In a published decision filed September 24, 2014, the Third District Court of Appeal (per Justice Robie) held that CEQA’s definition of a “public agency” that is subject to its requirements (see Pub. Resources Code, § 21063) applies only to governmental bodies, not individuals. Governor Brown was therefore not subject to CEQA compliance as a prerequisite to his concurrence in the Secretary of the Interior’s (“Secretary”) federal determination made under the Indian Gaming Regulatory Act (“Indian Gaming Act”; 25 U.S.C. § 2701 et seq.) that a new Indian gaming establishment in Madera County would not be detrimental to the surrounding community. Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (NP Fresno Land Acquisitions LLC, RPI) (3d Dist. 2014) 229 Cal.App.4th 1416, No. C074506.
The litigation arose when one tribe already operating a resort and casino land on its Madera County Rancheria (the Picayune Tribe) wanted to stop another (the North Fork Tribe) from “moving in on its action” by acquiring land and building a casino 30 miles away. While the Indian Gaming Act generally prohibits casino gaming on lands acquired by the Secretary for a tribe after late 1988, an exception exists where the Secretary finds a gaming establishment would be in the tribe’s best interest and would not be detrimental to the surrounding community if the Governor of the relevant State concurs. (25 U.S.C. § 2719(a).) Here, the Secretary made the finding necessary to allow the North Fork Tribe’s casino, and Governor Brown – without conducting CEQA review – concurred, thereafter entering into a tribal-state gaming compact which was subsequently ratified by the Legislature.
The trial court sustained demurrers to the Picayune Tribe’s ensuing CEQA action against the Governor without leave to amend, on the ground that as a matter of law the Governor is not a “public agency” for CEQA purposes. The Third District affirmed, treating the case as a straightforward matter of statutory construction. Notwithstanding the Supreme Court’s “long ago” pronouncement in Friends of Mammoth that CEQA must “be interpreted so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language,” the Legislature later added Public Resources Code § 21083.1, making clear that courts “shall not interpret [CEQA] or [its] guidelines … in a manner which imposes procedural or substantive requirements beyond those explicitly stated in [the statute] or … guidelines.” Thus, “the literal, i.e., explicit, approach to statutory construction is [now] mandatory under CEQA.” (Quoting Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1515.)
Under this approach, it was clear that the statutory definition of a “public agency” subject to CEQA included only governmental bodies, rather than officials or individuals like the Governor. (See Pub. Resources Code, § 21063 [“any state agency, board, or commission, any county, city and county, city, regional agency, public district, redevelopment agency, or other political subdivision”].) The Picayune Tribe did not sue a government body or office, but, rather, an individual – the Governor – in whom the State’s executive power is constitutionally vested. The Governor, as an individual, took the challenged action under the Indian Gaming Act. The court harmonized other statutes expressly exempting certain actions relating to state-tribal compacts from CEQA, refusing to draw an inference that the Legislature must have considered the Governor to be a “public agency” otherwise subject to CEQA, and reasoning that it may just as likely have intended through the exemptions to foreclose any argument that the tribes were subject to CEQA. In any event, it was unnecessary for the court to conclude that a CEQA “public agency” must include the Governor in order to give the exemptions meaning.
This case is important for its holding that California’s Governor is categorically exempt from CEQA – a ruling that must absolutely delight Governor Brown – and it has some other interesting elements, including a flavor of judicial CEQA reform. The Court faithfully follows the legislatively-mandated explicit “textual” approach to interpretation of CEQA – which it recognizes has superseded the “long ago” expansive interpretation judicially espoused in Friends of Mammoth – and it does so in a context that highlights why many have called for broader CEQA standing reform. Simply put, this appears to have been CEQA litigation brought for purely economic reasons by one business competitor against another.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.