Federal judge orders California to complete tribe compacts

A federal judge has ordered Gov. Gavin Newsom to complete gaming compacts with five California Indian tribes within 60 days.

U.S. Senior Judge Anthony W. Ishii's Wednesday summary judgment order marks the first major break in a series of cases arguing the Newsom administration had violated the terms of the Indian Gaming Regulatory Act.

"The tribal plaintiffs have met their burden of producing evidence the state defendants did not negotiate in good faith by raising topics in negotiations that were beyond the scope permitted by IGRA or which required a meaningful concession in return," Ishii wrote.

The California Department of Justice deferred comment to the governor's staff, who did not respond to an email. Chicken Ranch Rancheria of Me-Wuk Indians v. California, 1:19-cv-00024-AWI-SKO (E.D. Cal., filed Jan. 4, 2019).

The ruling will benefit five tribes that were trying to renew gaming compacts they signed in 1999. These expired on Dec. 31, but were automatically extended to June 30, 2022 under the terms of the original deals. The five tribes are the Blue Lake Rancheria, Chemehuevi Indian Tribe, the Hopland Band of Pomo Indians, the Robinson Rancheria and Chicken Ranch Rancheria of Me-Wuk Indians.

"This decision was entered into on behalf of the five tribes that brought the litigation," said Lester J. Marston, a partner with Rapport & Marston in Ukiah who is part of the tribes' legal team. "I think there's at least eight other lawsuits and maybe more. Now that we've gotten this decision I'm sure there will be more."

The case was part of a growing wave of litigation filed by tribes claiming the state was negotiating in bad faith with tribes seeking compacts or renewals. Ishii wrote the topics under negotiation must "bear a direct relationship to the operation of gaming activities," quoting Rincon Band of Luiseno Mission Indians of the Rincon Reservation v. Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010). The state can bring other topics into the discussions, but only if it offers meaningful concessions in return, Ishii wrote.

According to the complaint first filed by Chicken Ranch and two other tribes, the state brought in many concerns unrelated to gaming, without offering such concessions. The topics included labor and minimum wage laws, environmental laws, and state-ordered spousal and child support. They filed the original complaint against Gov. Jerry Brown just days before Newsom took office.

Marston said the state raised nine areas of negotiation, each of which Ishii ruled was completely out of bounds or needed to be offset by meaningful concessions. As an example, he said the state could ask a tribe to pay a fee for allowing off-reservation gaming. But the state could not offer an increase in the number of allowed slot machines, because this is a core topic covered by the act.

Attorneys for the state argued the topics were permissible and that taking a "hard line negotiating position" does not mean it was operating in bad faith, citing Pauma Band of Luiseno Mission Indians v. California, 18-56457 (9th Cir., filed Oct. 30, 2018).

While the tribes expect the state will probably appeal, another attorney on their team said Ishii's ruling will offer a way forward for others.

"For other tribes this is something they can rely on in the future if the state tries to insist on the same subjects," said Kostan R. Lathouris with Lathouris Law PLLC in Henderson, Nevada. "They can point to this case and say, 'What are we getting that's meaningful in return?'"