By Elaine Briseño
Law360 (December 13, 2022, 6:47 PM EST) — The Alturas Indian Rancheria tribe has urged a California federal court not to toss portions of its lawsuit chastising the governor for failing to negotiate in good faith a new gaming compact that is materially identical to the one currently in place.
California Gov. Gavin Newsom and the state filed a motion Nov. 14 asking a California federal judge to nix the tribe’s sixth claim — failure to submit a materially identical compact — and seventh claim — failure to negotiate in good faith — because they do not have a “cognizable legal theory” behind them.
In its Monday brief, the tribe said it opposes the motion and asked for summary judgment on both claims. It says any compact negotiations should be limited only to non-material terms and the governor cannot refuse to negotiate and execute a materially identical tribal-state compact.
The Monday brief argues the Legislature has the power to limit the governor’s constitutional power to negotiate and that it should be given the opportunity to review a pact with materially identical terms.
“The state defendants have argued that the governor can block the Legislature from performing its constitutional and statutory function of ratifying, or even reviewing, a materially identical tribal-state compact … by choosing to not act. He cannot,” the brief said.
The tribe and the governor had been in talks about a new compact when negotiations stalled and the tribe filed a lawsuit seeking an order declaring Newsom’s attempts to force the tribe to renegotiate the 1999 pact were illegal. California broke off negotiations with Alturas leaders in August, and the tribe filed its lawsuit Aug. 22.
Alturas is attempting to renew the gambling license it was granted under the 1999 tribal-state gaming compact. The tribe’s existing gambling license expires in December 2023. The tribe initially asked Gov. Newsom to present a materially identical pact before the Legislature for review and approval but, according to the lawsuit, the governor refused, “unlawfully claiming that Alturas was required to negotiate material compact terms.”
“After agreement between the governor and Alturas for materially different terms appeared unlikely, Alturas fell back on its statutory right to request the governor to execute a compact that is materially identical to its 1999 compact,” Alturas said in its brief.
At the crux of the friction are requirements the state is proposing in the new compact. New provisions include state-mandated environmental reviews before any gambling-related construction can begin, minimum wage and overtime laws for workers, and waiving of sovereign immunity from certain tort claims in tribal court.
The new requirements could also hit the tribes’ pocketbooks. The state wants to impose a revenue-sharing plan that would let it allocate gambling funds “with substantial discretion,” the tribe claims, including programs that are “completely unrelated” to gambling regulation.
California, which has been renegotiating the 1999 gambling compact that it extended uniformly to 57 tribes, has drawn scrutiny over its regulatory demands from federal authorities and Native tribes — including five that sued the state in 2019 alleging violations of the Indian Gaming Regulatory Act.
That litigation wound up in the Ninth Circuit, whose July 28 ruling found that California’s insistence on including family law, environmental law and tort provisions in the new gambling compacts “crossed the line in negotiating far outside [the Indian Gaming Regulatory Act]-permitted list of compact negotiation topics.”
Saying the federal law “sharply limits the permissible topics of negotiation to prevent states from misusing their compact approval powers to unduly infringe on tribal sovereignty,” the appellate majority found the state had acted in bad faith.
Representatives for the plaintiffs and defendants did not immediately respond to a request for comment.
The Alturas Indian Rancheria is represented by John M. Peebles, Patrick R. Bergin, Michael A. Robinson, Tim Hennessy, Steven J. Bloxham and Curtis Vandermolen of Peebles Kidder Bergin & Robinson LLP.
California and Newsom are represented by Sara J. Drake, T. Michelle Laird, Timothy M. Muscat and B. Jane Crue of the California Office of the Attorney General.
The case is Alturas Indian Rancheria v. Newsom et al., case number 2:22-cv-01486, in the U.S. District Court for the Eastern District of California.
–Additional reporting by Joyce Hanson. Editing by Philip Shea.