, acting pursuant to
delegated authority. Agency regulations do not authorize Mr. Roberts, as Principal Deputy
Assistant Secretary, to take action on a trust request. Mr. Roberts was statutorily prohibited
from "perform[ing] the functions and duties" of the Office of the Assistant Secretary-Indian
Affairs after July 29, 2016, for any function or duty required by statute or regulation to be
performed personally by the Assistant Secretary-Indian Affairs.
70. The ROD Mr. Roberts issued on the evening of January 19,2017 was ultra vires,
in violation of agency regulations and the FVRA.
71. The acquisition of title to the Elk Grove Site on February 10, 2017, was ultr
Preview
1 BRIGIT S. BARNES & ASSOCIATES, INC. BRIGir S. BARNES, ESQ. CSB #122673 2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 3 3262 Penryn Road, Suite 200 Loomis, CA 95650 4 Telephone: (916) 660-9555 AUG 1 i 2017 Facsimile: (916)660-9554 5 Attomeys for Petitioners and Plaintiffs By E. Higginbotham, Deputy i;ierk 6 PATTY JOHNSON; JOE TEKEIRA; 7 OMAR AHMED, JR.; XIN QUO; and CAROLYN SOARES 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 PATTY JOHNSON; JOE TEKEIRA; CASE NO. 34-2016-80002493 13 OMAR AHMED, JR.; XIN GUO; and CAROLYN SOARES, PETITIONERS' AND PLAINTIFFS' 14 REQUEST FQR CLARIFICATION OF COURT'S RULING SUSTAINING 15 Petitioners and Plaintiffs, DEMURRER WITHOUS LEAVE TO V. AMEND 16, CITY OF ELK GROVE, [€RC3.1590j] 17 Hearing Date: June 23,2017 Respondent and Defendant. Ruling Issued: Aiigust 1, 2017 18 Department: 24 . 19 ELK GROVE TOWN CENTER, LP; Judge: Hon. Shelleyanne W.L. Chang HOWARD HUGHES CORPORATION; and 20 DOES 1-20, inclusive, Action Filed: November 23,2017 Triai Date: Not Set 21 Real Parties in Interest and By F A X 22 Defendaiits. 23 24 TO THE HONORABLE COURT, A N D TO COUNSEL OF RECORD FOR 25 RESPONDENT, DEFENDANTSi AND REAL PARTIES IN INTEREST HEREIN: 26 Pursuant to CRC Rule 3.1590, Petitioners and Plaintiffs seek cliarification of the Court's 27 Ruling related to Court's determinations that (1) The Property in .question has been taken into 28 PETrnONERS" and PLAINTIFFS REQUEST FOR CLARIFICATION RE COURT RULING RE PARTIES DEMURRERSTOAMENDED PETmON-COMPLAINT -1 1 trust for the benefit of the Wilton Rancheria tribe [Ruling, L Background, pg. 1]; (2) that no writ 2 of mandate should issue compelling City to hold hearings related to the transfer of the affected 3 Parcel from Real Party in Interest Elk Grove Town Center, LP Howard Hughes Corporation to 4 Boyd Gaming, Inc. and the Wilton Rancheria; and (3) that Declaratory Relief should not be 5 granted as to the failure of the City to act as mandated by the language of the Development 6 Agreement. 7 Petitioners have approved the form of the Final Order and Judgment prepared by City of 8 Elk Grove in which the Court's Ruling is attached, as the proposed Order is consistent with the 9 Order issued by the Court. However, prior to the Court's execution and filing of the Final Order 10 or Judgment, Petitioners' seek clarification df the Court's Ruhng on the legal and factual points 11 listed below. 12 REQUESTS 13 (I) The Ruling sustaining Defendants and Respondents' demurrer appears to presume 14 that the Federal Trust Decision is final, which was neither included in the pleadings nor is 15 factually correct. No decision has been filed in the Federal Register. Petitioners request 16 clarification as to the Court's Ruling, because the statement is not supported by any evidence in 17 the record, and no citation to the record is made at Ruling, pg. 1, Background, As has been 18 contested in the hearings and pleadings to date, any decision by the Department of Interior is not 19 final. Amend. Pet. For Writ [AW]i583, pg. 18. Petitioners' Opposition to Demurrer [POD] 2:7- 20 12; 7:11-28; 8-10:1-7; Demurrer Tentative Ruling [DTR] pg. 1; Background; and conclusion at 21 pg. 6 §iv. The allegations of the Petition must be. treated as true for the purpose of ruling pn a 22 demurrer. Ruling, pg. 4, n Discussion, citing Burt v. Orange (2004) 120 Cal.App.4'^ 273, 279, 23 POD 1:8-9. All post-filing Department of Interior decisions remain non-final and has been 24 challenged in federal court for the reasons stated in Petitioners' Opposition to COEG Demurter, 25 7:1-28; 8-11 and RJN No. 2' and such decisions remain stayed. No decisions have been 26 published in the federal register. Therefore, the Coiut's statements made in the DTR should be 27 28 ^ Amended Cornplaint, USDC D i s t . . Of Columbia No. 1:17-cv-00058-RDM f i l e d August 10, 2017.[Attached] PETITIONERS' and PLAINTIFFS REQUEST FOR CLARIFICATION RE COURT RULING RE PARTIES DEMURRERS TO AMENDED PETITION-COMPLAINT - 2 1 included in the Final Ruling, and the unsupported sentence identified should be stricken from the 2 Court's ruling. 3 (2) Petitioners request the Court revisit and clarify its Ruling to confirm that (a) the 2014 4 Development Agreement ("2014") DDA remains effective as to the Property, (b) the City of elk 5 Grove has adopted an ordinance incorporating the 2014 DDA into its municipal code, and (c) 6 mandatory provisions of ordinances are enforceable by writ of mandate. 7 The City acknowledged the continued effectiveness of the 2014 DDA during Injunction 8 Oral Argument Dec. 22, 2016 Reporter's Transcript [lOA] at 13:13-28, in its Ruling page 3 9 referring to AW ^62, 63, 73,79, and the Court statement regarding the continued effectiveness of 10 the 2014 DDA is at 16:15-23; and 20:17-24^ 11 The Court's Ruling refers the referendum petition which successfully challenged 12 Ordinance 23-2016, the proposed amendment to the 2014 DDA. The valid referendum petition 13 prevented application of Ordinance 23-2016, the proposed amendment to the 2014 DDA, to the 14 Property. Ruling pg. 3, lOA 16:15-23 through 20:17-24, and Elections Code §9237. This means 15 that even before the Repeal Ordinance February 8,2017, the 2014 DDA remains on the Property 16 (This effect of the referendum petition served as the basis for this Court's denial of Petitioners' 17 request for an injunction prohibiting the City from implementing Ordinance 23-2016 so to 18 remove the 2014 DDA). Therefore, the 2014 DDA continued to apply to the Property at all 19 times relevant but including to the present, including the conveyance of the Property to Boyd 20 Gaming and the Tribe on January 19,2017. Petitioner's Opposition to Demuner at 1:20-27, 21 Tentative RulingOral Argument June 23,2017 Reporter's Transcript [TROA] 13:17-28; 1-18'. 22 In October 2014, the City of Elk Grove adopted Ordinance 28-2014 and 29-2014, which 23 incorporated the 2014 DDA. 24 (3) The Court Ruling states that Petitioners failed to identify a duty on the part of the City 25 and reiterates that the Property has been taken into trust for the benefit ofthe Tribe, [Ruling, pg. 26 8]. As set forth above in Section 1, the statement about the Property having been taken into triist 27 28 2 Reporters TreUiacript f o r Dec. 22, 2016. hearing attached. ^ Reporters Transcript f o r June 23, 2017 hearing attached. PETITIONERS' and PLAINTIFFS REQUEST FOR CLARfflCATION RE COURT RULING RE PARTIES DEMURRERSTOAMENDED PETITION-COMPLAINT - 3 1 for the benefit of the Tribe is both factually incortect and is outside the scope of the record 2 before the Court on tbis demurrer. Petitioners therefore request that the Court strike this 3 ertoneous statement for all reasons set forth in Section 1, above. Therefore, the second reference 4 in the Ruling at page 8 should be clarified as stated above. 5 Petitioners also ask the Court to clarify the ruling to reflect that Petitioners have 6 identified the City's duty to its citizens, because the City's obligations are identified in the 2014 7 DDA which the Cityhas adopted as an ordinance, and the City's mandatory duties under its f 8 ordinances are enforceable against it. [AW, Second Cause of Action; f5 92-96, pgs 19-21; POD, 9 at 11:19-28; and 12; 16:13-28; 17; TROA 35:23-28; 36-37]. As the Court notes, the 2014 10 DDAs is both a contract and was formally adopted as Ordinances 28-2014 and 29-2014 per 11 Govemment Code §65864; 65867.5, cited in AW ? 102, pg. 22, Petitioner's Opposition at TROA 12 at 27:18-28; 28:1-9. 13 Petitioners request that the Ruling clarify whether the City has a duty to enforce the 14 mandatory terms of these ordinances. Specifically, 15 Although the 2014 DDA is incorporated as one of the City's ordinances, the Court's 16 Ruling assumes that a writ of mandate is not available to enforce the terms of the 2014 DDA. 17 Petitioners therefore request that the Ruling clarify whether the 2014 DDA is effective, whether 18 the ordinance adopting the 2014 DDA remains as valid and enforceable, and whether a writ of 19 mandate is available to compel the City's compliance with the mandatory provisions of tis 20 ordinances. 21 22 Thus, City's breach of its obligation to investigate the bonafides of the Assignees: Boyd 23 Gaming and the Wilton Tribe can be enforced by a Writ of Mandate by Petitioners. 24 Specifically, Sections 10.2 and 10.3 ofthe 2014 DDA mandate that the City hold a 25 hearing to examine thefinancialability of pirospective assignees of the DDA and their intentions 26 to be bound by its terms. The record is undisputed that the City held no such hearing. AW ^81, 27 82, 83, 111 and 112. The 2014 DDA.is Ex. A to the AW, and Petitioners argued a present duty 28 and City's violation at TROA35:23-28; 36-37. Under the mandatory terins of the 2014 DDA, as PEimONERS' and PLAINTIFFS REQUEST FOR CLARIRCATION RE COURT RULING RE PARTIES DEMURRERSTOAMENDED PETITION-COMPLAINT - 4 1 incorporated into the City's Ordinance, the City had an obligation to hold the hearing and make a 2 determination regarding the obligations of Boyd Gaming and Tribe to comply with the 2014 3 DDA. 4 Just as discussed in Intemational Brotherhood of Electrical Workers v. City of Gridley 5 (1983) 34 Cal.3d 191,197, Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 6 Cal.4* 525, 539 even a 'sketchy and frequently vague framework for enforcement, where 7 substantive duties are implicated', a court can compel the actions required or implied to be 8 required by the ordinance or statute. Here, the ordinance incorporates the 2014 DDA, and 9 Petitioners request that the Ruling clarify whether the writ of mandate will lie to compel the city 10 to enforce the mandatory terms of the 2014 DDA where the 2014 DDA has been incorporated 11 into a valid ordinance adopted by the City. 12 13 Dated: August 12.2017 Respectfully submitted, 14 BRIGIT S. BARNES & ASSOCIATES, INC., A CALIFORNL\ CORPORATION 15 16 17 18 for Petitioners 19 20 21 22 23 24 25 26 27 28 PEimONERS' and PLAINTIFFS REQUEST FOR CLARIHCATION RE COURT RULING RE PARTIES DEMURRERSTOAMENDED PETITION-COMPLAINT - 5 AMENDED COMPLAINT FILED 8-10-17 Case l:17-cv-00058-RDM Document26 Filed 08/10/17 Page lof 28 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOE TEDCEIRA 8217 Wooded Brook Drive Elk Grove, CA 95758, Civil Action No. 1:17-cv-00058-RDM PATTY JOHNSON 8713 Tulare Ct. Elk Grove, CA 95758, LYNN WHEAT 8770 Williamson Drive Elk Grove, CA 95624, and STAND UP FOR CALIFORNIA! P.O. Box 355 Penryn, CA 95663, Plaintiffs, UNITED STATES DEPARTMENT OF INTERIOR 1849 C Street, N.W. Washington, D.C. 20240, RYAN ZINKE, in his official capacity as Secretary of the Interior 1849 C Street, N.W. Washington, D.C. 20240, BUREAU OF INDIAN AFFAIRS, 1849 C Street, N.W. Washington, D.C. 20240, and MICHAEL BLACK, in his official capacity as Acting Assistant Secretary-Indian Affairs, 1849 C Street, N. W. Washington, D.C. 20240, Defendants, and WILTON RANCHERIA, CALIFORNIA, Intervenor-Defendant. AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 2 of 28 The Plaintiffs, Joe Teixeira, Patty Johnson, Lynn Wheat, and Stand Up for California!, by and through their counsel, hereby allege as follows: I. NATURE OF ACTION 1. This is an action for declaratory and injunctive relief brought by Plaintiffs challenging a January 19, 2017, Record of Decision ("ROD") approving an application to have 36 acres of land in the City of Elk Grove, Califomia ("Elk Grove Site") acquired in trust for the Wilton Rancheria for a casino. For two and a half years, the Elk Grove community understood that the Wilton Rancheria had applied to have 282 acres of land in Gait, Califomia ("Gait Site")—a town 12 miles south of Elk Grove—acquired in trust for casino development. Federal Register notices and an environmental impact statement ("EIS") the Bureau of Indian Affairs ("BIA") prepared for the Gait project confirmed the same. In July of 2016, however, the Wilton Rancheria indicated that it would prefer to build a casino in Elk Grove. BIA did not acknowledge the change or answer inquiries from the public until November 17, 2016, when it circulated a Notice of (Gaming) Land Application. A month later, BIA announced that it had completed a fmal EIS for public comment. 2. The sudden flurry of activity beginning after the November 8 election suggested that Defendants were racing to issue a trust decision and acquire title to the land before the change of Administration on January 20, 2017. Plaintiffs repeatedly reached out to the U.S. Department of the Interior ("Interior") regarding timing, public notice, related state proceedings, property encumbrances, and related issues. But Defendants dismissed those concems and rebuffed Plaintiffs' requests for a modest delay in acquiring title to allow them the opportunity to seek emergency judicial relief Plaintiffsfiledan emergency motion for temporary restraining order ("TRO") in this Court on January 11, 2017 (in anticipation of a pre- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 3 of 28 January 20, 2017 decision), seeking an order enjoining Defendants from immediately acquiring title pursuant to 25 C.F.R. §151.12. 3. At the January 13, 2017 hearing on the emergency TRO, Defendants represented to the Court that they had not made a final decision on the trust application, that they could not anticipate when they might be ready to do so (the comment period on the fmal EIS did not close until January 17), and that the decision might not be to approve the trust acquisition. The Court denied Plaintiffs' motion. Three working days later—on January 19—the Department issued a 90-page decision approving the application.' The decision was signed by Lawrence Roberts, who signed as the Principal Deputy Assistant Secretary - Indian Affairs. 4. Plaintiffs had no opportunity to retum to the Court to seek a preliminary injunction. After the hearing on January 13, Defendants informed Plaintiffs that they could "formally" request an administrative stay of the title transfer, pursuant to 5 U.S.C. § 705, which Plaintiffs subsequently did on January 17, 2017. That request remained pending on January 19, at which time Defendants informed Plaintiffs that the Elk Grove Site "will not formally go into trust at least until they provide you a response to the 705 stay request" and that they did not know when that would happen. Plaintiffs' request for a meeting was ignored. On February 10, Defendants informed Plaintiffs that their stay request under 5 U.S.C. § 705 was denied, as was their request for a meeting. On the same day, BIA officials formally recorded acceptance of title in trust to the Elk Grove Site. Because Defendants simultaneously acquired title and denied the 5 U.S.C. § 705 request, Plaintiffs were unable to renew their motion for preliminary injunction or challenge the denial. In fact, the Wilton Rancheria and an investor executed a grant deed days before the decision was announced. Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 4 of 28 5. On February 15, Plaintiffs asked for an explanation of the trust authority BIA exercised in accepting title in trust since the Principal Deputy Assistant Secretary who signed the ROD does not have authority to make final tmst decisions under agency regulations. When Defendants offered no explanation, Plaintiffs filed an administrative appeal on Febmary 21 because agency regulations demand exhaustion. Three days later, the Interior Board of Indian Appeals ordered any party who "contends that the ROD is final ... [to] state the legal grounds and provide all information and evidence relied on for that contention." Neither BIA nor the Rancheria responded. Instead, on March 7, 2017, Michael Black—purportedly acting as Acting Assistant Secretary-Indian Affairs—assumed jurisdiction ofthe appeal under the regulations governing non-final agency action. Four months later, on July 13, 2017—without the opportunity for briefing provided in the regulations—Black stated that the January 19, 2017 ROD constituted final agency action. 6. Chief Justice Roberts observed that the acceptance of land in trust is an "extraordinary assertion of power."^ And like every power assigned to a federal agency, there are fundamental limits on its exercise—those imposed by Congress and those that an agency imposes on itself by regulation. Congress has also limited which govemment officials may exercise certain powers as a "stmctural safeguard" and to "curb Executive abuses of the appointment power."^ In this case, since at least November 9, 2016, Defendants have acted as though none of these limitations apply. But a change in Administration does not leave the outgoing officials free to ignore the substantive and procedural limits Congress has imposed or those they have validly promulgated. It should not be a race to get as much done as possible. To ^ Oral Argument at 37:44, Carcieri v. Salazar, 555 U.S. 379 (2009) (No. 07-526), available at: https://www.oyez.org/cases/2008/07-526. ^ Edmondv. United States, 520 U.S. 651, 659 (1997). 4- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 5 of 28 the contrary, statutory and regulatory limits require the exercise of caution and restraint to facilitate the orderly transition of power. Yet Defendants ignored virtually every limitation that applies. 7. Plaintiffs seek a declaration that the Principal Deputy Assistant Secretary did not have authority to issue the January 19, 2017 ROD; that Defendants' February 10 Acceptance of Conveyance of the Elk Grove Site, as described in the Grant Deed dated January 16, 2017 and January 17, 2017, was ultra vires and without legal effect;"* and that Defendants' serial delegations violate the Federal Vacancies Reform Act, 5 U.S.C. § 3345(a)(1) ("FVRA"). Plaintiffs also seek a declaration that Defendants violated the Administrative Procedure Act, 5 U.S.C. §§ 501 etseg. and 701 etseq.; the Indian Reorganization Act ("IRA"), 25 U.S.C. §§ 5101 etseq.; the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701 etseq.; the National Environmental Policy Act, 42 U.S.C. §§ 4321 etseq., and the implementing regulations for each. The proper remedy is an order directing Defendants to invalidate the ROD and record a rescission of the February 10, 2017 acceptance of the grant deed, in order to remove the Elk Grove Site from trust. II. THE PARTIES 8. Plaintiffs Joe Teixeira, Patty Johnson, and Lynn Wheat are individuals who reside in Elk Grove, Califomia. They are harmed by the decision to acquire land in trust and the environmental impacts of the proposed casino. 9. Plaintiff Stand Up for California! ("Stand Up") is a California non-profit, public service corporation with a focus on gambling issues affecting Califomia. Since 1996, Stand Up has worked with individuals, community groups, elected officials, members of law ^ Exhibit 1. -5- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 6 of 28 enforcement, local public entities, the State of Califomia and state and federal policy makers on matters related to gaming. Stand Up has supporters throughout Califomia, including some residing in the Elk Grove area that will be affected by the environmental and economic impacts of the Rancheria's proposed trust acquisition and tribal casino. 10. Defendant Department of the Interior ("Interior") is a department of the United States government. Interior is charged with responsibility for managing and administering lands of Indian tribes and for managing and administering federal programs related to Indian tribes. 11. Defendant Ryan Zinke is the Secretary of the Interior ("Secretary"), and in that capacity is responsible for overseeing and managing all programs, activities, and operations of Interior relating to Indian lands and affairs. He is sued in his official capacity only. 12. Defendant Bureau of Indian Affairs ("BIA") is a federal agency within Interior and is responsible for overseeing and managing all programs, activities, and operations of the Interior relating to Indian lands and affairs. 13. Defendant Michael Black is the Special Assistant to the Director ("Special Assistant"), Bureau of Indian Affairs. According to Secretarial Order No. 3345, Mr. Black, as Special Assistant to the Director, has been delegated "[a]ll functions, duties, and responsibilities" of the Assistant Secretary-Indian Affairs. Section 4 of this Order limits Black's delegated authority to "only those functions or duties that are not required by statute or regulation to be performed only by the Senate-confirmed official occupying the position." He is sued in his official capacity only. 14. Intervenor-Defendant Wilton Rancheria, Califomia, is a federally recognized Indian Tribe. -6- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 7 of 28 15. Interior and BIA are agencies within the meaning of the APA, 5 U.S.C. § 701(b)(1). IIL JURISDICTION AND VENUE 16. The Court has both subject matter and personal jurisdiction under 28 U.S.C. § 1331; the APA, 5 U.S.C. §§ 702, 706; and 28 U.S.C. §§ 2201-2202; and this Court's equitable powers. 17. Venue is proper in the federal district court for the District of Columbia under 28 U.S.C. § 1391(b) and (e)(2) because the United States, one ofits agencies, and one ofits officers in his official capacity are Defendants and a substantial part of the events affected by the litigation is related to this district. 18. The United States waived sovereign immunity from suit under 5 U.S.C. § 702. 19. There is an actual controversy between the parties that invokes the jurisdiction of this Court regarding decisions by, and actions of, the Defendants that are subject to review by this Court. It is the Department's position that there has been a final agency action that is reviewable by this Court. 25 C.F.R. § 2.6(c); 5 U.S.C. § 704. IV. STATUTORY FRAMEWORK 20. Pursuant to the Califomia Rancheria Termination Act of 1958, Public Law 85- 671 (72 Stat. 619), Congress ordered the Secretary to develop a plan that distributes the land and assets of certain enumerated Rancherias, including Wilton Rancheria. Under the Act, all Indians who received a portion of Rancheria assets are thereafter ineligible to receive federal services based on their status as Indians. The Act declares "all statutes of the United States which affect Indians because of their status as Indians shall be inapplicable to them." Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 8 of 28 21. Section 5 of the Indian Reorganization Act of 1934 authorizes the Secretary to acquire land in trust for "Indians." 25 U.S.C. § 5108. Section 19 defines "Indians" to include "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." 25 U.S.C. § 5129. In Carcieri v. Salazar, 555 U.S. 379 (2009), the Court held that "the term 'now under Federal jurisdiction' in § [5129] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934." M a t 395. 22. In 2013, the Department revised 25 C.F.R. § 151.12, entitled "Action on requests." Subsection (c) provides: "A decision made by the Secretary, or the Assistant Secretary - Indian Affairs pursuant to delegated authority, is a final agency action under 5 U.S.C. 704 upon issuance." 25 C.F.R. § 151.12(c). Subsection (d) provides: "A decision made by a Bureau of Indian Affairs official pursuant to delegated authority is not afinalagency action of the Department under 5 U.S.C. 704 until administrative remedies are exhausted under part 2 of this chapter or until the time for filing a notice of appeal has expired and no administrative appeal has been filed." 25 C.F.R. § 151.12(d). 23. The Federal Vacancies Reform Act, 5 U.S.C. §§ 3345-3349d, limits the authority of certain Executive Branch officials when a vacancy occurs in an office held by a Senate-confirmed Presidential appointee. Section 3348 of this Act prohibits any officer or employee of an agency from performing any function or duty of such vacant office when a statute or regulation requires that function or duty to be performed personally by the Senate- confirmed officer and only that officer. 24. The Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq. ("IGRA"), prohibits gambling on lands taken into trust for Indians after 1988, except under limited 8- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 9 of 28 exceptions. Under the restored lands exception, the Secretary must find that the land to be taken into trust is part ofthe restoration of lands for an Indian tribe that is restored to Federal recognition." 25 U.S.C. § 2719(b)(l)(B)(iii); 25 C.F.R. § 292.7. In addition, the land must qualify as "Indian lands" under the Act. 25 U.S.C. § 2703(4). 25. The National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"), requires federal agencies to take a "hard look" at the environmental consequences of their proposed actions and make information on the environmental consequences available to the public. The implementing regulations at 40 C.F.R. Parts 1500-1508 establish how NEPA is to be implemented. V. STATEMENT OF FACTS A. Background on the Wilton Rancheria 26. In 1928, the Department purchased approximately 37.88 acres to establish the Wilton Rancheria "for use by the landless Califomia Indians." The Sacramento Indian Agency selected the site in November 1927 for the approximately 33 families of 150 homeless Indians of various ethnological backgrounds residing in the vicinity. 27. In 1935, the various Indians living on the Rancheria voted to organize under Section 16 ofthe IRA. The Assistant Commissioner of Indian Affairs approved their governing documents in 1936. Self-governance activities continued until approximately 1940. Between 1940 and 1952, there is no record of any self-govemance activities. 28. In 1952, residents voted to accept termination of federal guardianship. The Secretary included the Wilton Rancheria in the third round of proposed termination legislation, which Congress enacted as the Califomia Rancheria Termination Act, Public Law 85-671 (Aug. 18,1958). -9- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 10 of 28 29. The Secretary distributed the assets of the Rancheria to the Indians then living on the Rancheria pursuant to a distribution plan approved by the Commissioner of Indian Affairs on July 6, 1959. On September 22, 1964, the Secretary published notice of termination of federal supervision overthe Indians living on the Rancheria. 29 Fed. Reg. 13146 (Sept. 22, 1964). 30. On May 21, 2007, the Wilton Miwok Rancheria Interim Tribal Council sued the United States as the "Wilton Miwok Rancheria" to be restored to federal recognition. Compl., Wilton Miwok Rancheria v. Kempthorne, No. 5:07-cv-02681-JF (N.D. Cal. May 21, 2007), ECF No. 1. The United States settled with the group on June 4, 2009, by stipulating that termination ofthe Wilton Rancheria was not lawfully executed and "restoring" the plaintiffs to the status as a federally recognized tribe. Judgment, Wilton Miwok Rancheria v. Kempthorne, No. 5:07-cv- 02681-JF (N.D. Cal. July 16, 2009), ECF No. 62. B. The Trust Application for the Gait Site 31. On December 4, 2013, BIA issued a Notice of Intent to Prepare an EIS for the proposed acquisition of the Gait Site in trust for the Wilton Rancheria. 78 Fed. Reg. 72928-01 (Dec. 4, 2013). The Notice states that the Rancheria applied to have "approximately 282 acres of fee land ... located within the City of Gait Sphere of Influence Area" acquired "in trust in Sacramento County, California, for the construction and operation of a gaming facility." 32. BIA held a public scoping meeting in Gait on December 19, 2013, seeking public comment on the application for purposes of identifying issues to consider in the NEPA analysis. Id. BIA invited Gait to participate as a cooperating agency. 33. In February 2014, BIA issued an EIS Scoping Report identifying the Gait Site as the proposed project. The Scoping Report identified five other reasonable altematives, 10- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 11 of 28 including an approximately 28-acre site in Elk Grove—a portion of a larger approximately 100- acre site that was approved for development as an open-air mall. 34. BIA issued a Notice of Availability for the draft EIS on the proposed Gait acquisition on December 29, 2015. 80 Fed. Reg. 81,352 (Dec. 29, 2015). 35. On June 9, 2016, the Wilton Rancheria held a public meeting in Elk Grove to announce that it would prefer to have the Elk Grove Site acquired in trust for its casino. 36. The Elk Grove Site is encumbered by a development agreement adopted by city ordinance in which the 100-acre site would be developed as an outlet mall in two phases. In the development agreement, the City of Elk Grove reserved the right, among other things, to grant or deny land use approvals; adopt, increase, and impose regular taxes, utility charges, and permit processing fees; adopt and apply regulations necessary to protect public health and safety; adopt increased or decreased fees, charges, assessments, or special taxes; adopt and apply regulations relating to the temporary use of land, control of traffic, regulation of sewers, water, and similar subjects and abatement of public nuisances; adopt laws not in confiict with the terms and conditions for development established in prior approvals; and exercise Elk Grove's power of eminent domain with respect to any part of the property. 37. On September 27, 2016, Plaintiffs Joe Teixeira, Lynn Wheat, and Stand Up requested that BIA prepare a supplemental EIS to address the Rancheria's apparent change in its proposed project from the 282 -acre Gait Site to the 28-acre Elk Grove Site. BIA did not respond to the request. C. The Change in Proposed Project to the Elk Grove Site 38. On November 17, 2016, BIA issued a Notice of (Gaming) Land Application for the Elk Grove Site. On December 14, 2016, BIA published a notice of the final EIS, which II - Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 12 of 28 identified the 36-acre Elk Grove Site as the project proposal for the first time—not the original 282-acre Gait Site or the 28-acre altemative site in Elk Grove. See 81 Fed. Reg. 90379-01 (Dec. 14, 2016). Two days later, on December 16, 2016, EPA issued a Notice of Availability of the final EIS in the Federal Register. See 81 Fed. Reg. 91169 (Dec. 16, 2016). 39. Defendants' notice of availability for the final EIS changed the Proposed Action from the 282-acre Gait Site to the 36-acre Elk Grove Site. Defendants did not: a. Prepare a supplemental EIS; b. Provide notice of the change of the Proposed Action or seek public comment on the 36-acre Elk Grove Site before issuing afinalEIS; c. Adequately evaluate environmental impacts; d. Circulate for public comment new reports related to economic impacts, cultural resources, traffic impacts, air quality modeling, and other issues never previously disclosed before issuing afinalEIS; e. Defendants did not respond to all comments included in the administrative record before issuing a final EIS; and f. Defendants did not clearly or accurately relate facts and applicable laws. 40. Between December 29, 2016 and January 9, 2017, Plaintiffs made several requests with the Secretary to delay the acquisition of title in tmst upon fmal decision to allow Plaintiffs to seek preliminary injunctive relief from the Court. Defendants refused Plaintiffs' requests. Plaintiffs additionally filed comments on the trust application and the EIS, and raised questions regarding the Rancheria's eligibility for trust land. 41. On January 11, 2017, Plaintiffs filed a complaint and Emergency Motion for a Temporary Restraining Order and Preliminary Injunction in this Court asking the Court to enjoin Defendants from immediately acquiring title to the Elk Grove Site in trust upon final decision. On January 13, 2017, the Court denied Plaintiffs' motion. - 12- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 13 of 28 42. In discussing possible schedules for briefing of their motion for preliminary injunction, counsel for Defendants informed Plaintiffs' counsel that the Department did not consider Plaintiffs' requests for a modest delay to have been formal requests for a stay, pursuant to 5 U.S.C. § 705. 43. Plaintiffs and Defendants subsequently agreed not to proceed with preliminary injunction briefing, and Plaintiffs submitted a formal request for a stay under 5 U.S.C. § 705 on January 17, 2017. 44. On January 18, 2017, Plaintiffs informed the Court that Plaintiffs would "review any final decisions and confer with Defendants at that time as to the necessity of and timing for seeking emergency and/or preliminary injunctive relief" Dkt. 6 at 2. 45. On January 19, 2017, the Principal Deputy Assistant Secretary signed a ROD that approved the Wilton Rancheria's trust application. That document does not: a. Adequately address whether the Wilton Rancheria qualifies for trust land under the IRA or the Califomia Rancheria Termination Act; b. Accurately reflect that the Elk Grove Site is encumbered by restrictive covenants or take a consistent position with respect to their effect; c. Adequately address whether land subject to restrictive covenants can qualify as "Indian lands" under IGRA; d. Clearly address the applicability or effect of the restrictive covenants that run with the Elk Grove Site; and e. Correctly conclude the Wilton Rancheria meets the requirements of the restored land exception to IGRA because the Wilton Rancheria "qualifies as a 'restored tribe'" and the Elk Grove site "qualifies as 'restored lands.'" 46. Lawrence Roberts issued the ROD on the evening of January 19, 2017 in his capacity as Principal Deputy Assistant Secretary. He did not purport to act, and could not have legally acted, as Acting Assistant Secretary, pursuant to the Vacancies Reform Act, 5 U.S.C. § 3346(a). Under that Act, Mr. Roberts, who assumed the role of Acting Assistant Secretary on or - 13- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 14 of 28 about January 1,2016, was prohibited from serving as Acting Assistant Secretary for more than 210 days. Accordingly, any authority Mr. Roberts had to take acfion under 25 C.F.R. § 151.12 terminated on or about August 3, 2016. D. Post-January 19,2017 ROD Proceedings 47. Upon hearing that a decision might have been made, Plaintiffs contacted Defendants through counsel on the evening of January 19, 2017 to request a copy of the ROD and to confirm status of the title to the land. 48. Defendants provided an incomplete copy of the ROD on January 19 and informed Plaintiffs that the Elk Grove Site would not formally go into trust at least until Defendants responded to Plaintiffs' § 705 stay request. Defendants did not know when their response would be forthcoming. 49. On January 23, 2017, Plaintiffs contacted Defendants through counsel to discuss amending their complaint and the possibility of expedited review or of reaching an agreement regarding the transfer of title. Plaintiffs also requested information regarding the timing of Defendants' response to Plaintiffs' § 705 request. 50. Defendants responded through counsel on January 24 that Defendants were still considering Plaintiffs' § 705 request and they did not know when they would resolve that request. Defendants also indicated that they would consider Plaintiffs' request to discuss an agreement to alleviate the need for emergency or expedited proceedings but could not indicate when they would respond. 51. On January 26, 2017, Plaintiffs formally requested a meeting with Defendants through counsel to discuss concems regarding the "unprecedented nature" of the ROD and a reasonable timeline for resolving Plaintiffs' challenge. 14- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 15 of 28 52. On Febmary 6, 2017, Plaintiffs contacted Defendants through counsel to obtain a response to their meeting request of January 26. Counsel for Defendants indicated that he believed that they were "still considering it." 53. The moming of February 10, 2017, Westcor Land Title Insurance Company issued a chain of title guarantee to Boyd Gaming for the Elk Grove Site, subject to certain exclusions from coverage, including: a. Any law, ordinance or govemmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or environmental protection, or the effect of any violation of any such law, ordinance or governmental regulation, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Guarantee; b. Rights of eminent domain or govemmental rights of police power; and c. Defects, liens, encumbrances, adverse claims, or other matters (a) known, created, suffered, assumed or agreed to by the guaranteed claimant; (b) resulting in no loss or damage to the guaranteed claimant; (c) attaching or created subsequent to Date hereof; or (d) resulting in loss or damage which would not have been sustained if the guaranteed claimant had paid value for the estate or interest guaranteed by this title guarantee.^ 54. The same day, Lorrae Russell, a Realty Specialist for Defendants, notarized Defendants' Acceptance of Conveyance of the Grant Deed dated January 16, 2017 and January 17, 2017. The Sacramento County Recorder recorded the January 16/17 Grant Deed and Defendants' Conveyance of Acceptance that afternoon. 55. At close ofbusiness the same day. Defendants sent Plaintiffs through counsel a letter from Mr. Black, who signed as Acting Assistant Secretary, denying Plaintiffs' § 705 ^ Exhibit 2. - 15- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 16 of 28 request. The email also stated that Defendants were denying Plaintiffs' January 26 meeting request. At the time Plaintiffs received notice of Defendants' decisions, Defendants had formally accepted title to the Elk Grove Site and were in the process of recording their acceptance. There was no opportunity for Plaintiffs to renew their motion for emergency relief from this Court. 56. On February 15, 2017, Plaintiffs contacted Defendants through counsel to request the authority pursuant to which title was acquired. Plaintiffs noted that the January 19, 2017 ROD was signed by the Principal Deputy Assistant Secretary and that agency regulations do not authorize a Principal Deputy Assistant Secretary to issue final trust decisions. Plaintiffs noted that Defendants cannot accept title to land in tmst unless the trust decision is made by the Secretary or the Assistant Secretary-Indian Affairs. Defendants did not respond. 57. Agency regulations require interested parties to exhaust their administrative remedies for non-final agency decisions. Having received no explanation from Defendants regarding the authority for their actions, Plainfiffsfileda Notice of Appeal, a Petition for Preliminary Relief, and a Statement of Reasons with the Interior Board of Indian Appeals ("Board") on February 21, 2017. 58. On February 24, 2017, the Board issued a Pre-Docketing Notice and Order for Briefing on Jurisdiction, ordering the BIA and other interested parties to brief, by March 17, 2017, whether the ROD was final for the Department, and therefore whether the Board had jurisdiction over the appeal. 59. On March 7, 2017, Michael S. Black, signing as "Acting Assistant Secretary— Indian Affairs," advised the Board that he was assuming jurisdicfion over the appeal pursuant to 25 C.F.R. § 2.20(c) and 43 C.F.R. § 4.332(b)—the regulations that govem administrative - 16- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 17 of 28 appeals. The Board vacated the briefing order on March 8 and transferred the appeal to Mr. Black. 60. On March 15, 2017, Plaintiffs filed an Objection to Mr. Black's Assumption of Jurisdiction and Request for Reconsideration, based on the FVRA, which the Board provided to Mr. Black on March 17, 2017. 61. On March 30, 2017, Plaintiffs submitted a request to the Secretary, asking that he review: (1) the January 19, 2017, ROD; (2) the February 10, 2017, action to acquire the Elk Grove Site in trust; and (3) the March 17, 2017, assumption of jurisdiction over Plaintiffs' administrative appeal. The Secretary did not respond to Plaintiffs' request. Mr. Black did not issue a briefing schedule, as provided for in 25 C.F.R. § 2.20(e). Mr. Black also did not issue a decision "within 60 days after all time for pleadings (including all extensions) has expired." Id. 62. On July 13, 2017, Mr. Black, signing as "Acting Assistant Secretary—Indian Affairs," issued an Order Dismissing Administrative Appeal, on the grounds that the January 19, 2017, ROD was final for the Department. Mr. Black's decision document stated that he was authorized to issue his decision pursuant to authority delegated to him in Secretarial Order 3345 and through other delegations of authority contained in the Departmental Manual. 63. Defendants' actions have deprived Plaintiffs of their proceduralrightsunder a variety of statutes and directly impact the community in which Plaintiffs reside and the interests Stand Up protects. The acquisition of land in tmst for a casino will result in traffic, noise, light, crime, problem gambling, and other impacts, substantially altering the Elk Grove community. These decisions injure Plaintiffs' procedural, economic, environmental, and aesthetic interests. - 17- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 18 of 28 COUNT I (Declaratory and Injunctive Relief—Acquisition of Trust Land in Violation ofthe FVRA, Departmental Regulations, and the APA) 64. Each of the foregoing allegations is incorporated herein by reference. 65. Pursuant to 25 C.F.R. § 151.12, the only officials authorized to take action on a trust request are: (1) the Secretary of the Interior; (2) the Assistant Secretary-Indian Affairs, pursuant to delegated authority; and (3) Bureau of Indian Affairs officials, pursuant to delegated authority. Only decisions made by the Secretary and the Assistant Secretary-Indian Affairs are final forthe Department. 25 C.F.R. § 151.12(c). Decisions made by BIA officials pursuantto delegated authority are not final forthe Department. 25 C.F.R. § 151.12(d). 66. Any party who wishes to seek judicial review of a trust decision by a BIA official must first exhaust administrative remedies under 25 C.F.R. Part 2. 25 C.F.R. § 151.12(d)(4). Title to land cannot be taken into trust until after the time for filing a notice of appeal has expired or upon exhaustion of administrative remedies under 25 C.F.R. Part 2, at which point the decision becomes final. 25 C.F.R. § 151.12(d), (d)(2)(iv). 67. The FVRA limits who may be appointed on a temporary basis to serve in the role of a political appointee subject to Senate confirmation, who may automatically serve, and for how long they may serve. 5 U.S.C. §§ 3345-3349d. If an officer of an Executive agency whose appointment must be made by the President, with the advice and consent of the Senate, resigns, the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity for no more than 210 days. 5 U.S.C. §§ 3345(a)(1), 3346(a)(1). 68. Pursuant to the FVRA, Mr. Roberts automatically became the Acting Assistant Secretary-Indian Affairs on or about January I , 2016. See 5 U.S.C. § 3345(a)(1). Pursuant to 5 18- Case l:17-cv-00058-RDM Document 26 Filed 08/10/17 Page 19 of 28 U.S.C. § 3346(a)(2), Mr. Roberts ceased serving as the Acting Assistant Secretary-Indian Affairs on or about July 29, 2016. 69. On January 19, 2017, Mr. Roberts was not: (1) the Secretary; (2) the Assistant Secretary, acting pursuant to delegated authority; or (3) a BIA official, acting pursuant to delegated authority. Agency regulations do not authorize Mr. Roberts, as Principal Deputy Assistant Secretary, to take action on a trust request. Mr. Roberts was statutorily prohibited from "perform[ing] the functions and duties" of the Office of the Assistant Secretary-Indian Affairs after July 29, 2016, for any function or duty required by statute or regulation to be performed personally by the Assistant Secretary-Indian Affairs. 70. The ROD Mr. Roberts issued on the evening of January 19,2017 was ultra vires, in violation of agency regulations and the FVRA. 71. The acquisition of title to the Elk Grove Site on February 10, 2017, was ultr