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In United Auburn Indian Community of the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, the Third Appellate District affirmed the trial court and rejected challenges to Governor Brown’s concurrence in a determination made by the Secretary of the Interior (“Secretary”) concerning the Enterprise Rancheria of Maidu Indians of California’s (“Enterprise Tribe”) request to acquire a site in Yuba County to construct a casino/hotel resort complex on the site.

The Indian Reorganization Act (“IRA”) authorizes the Secretary to acquire land for Indians. The federal Indian Gaming Regulatory Act (“IGRA”) permits gaming on Indian lands taken into trust for the benefit of a tribe after October 17, 1988, if the Secretary determines that it would be in the best interest of the tribe and would not be detrimental to the surrounding community and the governor of the state in which the gaming activity is located concurs in the Secretary’s determination.

After the U.S. Department of the Interior (“Department”) completed its NEPA review concerning the Enterprise Tribe’s site acquisition request, the Assistant Secretary for the Indian Affairs (“Assistant Secretary”) made a determination favorable to the Enterprise Tribe. After Governor Brown concurred in the Assistant Secretary’s determination in August 2012, the plaintiff, which owned the Thunder Valley Resort and Casino located approximately 20 miles from the project site, challenged the validity of the Governor’s concurrence on the ground that it constituted an illegal exercise of legislative power.

The court rejected the plaintiff’s argument that the Governor violated the separation of powers clause in the state Constitution by exercising a legislative power when he concurred in the Secretary’s determination. According to the court, the Governor’s concurrence was an executive act because he simply performed one part of IGRA, a federal program in which the state legislature decided to participate. The court also rejected the plaintiff’s contention that the Governor impermissibly exercised a legislative power by setting land use policy or tax policy through his concurrence in the Secretary’s decision.

Without much discussion, the court also held that the Governor’s concurrence was not a project pursuant to CEQA because the Governor is not a public agency.

Key Point:  

The Governor’s concurrence in a determination made by the Secretary of the Interior under IGRA does not violate the separation of the powers clause in the state Constitution. In addition, the Governor’s concurrence in such determinations does not constitute a project because the Governor is not a public agency under CEQA.