JAMUL ACTION COMMITTEE, JAMUL COMMUNITY CHURCH

Transcription

Case: 15-16021, 06/29/2015, ID: 9592795, DktEntry: 20-2, Page 1 of 68
No. 15-16021
UNITED STATES COURT OF APPEAL
FOR THE NINTH CIRCUIT
JAMUL ACTION COMMITTEE, JAMUL COMMUNITY CHURCH,
DARLA KASMEDO, PAUL SCRIPPS, GLEN REVELL,
and WILLIAM HENDRDC
Plaintiffs-Appellants
v.
TRACIE STEVENS, Former Chair of the NIGC; JONODEV CHAUDHURI,
Chairman of the NIGC; DAWN HOULE, Chief of Staff for the NIGC; SALLY
JEWELL, Secretary of the Interior; KEVIN WASHBURN, Assistant Secretary Indian Affairs; PAULA HART, Director of the OIG; AMY DUTSCHKE,
Regional Director BIA;JOHN RYZDIK, Chief, Environmental Division, BIA;
U.S. DEPT. OF INTERIOR; NATIONAL INDIAN GAMING COMMISSION;
RAYMOUND HUNTER; CHARLENE CHAMBERLAIN; ROBERT MESA;
RICHARD TELLOW; JULIA LOTTA;PENN NATIONAL, INC.; SAN DIEGO
GAMING VENTURES, LLC; and C.W, DRIVER INC.
Defendants-Appellees
On Appeal from the United States District Court
For the Eastern District of California
Case No. 2:13-cv-01920 KJM-KLN
Honorable Kimberly J. Mueller, District Judge
APPELLANTS' ATTACHMENTS IN SUPPORT OF REPLY TO
APPELLEES' OPPOSITION TO URGENT MOTION
KENNETH R. WILLIAMS
Attorney at Law
980 9th Street, 16th Floor
Sacramento, CA 95814
Telephone: (916)449-9980
ATTACHMENT 1
ase 2:13-cv-01920-KJM-KJN Document 60-3 Filed 01/02/15 Page 1 of6
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KENNETH R. WILLIAMS, State Bar No. 73170
Attorney at Law
980 9* Street, 16* Floor
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Telephone: (916)543-2918
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Attorneyfor Plaintiffs
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Jamul Action Committee, Jamul Community Church,
DarlaKasmedo, PaulScripps, Glen Revell, and
William Hendrix
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Case No. 2:13-cv-01920-KJM-KJN
JAMUL ACTION COMMITTEE ET AL.
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DECLARATION OF MARCIA
Plaintiffs, SPURGEON IN SUPPORT OF
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PLAINTIFFS' MOTION FOR A WRIT
OF MANDATE AND FOR A
PRELIMINARY INJUNCTION
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v.
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Date: January 30,2015
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Time: 10:00 a.m.
Place: Courtroom No. 3,15thFloor
TRACIE STEVENS, ET AL
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Defendants
Before: Honorable Kimberly J. Mueller
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I, Marcia Spurgeon, hereby declare that:
1. Ihave personal knowledge of, and am competent to testify to, the facts included in this
declaration.
2. I am the Secretary ofthe Jamul Action Committee (JAC), the lead Plaintiffinthis case.
This declaration is submitted support ofPlaintiffs' motion for awrit ofmandate and a
preliminary injunction.
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DECLARATION OF MARClA SPURGEONWJMfOKt OF ™™™™**™£ti&
MANDATE AND FOR A PRELIMINARY INJUNCTION (Case No. 2:13-cv-01920 KJM KJN)
ER0154
Case 2:13-cv-01920-KJM-KJN Document 60-3 Filed 01/02/15 Page 2 of 6
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3. I am a resident ofthe town ofJamul in San Diego County. I live on Honey Springs Road
west of Jamul near State Route 94, and my office is located in downtown Jamul on State
Route 94. I travel past the proposedcasino site a minimum of twice a day.
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4. On April 10,2013, the Bureau of Indian Affairs andNational Indian GamingCommission
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filed a"Notice ofIntent to Prepare a Supplemental Environmental Impact Statement for
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the Approvalofa Gaming Management Contract" forthe Jamul Indian Village/Penn-
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National Gaming Casino Project in San Diego County, California in the Federal Register.
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(78 Federal Register 21398-21399; copy attached to thisdeclaration asAttachment 1.)
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5. Although the SEIS Notice provided that there would not beapublic scoping meeting, it
allowed for "written comments onthescope and implementation" of the casino project by
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May 10,2013. The deadline was later extended to June 30,2013 and JAC submitted
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timely comments on the proposed Jamul Indian Village/Penn National Gaming casino
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project (A copy ofJAC's comment letter is attached to this declaration as Attachment 2.)
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Neither the BIA nor the NIGC has responded to JAC's letter inan SEIS or otherwise.
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6. The SEIS Notice specifically provided and promised that the SEIS would update
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environmental baseline and mitigation ofthe 2003 EIS and that it will include an analysis
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of"land resources, water resources, air quality, biological resources, cultural and
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paleontological resources, socio-economics transportation, land use, agriculture, public
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services, noise, hazardous materials, and visual resources." The promised SEIS has not
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been finalized or circulated for public comment
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7. NEPA requires and provides that the public shall have an opportunity (at least 45 days) to
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review and comment on an EIS before the Jamul Casino isconstructed. JAC and the
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public will be irreparably damaged and deprived ofmeaningful input ifthe Jamul Casino
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isconstructed before the SEIS is circulated for comment and finalized.
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ER0155
(jjase 2:13-cv-01920-KJM-KJN Document 60-3 Filed 01/02/15 Page 3 of 6
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8. AsSecretary ofJAC, Ihave access to, and knowledge of, its current financial situation.
JAC has avery small operating budget and would be unable to post anything other than a
nominal bond ($100-$1000) to secure injunctive relief. On behalfofJAC, Irequest that
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any bond requirement be waived; JAC respectfully submits that itshould not be required
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to post even a nominal a bondto protect its right to comment on the SEIS as allowed and
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protected by NEPA.
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9. I declare under the penalty of perjury that the forgoing is true and correct
This declaration was executed on December -3/. 2014, in Jamul, California.
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??1jLsuc-*-*~s
MARCIA SPURGEON
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DECLARATION OF MARCIA SPURGEON IN SUPPORT OFMOTION FOR A WRITOF
MANDATE ANDFOR A PRELIMINARY INJUNCTION (Case No.2:13-cv-01920 K JMKJN)
ER0156
Case2:13-cv-01920-KJM-KJN Document 60-3 Filed 01/02/15 Page 4 of 6
DECLARATION OF MARCIA SPURGEON
ATTACHMENT 1
ER0157
«=~g^Case 2:13-cv-01920-KJM-KJN Document 60-3 Filed 01/02/15 Page 5of 6
21398
Federal Register/Vol. 78, No. 69/Wednesday, April 10, 2013/Notices
ferprelalion. We intend lo reviewand
upUaie the CCP at least every 15 years
m accordance with tho Administration
Act.\
OurUlrafi CCP and EA wore available
implementation. The FONSI documei
our decision and is basedon the
information and analysis contained/n
the EA.
fora 4&day public review and comment Under the selected alternative/he
penod, febich we announced via several Servicewill expand both natui
methodsAincluding press releases,
updates loVonstiluenls,and a Federal
resource management and visitor
and therefore does not require^
environmental impact sla)
Paul B. McKim,.
Acting ttegtonalJjR&tQT, Pacific Souttnntst
Region.
IPR Db^mT3h)0338 Piled 4-e-i>«^5om|
I COOE
services opportunities on the/Refuge.
Register noW (77 FR 28895, Mav 16,
Additional biological activities would
2012). The Dfaft CCP/EA identified and include baseline surveys onnative flora
DEPARTMENT OF THE INTERIOR
managing the Refuge for the next 15
management program l/include avion
National Indian Gaming Commission
along the marsh-upland ecotone to
benefit tidal marsh species as wellas for
thewustern snowy/plover and California
least tern. Other babitat management
Notice of Intent to Prepare a
Supplemental Environmental Impact
evaluated threo alternatives for
years.
\
Under Alternative A (no action
alternative), the current management
Â10,3?!' including Habitat management,
wildlife management wildlife-oriented
recreation opportunities, and
environmental education, would be
continued. Current stafftag and funding
would remain tho same. Existing
restoration and management plans (e.g.,
Bair Island Restoration and\Management
Plan andSouth BaySalt Pond
Restoration Project) would coiatinuo to
beimplemented. Wc would alio
actively work with partners anaVvilling
sellers to acquire the remaining 1\nds
within the approved acquisition
boundary.
Alternative B (preferred alternative^
includes those actions in Alternative
In addition, we would moderately
expand biological, habitat management}
visitor service, and environmental
education activities. Refuge staffwou
expand thevolunteer program to recruit
and fauna, as well as are/ised predator
predators. Habitat would be improved
activities would/nclude development of
a comprehensive weed management
purposes^ mosquito management plan
that the National Indian Gaming
Commission (NIGC)as lead agency, in
coordination with local mosquito
cooperation with the Jamul Indian
abatement districts lo manage thothreat Village (Tribe), intends to gather
information necessary to prepare a
of nWsquito-borno disease on the
Refrigtt. The mosquito management plan supplemental environmental impact
wuiild be developed in accordance with statement (SEIS) for the proposed
Gaming Management Contract between
~ irvice policies.
the Tribo and San Diego Gaming
Visitor services will be expanded
Ventures, LLC (SDGV). The Gaming
considerably through interpretation and Management Contract, if approved,
environmentaleducationopportunities. would allow SDGV to manage the
A wildlife photography permitsystem
approved 203.000 square fool tribal
would b/implemented loimprove
ould be implemented lo expand
Jditional wildlife photography
opportunities. Dog walkingwould be
learning opportunities loexisting
volunteers. Additional staffand Binding limited primarilylo upland trails in
ordeklo ftirthor protect tidal marsh
would be needed to implemcnt/fiis
/
Under Alternative C. in addition to
tasks included in Alternot ivsfA and B.
we would increase the frequency or
baseline monitoring, investigate
arcasAA new LEED-certificd visitor
center Kumplex would be constructed
and additional interpretation activities
would bc\provided. The environmental
salt marsh harvest moiufu and the
plant species, and encourage additional
research lo bonofit llatud specie*.
Additional staff aoo funding would be
needed loimplement this alternative.
upon the meaning of an "approved
acquisitionAioundary" and the scope of
ourautho/ty within theapproved
boundar/ appliaibilily of stale health
and saMy codes in relation lo mosquito
management on the Refuge, and
wildlife-public use conflicts. Wu
incorporated communis we received
into the CCP when appropriate, and wo
raspondod to the communis in nn
appendix to theCCP. In the FONSl, we
selected Alternative B for
2703.
The Bureau of Indian Affairs (BIA),
Pacific Region, Division of
Environmental, Cultural Resources
Management &Safety will serve as
environmental staff lo the NIGC in the
preparation of the SEIS. As such, the
through a LEED-certificd remodel of the
BIA is the contact for furthor
information, in lieu of the NIGC.
This notice olso announces that no
Environmental Education Center,
Spanish translation or materials and
public scoping meeting will be held for
curriculum, antrndtllng programs at
the SEIS.
different sites. Th\ volunteer program
would beexpanded through improving
and implementation ofthis proposal
We received eighteen letters on the
training forvolunteers and developing
Draft CCP and ISA during the review and permanent stewardship projects.
comment period. Comments focused
gaming facility to be located on the
Tribe's Reservation, which qualifies as
"Indian Lands" pursuant lo 25 U.S.C.
education program would be updated
reinlroduclion of listed species(e.g., the and expanded inseveral ways, such as
California clapper rail/survey for listed
AGENCY: National Indian Gaming
Commission, Interior.
plan, addressing climate change impacts ACTION: Notice.
on Refuge resources, and efforts lo
acquire additional lands to meetRefuge summary: This notice advises the public
new volunteers and provide additional
alternative.
Statement for the Approval of a
Gaming Management Contract
dates: Written comments on the scope
must arriveby May 10,2013. No public
scoping meetingwill be held for the
proposal given the long history of tho
Tho selected alternative best meets
the Refuges' purposes, vision, and goals; project and the extensivepublicinput
contributes to the RefugoXSystem
mission: addresses the significant issues
received to-date.
wilh principles orsound fislKand
wildlife management. Based uu the
associated environmental assessment,
John Rydzik. Chier. Division or
this alternative is not expected U» result
in tiigniHcnnl unvironmonlol impacts
Way. Sacramento. CA 95825: Facsimile
(916) 978-6055: Email
john.rydzik®bia.i>ov.
ADDRESSES: You may mail, email, hand
and relevant mandates: undys consistent carry or fax writtencommentslo: Mr.
Environmental. Cultural Resources
Management iSofely, Bureau of Indian
Affairs. Pacific Region. 2800 Cottage
ER0158
Federal Register^, n m.
' u»day, April 10, 20,3/ê
21390
John Rydztk (916) 978-0051.
SUPPLEMENTARY INFORMATION: The Tribe
•J requesting N1GC oppiwu| of a
receipt andconsideration of all
comments on the Draft EIS. the notice
Please note that comments will only bo"
received in writing by email, facsimile
oriirailability oflh<> Final EIS was
or regular mail. Pursuantto 40 CFR
Gt^Mumnsnl Contracl between 64622) °" N°VC,,,bor 14' 20°3 168 FR 1502.9. no public scoping meeting will
behold for this SEIS.
ofa2S3
oSSdiDGV°r ,he ma««8«ment Between late 2003 and early 2006, the ^Public
Avariability ofComments: *""
.u°i^?° 8<*uaro fo°l gaming facility
Tnbe revised their project toeliminate
SJMribe^
Res«™*n.San
which
is y ino ree-to-lrust component andto
located
in unincorporated
Diego
reconfigure all uses onto the existing
County approximately 1-mile south of Reservation except for an access road,
heunincorporated community of
whichis designed to travel throueh
lamu. Pursuant to the Indian Cuming ndjncenl
iribaTlv owned taidSXttta.
Regulatory Act. signed into law on
Comments, including names and
addresses ofrespondents, will be
available for public review attheBIA.
Pacific Region address shown in the
AaDRES?es5ec,io,n ^his notice, during
«jcReservation
with"a eRouteW * T"tZ'
?g2? °X,MplTk*"?****
^Monda*lhrou**
The
project
modifications,wore
Bof™
evaluated by the Tribe in aTribal
deluding your address, phone number.
October 17,1988, the Tribe may enter
into aCammg Management Contract for
the operation and mamigomcnl ofa
Environmental Impact Statement/Report SE-ft^r" °*er pereonaI
December 2006). AddlUolSJSSSff %Z£^JnST*fcZ
fa y°Ur .
ofthe NIGC. The purpose ofthe
the project resulted in the release ofa
°m-m°n> you shou,d be aware Aal
Proposed Action isto help provide for Pi3.? Tîoa, Environmental Evaluation yourentirecomment—including your
uie economic development of the /omul
personal identifying information—may
be made publicly available at any time.
(Tribal EE) in March 2012 and aFinal
Reservation.
Tribal EE in January 2013. Between
The enterprise to be managed
mc tides agaming facilitv. a multi-level
parking structure, surface parking lot,
release ofthe Draft and Final Tribal EE.
While you can ask us in yourcomment
period and held a public meeting to
information from public review, we
All written and oral comments provided
do so.
towithhold your personal identifying
theTnbe provided n public comment
nre-fighling facilities, wastewater
treatment plant/disposal facilities, water
delivery system, and improved on-sile
traffic circulation. The main use within
accept comments on the Draft Tribal EE. cannot guarantee that we will be able to
by lite public during thecomment
period were responded toand
incorporated into the Final Tribal EE
The Final Tribal EE was certified as
the gaming facility isthe gaming noor.
which would contain slot machines,
adequate and complete by the Tribe in
table games, and poker entertainment.
Thetotal estimated gaming floor area for January 2013. Now that the Tribe has
the gaming facility is 70,000 square feel. completed the final versionof the
proposed gaming facility, iheyare
Theexterior of thecomplex would
requesting NTGC approval ofaGaming
include downcast lighting consistent
Management Contract between the Tribe
with San Diego County codes and
ordinances to maintain consistency with
the surrounding area.
end SDGV.
Thegaming facility has always been
designed to be located on the
The environmental effects ofagaming Reservation;
however, otherusessuch
facility on theTribe's Reservation has
been extensively studiedandevaluated
since 2000 when theTribe originally
approached the BIAand NICC with feeto-trust and Gaming Management
Contract requests. Serving asthelead
agency for theseinitial requests, the BIA
originally developed and published an
environmental assessment (EA) on
February 1.2001. The NICC served asa
Cooperating Agency for this early
request. The Final EA was completed
and published in November 2001.
Following a decision by the BIA and
NIGC that the mitigation measures in
the EAwere loo provisional, the BIA
and NIGC developed an environmental
as the wastewater treatment/disposal
facilities, fire-fighting facilities, and
Authority: This notice is published in
ocnontonuowith 25 U.S.C. 27U, section
1501.7 of the Council on Environmental
Quality Regulations (40 CFR parts 1500
through 150S). and the Department of the
Intorior regulations (43 CFR part 46).
implementing the prucctdura] requirements of
NEPA, asamended (42 U.S.C. 4321 otseq.J.
Dated: April 4.2013.
Dawn Houla,
ChiefofStaff.
|FKDue. 2013-08207Ftlcirl 4-0-13:8:45 am)
BiLLOtO COOS 756S-01-P
structured parking weredesigned to be National Park Service
located on udjacent land north of the
Reservation. The reconfiguration of uses [NPS-WASO-NAGPRA-1246S;
to place all features on the Reservation, PCUOORP14.R5CCOO-PPWOCRADjy6j
togullior with the passage nf time since
the Final EISwas circulated, has
resulted in the need for the NIGC to
develop and issue an SEIS to address
Notice oNnventory Completion: Center
for Archaeological Research at the
University 6/Texas at Sar/Antonio. TX
these changes. No other alternativeswill agency: National Park Service, Interior.
bo addressed in the SEIS
rttZtoteaddled
in theSEIs"! ACT10W; N""ce>
/ include updating tho environmental
I SUMMARY: TIic CeNaterfbr Archaeological
baseline and irapacl/miligation analysis! Research at the Um/irsity ofTexas at
ofthe 2003 Final EIS as it relates to the San Antonio has c/hipleted an
new design alternative. Areas to be
impact statement (EIS) for the proposed analyzed include land resources, water
fee-lo-trusl and Management
Contract
-w-.
—
( resources, air quality, biological
requests. The notice or intent for the EIS resources, cultural and paleoiilological
wast published in the Federal Register
resources, socioeconomics,
inventory of human remains, in
consultation w\m theluppropriate
Indian tribe, a/d has doWmined that
there is a cultural affiliation between the
human rcnyiins and a present-day
on April 2.2002 67 FR 15583). The
transportation, land use. agriculture.
Indian tribe. Representativesof any
was published inthe Federal Register
materials anil visual resources.
culturally affiliated with the Human
notice ofavailability for the Draft EIS
public services, noise, hazardous
onJanuary 17. 2003 (68 FR 2538). After *— Directions for Submitting Public
release ofthe Draft EIS. a public meeting Conwutnls: Plcose include your name,
was held on February 6. 2003 at the El
Cajon CommunityCenterto lake
comments from The public. Following
return address, and (he cuplion "SEIS
Janml Gaming Project" on the first page
of anywritten commonls yousubmit.
Indian tome that believes itself to be
remitii6 maycoiilucl the CunteXjbr
Archaeological Research at the
Universityof Texas nl Son Anton)
Repatriation of the human remainsxo
ho Indian tribe staled below may
ER0159
Case 2:13-cv-01920-KJM-KJN Document 60-4 Filed 01/02/15 Page 1of 23
DECIARATI0N0FWIARCIASPUR6E0N
ATTACHMENT 2
ER0160
Jamulians Against the Casino | P.O. Box 1317 | Jamul | CA | 91935
June 30,2013
Tracie Stevens, Chairwoman
Amy Dutschke,Regional Director
Bureau ofIndian Affairs
1441 L Street NW, Suite 9100
Washington, DC 20005
Pacific Regional Office
2800 Cottage Way
Sacramento Regional Office
801 I Street, Suite 489
JohnRydzik
Chief, Division of Environmental, Cultural
Resources Management & Safety
Bureau of Indian Affairs,Pacific Region
2800 Cottage Way
Re:
"SEIS Jamul Gaming Project" and Notice ofIntent to Prepare aSupplemental
Environmental Impact Statement (SEIS) for the Approval ofaGaming
Management Contract between Jamul Indian Village ("JIV") and San Diego
Gaming Ventures LLC
Dear Mss. Stevens, Dutschke and Mr. Rydzik:
This comment letter is submitted onbehalfof Jamulians Against theCasino ("JAC") in
response to theNotice of Intent to Prepare a Supplemental Environmental Impact Statement
(SEIS) for the Approval ofa Gaming Management Contract between Jamul Indian Village and
San Diego Gaming Ventures LLC, first published on April 10,2013,78 Fed. Reg.21398-99,
Doc. 2013-08267. Comments on the Noticearenow due by July 8,2013. JAC is a non-profit
organization of citizens living in and around Jamul, California, dedicated to preservingthe
small-town, rural lifestyle of its community.
JAC respectfully submits thatthe request for approval of the proposed Gaming
ManagementContract between JIV and San Diego GamingVentures LLC ("SDGV") be denied
because San Diego County tax assessor's Parcel, APN 597-080-04 ("the Parcel"), upon which
the Management Contract proposes to manage gambling, does not qualify as "Indian Lands"
under 25 U.S.C. §2703, for the following reasons:
(1) The holding of the United States Supreme Court in Carcieri v. Salazar ( "CarcierT*)
(2009) 555 U.S. 379, prevents the Parcel, fromqualifyingas "Indian Lands" under 25 U.S.C.
2703;
(2) The Indian Reorganization Act of 1934("IRA"), 25 US.C. §§465 and 479, only
permitsland to be taken into trust for Indian tribes thatwere recognizedunder Federal
jurisdiction as ofJune 1934, when the IRA was enacted, and the JIV was not recognizedunder
Federal jurisdiction in June 1934;
ER0161
June 30,2013
Page 2
(3) The Parcel was not taken into trust for the JTV and was never transferred to the
beneficial interest of the JTV, and therefore does not qualify for gaming under 25 U.S.C. 2703,
because theJTV hasnever lawfully exercised governmental power overtheParcel;
(4) Subsequentacquisitionof the Parcelfor the JIV will violate the 10th Amendment to
the United States Constitution,becauseCalifornia has not consentedto cede exclusive
jurisdictionover the Parcel to the United States;
(5) Serious environmental issues regarding theManagement Contract at thislocation
have not been adequately addressed; and
(6)TheNotice fails to clearly describe the Parcel upon which theManagement Contract
proposes to manage gambling.
ANALYSIS
The Jamul Indian Village was not recognized under Federal jurisdiction in June of 1934
The JTV was not a "recognized Indian tribe now under federal jurisdiction," 25
U.S.C. 479, on June 18,1934, when the IRA was enacted. Indeed, the then Director of the Office
ofTribal Government Services, CarolA. Bacon, statedon July 1,1993: "that prior to 1980,the
Jamul Indian Village was not a federally recognized tribal entity." Exhibit I, at 2.
"The term "tribe" as used in FederalIndianaffairsgenerallyrefers to a community of
peoplewho have continued as a bodypolitic without interruption since time immemorial and
retainpowersofinherentsovereignty. When sucha tribeis organized pursuantto the Indian
ReorganizationAct (IRA), its governing authority is derivedfrom acknowledgmentof the fact
that as a single identifiable group, it has historically governed itself." Exhibit I, at 1. As a
generalmatter, to obtain federal recognition, a tribemustdemonstrate that its "membership
consists of individuals who descend from a historical Indian tribe or from historical Indian tribes
which combined andfunctioned as a single autonomous political entity." 25 C.F.R. §83.7(3)
(2008).
However, the JIV was never a body politic that continued without interruption
since time immemorial, never hadpowers of inherent sovereignty, and was not a single
identifiable group that historically governed itselforfunctioned asa single autonomous political
entity. TheBureau of Indian Affairs ("BIA") Director of the Office of Tribal Government
Services further stated on July 1,1993:
During the 1970's representation of the Village explored with the Bureau of
Indian Affairs means whereby it could obtain Federal recognition and were
variously advised the only avenues open to them were to seek a legislative
solution, go through the Federal acknowledgment process, orthe more limiting
ER0162
Case 2:13-cv-01920-KJM-KJN Document 60-4 Filed 01/02/15 Page 4 of23
June 30,2013
Page 3
action ofrecognition bythe Secretary as ahalf-blood organization. Itwas pointed
out thatacknowledgment of existence asanIndian tribe andof existence as a
half-blood community are two different things. In order for the Secretary to
acknowledge the Jamul community as a tribe under 25 CFR Part 83, previously
25 CFR 54, itwould have tosubmit adetailed petition and undergo a lengthy
process ofconsideration. Several years would have been required to complete
this. If the community was not determined to exist as a tribe afterthis
consideration, it would still have the option toorganize asahalf-blood
community under theIRA. Representatives of theVillage opted to seek
recognition asa half-blood Indian community [and notatribe] even though they
wereaware ofthe limitations that result from organizing asa half-blood Indian
community. Exhibit I, at 2.
The Supreme Court holds in Carcieri v. Salazar (2009) 555 U.S. 379,385, "federal
recognition is needed before anIndian tribe mayseek 'the protection, services, and benefits of
the Federal government."' The DirectorofTribal Government Services further stated:
Consequently, on November 7,1975, theCommissioner ofIndian Affairs, in
response to the [Sacramento] Area Director'sassertion that 20 of the 23 Indians
who reside in the Jamul community possess one-halformoredegree of Indian
blood,notified the Area Director that pursuant to Section 19of the Indian
Reorganization Act (IRA) ofJune 18,1934 (25 U.S.C. §479), certainbenefits of
that Act are available to persons ofone-halfor more Indian blood even though
they lack membership in a federally recognized tribe. The Commissioner
found that while those individuals at Jamul of one-half degree or more Indian
blood do not now constitute a federally recognized entity and do not possess a
landbase, they are entitled to services provided by the Bueau to individual
Indians pursuant to Section 19 of the IRA. The commissioner further held that
should these Jamul half-bloods secure in trust status, the tract ofland on which
they reside they would be eligible to organize as a community ofadult Indians of
one-half degree or more Indian blood under Section 16 of the IRA. Exhibit I, at 2.
On July 12,1979, the Commissioner of Indian Affairs in response to an inquiry
advised the Sacramento Area Director [of the BIA] that: 'To be created as a
communityof persons ofone-halfdegree ormoreIndian blood, the Jamul Indians
must first organize under the Indian Reorganization Act. We understand thatthe
community is currently workingon a proposed organizational document When
this proposal has been adopted by the communityin an electioncalled by the
Secretary, andhasbeenapproved by the Secretary, the Jamul Inidans will be able
to receive services as [such] a community. Exhibit I, at 3.
ER0163
June 30,2013
Page 4
An Unorganized Group of Individual Indians Acquires "the ParceP
The Director ofTribal Government Services further stated on July 1,1993: "The
Jamul Indians lived on one acre ofprivate land and on land deeded to the Diocese ofSan Diego
as an Indian cemetery." Exhibit I, at 3. These Native American families and their lineal
descendants have inhumed, interred, deposited, dispersed and placed hundreds oftheir deceased
family members' human remains, and items associated with their human remains, including, but
not limited to grave goods, cultural items, associated funerary objects, sacred objects, and
objects ofcultural patrimony, as defined in Cal. Pub. Res. Code 5097.9-5097.99, below, on, and
above, three parcels of land, originally known as parcels 597-080-01 and 597-080-02, and now
knownas parcels 597-080-04,597-080-05, and 597-080-06.
These Native American families and their lineal descendants have occupied and
possessed that cemetery and the property contiguous tothat Indian graveyard inJamul,
California, which private property was owned atvarious times by Mexican Governor and Don,
Pio Pico, U.S. General Henry S. Burton and his widow Maria Amparo Ruizde Burton, John D.
Spreckel's Coronado Beach Company, and later by the Lawrence and Donald Daley families,
andthe Catholic Diocese, as reflected in Exhibits A, B, C, D andF hereto.1
On September 26,1912, J.D. Spreckel's Coronado Beach Company deeded 2.21 acres of
land, later surveyed to include 2.34acres ofland, in Jamul, California, to the RomanCatholic
Bishop of Monterey and Los Angeles, a corporate in sole ofthe State ofCalifornia, "to be used
for thepurposes ofanIndian graveyard and approach thereto," "to haveandto holdtheabove
granted anddescribed premises untothe said Grantee, his successors and assignsforever forthe
purpose above specified," as set forth in Exhibits A andB hereto, and now known as parcels
597-080-05 and 597-080-06. In 1912, Father LaPointe and the Roman Catholic church erected a
chapel at the cemetery, and since 1956 the diocese of St Pius Xavier has maintained the chapel,
on the parcels now known as 597-080-05 and 597-080-06, for the purposeof ministering at the
Indian cemetery.
On December 12,1978, Lawrence and Donald Daley,recorded the grantdeed for
4.66 acres of land, known then as parcel 597-080-01, now known as Parcel 597-080-04 (the
Parcel), to "the United States of America in trust for such Jamul Indians of one-half degree
or more Indian blood as the Secretary of the Interior may designate," as set forth in Exhibit
D. This land was conveyed to the United States in trust for the explicit benefit of those half-
bloodJamul Indians thenoccupying the property.
1See also, United States v. Pio Pico (1870) 27 F.Cas. 537; Estate ofBurton (1883) 63
Cal. 36; G.W.B.McDonald, Administrator v. Burton (1886) 68 Cal. 445; Henry H. Burton v.
Maria A. Burton (1889) 79Cal. 490; In re Burton's Estate (1892) 93 Cal. 459; and McDonald v.
McCoy (1898) 121 Cal. 55.
ER0164
June 30,2013
Page 5
The Director ofTribal Government Services further stated: "On June 28,1979,
the United States acquired from Bertha A.and Maria A. Daley aportion of the land known as
'Rancho Jamul' which ittook 'in trust for such Jamul Indians ofone-halfdegree or more Indian
blood as the Secretary ofthe Interior may designate.' ...The United States accepted these
conveyances of land in accordance with the authority contained in Sections 5 and 19 of the
Indian Reorganization Act of 1934." Exhibit I,at3.
Section 5of the Indian Reorganization Act of 1934,25 U.S.C. §465, permits
the federal government to take land into trust for "Indians." Section 19ofIRA in turn defines
"Indians" toinclude: (1) "any recognized Indian tribe now under Federal jurisdiction," and
(2) "all other persons ofone-halformore Indian blood." 25 U.S.C. §479 (emphasis added).
The text ofSection 19has not changed since its enactment in 1934.
Congress specifically enacted the IRA, 25 U.S.C. 465, to ensure that land acquired
in trust for individual Indians would not be alienated byanyone without the government's
express approval. In fact, the IRA continues to specifically provide for the acquisition of land by
the United States for the benefit of individual Indians "through purchase, relinquishment, gift,
exchange, orassignment..for the purpose of providing land for Indians." 25U.S.C. 465, as
acknowledged by the Supreme Court inCarcieri at399, J. Breyer, concurring.
Title to any lands or rights acquired pursuant to sections 461,462,463,464,465,
466 to 470,471 to 473,474,475,476 to 478, and479 ofthis title shall be taken in
the name of the United States in trust for the Indian tribe or individual Indian
for which the land is acquired, and such lands orrights shall be exemptfrom
State andlocal taxation. 25 U.S.C. 465. (emphasis added).
The 1934HouseReporton the IRA clearly evidences a policy thatincludes
acquiring landin trust for individual Indians, and notjust for "recognized Indian tribesnow
underFederal jurisdiction," at the time of the enactment of the IRA: "Section 5 [25 U.S.C. 465]
authorizes the Secretary ofthe Interior to purchase or otherwiseacquireland for landless
Indians."H.R. Rep. No. 1804,73d Cong., 2d Sess. 6-7 (1934).
Furthermore, the federal government has no authority to take land into trust for a tribe
that was not recognized under Federal jurisdiction in June of 1934, and can therefore only have
taken the land into trust for individual Indians, as the United States Supreme Court holds in
Carcieri v. Salazar (2009) 555 U.S. 379,382-3, the IRA, 25 U.S.C. 479:
" ...limits the Secretary's authority to taking land into trust for the purpose of
providing land to members ofa tribethatwas under federal jurisdiction when the
IRA was enacted in June 1934. Because the record in this case establishes that the
[] Tribe was not under federal jurisdiction when the IRA was enacted, the
Secretary does not have theauthority to take theparcel at issue into trust" See
also, United States v. John, AZ1 U.S. 634,650 (1978).
ER0165
June 30,2013
Page 6
As discussed in Carcieri, the questionis not one of the existence ofa tribe or of tribal
ancestors in 1934, but one of whether ornot a specific tribe can show evidence that it was under
federaljurisdiction in 1934, i.e., thatthe federal government recognized a government to
governmentrelationship with the tribeas ofJune 1934. (Id. at pp. 382-384,395.) The JTV has
not shown that it was under federal jurisdiction in 1934and JAC is not aware ofany basis upon
which it may make such a claim. Consequently, the Secretary was without the legal authority to
acquire this land, and did not acquire this land, in trust for the JIV.
Indeed, from various federal documents and information obtained from the BIA, it
appears that the JIV was not named among the tribes listed as receiving services from the federal
government in 1934,as shown in the Haas Reportentitled Ten Years ofTribal Government
under the IRA. In addition, the Tribe is not named in the BlA's list ofGoverning Bodies of
Indian Groups Under Federal Supervision in 1965. Further, Senate Report No. 1874, dated July
1958, notes mat the Tribe had never received any social services from the BIA due to the status
of its members as Indians. As Justice Breyer acknowledges in Carcieri, at 398, the JIV is not
among the list of 258 tribescompiled by the DOI following enactmentofthe ERA, citing the
amicus Brief for Law Professors Specializing in Federal Indian Law, at App. 2, No. 12,2008
WL 3991411, which further demonstratesthat the JIV was not "recognized under Federal
jurisdiction," until it adopted an IRA constitution on July7,1981, which recognition was then
published in the Federal Register on November 24,1982. Thus, the available evidence indicates
that the Tribe was not a political entity under federal jurisdiction in 1934.
Since there was no tribe in Jamul under federal jurisdiction, when the IRA was
enacted in June 1934, the federal government wasonly authorized to take landinto trust for
individual Indians under the IRA. Therefore, these Jamul Indians ofone-half degree or more
Indian blood secured in truststatus, the tract of land on whichthey resided, becameeligible to
organize, and were subsequently organized, as acommunity ofadult Indians ofone-halfdegree
or more Indian blood under Section 16 of the IRA.
The Director ofTribal Government Services has further stated on July 1,1993:
"The Constitution ofthe Jamul Indian Village wasapproved by the DeputyAssistantSecretary-
Indian Affairs onJuly 7,1981. In approving the IRA Constitution, theVillage was authorized to
exercise thoseself-goveming powers that have been delegated by Congress or thatthe Secretary
permits it toexercise. A number of 'tribes' have been created, from communities of adult
Indians, orexpressly authorized byCongress under provisions ofthe IRA and other Federal
statutes. For example, some IRA entities availed themselves ofthe opportunity to adopt an IRA
constitution andare considered to be IRA 'tribes.' However, they are composed of remnants of
tribes who were gathered onto trust land. Those persons had no historical existence as selfgoverning units. They now possess only those powers set forth intheir IRAconstitution. They
arenot an inherent sovereign. Rather, that entity isacreated tribe exercising delegated powers
ofself-government Such isthe case with Jamul Indian Village." Exhibit I, at3.
ER0166
June 30,2013
Page 7
Subsequently, on or about, November 24, 1982, an acting deputy assistant secretary of
the Bureau of Indian Affairs inthe executive branch ofthe government, published the first
federal recognition of the Jamul Indian Village ("JIV"), as an Indian tribe, inthe Federal
Register. 47Fed. Reg. 53130,53132 (Nov. 24,1982). TTie Supreme Court holds that such
publication inthe Federal Register provides the evidence ofwhen atribe isrecognized under
Federal jurisdiction. Carcieri, at 395. Moreover, the Supreme Court also holds that "Congress
did not intend to delegate interpretive authority to the Department [ofInterior, as to when atribe
was recognized under Federal jurisdiction]." Carcieri at 397, J. Breyer, concurring.
Congress, as the legislative branch ofthe United States, has yet to recognize, and has
never lawfully exercised, federal jurisdiction over the JTV. Most significantly, because the JTV
had never previously existed, and was not under federal jurisdiction inJune of 1934, the JIV
never acquired, nor has been transferred, nor has ever lawfully exercised, governmental power
over parcel 597-080-04. The Supreme Court "has long made clear that Congress-and therefore
the Secretary-lacks constitutional authority to 'bring acommunity or body of people within
[federal jurisdiction] by arbitrarily calling them an Indian tribe."' Carcieri, at412, J. Stevens,
dissenting, and citing United States v. Sandoval 231 U.S. 28,46 (1913).
Instead, the then Secretary of the Interior through his/her subordinates designated
the individual Native American families then possessing and residing on parcel 597-080-04, as
thebeneficial owners ofthe parcel, consistent with the federal regulations for unorganized
groups of individual Indians, by locating said individual Indians onthe parcel, providing for
their needs, acquiescing in their continued presence on,and useof, the parcel for more than28
years, in building houses for them on theparcel, in providing themwith services usually
accorded to Indians livingon such property, allowing themto inhume, inter, deposit, disperse
and placethe human remains and funerary objects oftheirdead, below, on, and above the
property, and further providing strong and uncontroverted evidence oftheirdesignation as the
beneficialowners of the parcel 597-080-04, as amatterof law, within the meaning ofthe grant
deed, andas recognized by Carcieri v. Salazar (2009) 555U.S. 379,382-83,388-90,394-95,
398-99, Coast Indian Community v. U.S. ("Coast") (Fed. CI. 1977)550 F.2d639, United States
v. AssiniboineTribe ("Assiniboine") (Fed. CI. 1970) 428 F.2d 1324,1329-30, and 1 Opinionsof
the Solicitor ofthe Department ofInterior Relatingto Indian Affairs 1917-1974 ("Opinions of
the Solicitor*1) at 668,724,747, and 1479, (1979) attached heretoas Exhibit H, and relied upon
by Justices Breyer and Stevens in Carcieri at 399 and 407.
Thus, theseJamul Indians ofone-half degree or more Indian bloodwere designated the
beneficialowners of parcel 597-080-04, andbecause they could not lawfully transferthat
beneficial interest and trust status to a tribe that was not under federaljurisdiction in June of
1934,the JIV has never lawfully exercised governmental powerover parcel 597-080-04, which
thereby precludes the parcel from qualifying for gambling under the Indian Gaming Regulatory
Act ("IGRA"), since it is not "Indian lands," "over which an Indian tribe exercises governmental
power." 25 U.S.C. 2703(4)(B).
ER0167
June 30,2013
Page 8
The Individual Indians Never Transferred the Property to the JIV
andtheJIV Never Exercised Governmental Power over the Property
These Jamul Indians ofone-halfdegree or more Indian blood have never attempted to
transfer, norlawfully transferred, their individual beneficial interest in theParcel to thetribe
after it was created in 1981 and finally recognized in 1982.
Thehistory of the acquisition and designation of these Jamul Indians ofone-half
degree ormore Indian blood as the beneficial owners of the Parcel, follows the custom and
practice ofsimilar BIA acquisitions and designations ofother IRA tribes, that were subsequentiy
recognized after June of 1934. Similar forms ofthe Jamul grant deed have long been accepted
by the BIA and similar designations ofindividual Indians' beneficial ownership have long been
made bythe BIA, and enforced bythe courts. See, Coast, 550 F.2d 639,651, n32; State Tax
Comm., 535 F.2d 300,304; Assiniboine Tribe 428 F.2d 1324,1329; and 1Dept of Interior,
Opinions ofthe Solicitor Relating to Indian Affairs, 1917-1974 ("Opinions ofthe Solicitor") at
668,724,747, and 1479, involving for e.g., the Mississippi Choctaws, the St. Croix Chippewas,
the Nahma and Beaver Indians, and the Nooksack Indians, attached as Exhibit Hhereto, and
acknowledged by Justices Breyerand Stevensin Carcieri at 399 and407.
The Federal government's ownHandbook ofFederal Indian Law,2 authorized and
funded by Congress in theIndian CivU Rights Act of 1968,25 U.S.C. 1341(a)(2), provides that
"...[A] number ofstatutes have allowed individual Indians to obtain trust orrestricted parcels out
of die public domain and notwithin any reservation.... The government has at times—purchased
trust lands for individuals. Fn. 118. Since 1934 this has been done pursuant to provisions ofthe
Indian Reorganization Act. 25U.S.C. 465." Id., (DOI1982) Ch. l,Sec.D3c,p.40-41,and(DOI
2005) §3.04 (nl 14)Footnote 443,citing CityofTacoma v. Andrus, 457 F. Supp. 342 (D.D.C.
1978), and Chase v. McMasters ("Chase") 573 F.2d 1011,1016 (8th Cir. 1978), cert, denied,439
U.S. 965 (1978).
In Chase the courtenforced an individual Indian's beneficial ownership of trust
landacquired for herbenefit underthe IRA, stating: "The Secretary may purchase land foran
individual Indian and hold title to it in trust for him...Section 465 lists gifts amongthe meansby
which the Secretary may acquire land,and it was amended to authorize acquisition of land in
trust for individual Indians... See 78 Cong. Rcc. 11126 (1934)... The land acquired may be
located... without a reservation."Chase, at 1016. "The Act not only authorized the Secretary to
acquire land for Indians, 25 U.S.C. 465, but continued the truststatus ofrestricted lands
indefinitely, 25 U.S.C. 462..." Chase, at 1016.
2Congress directed the Secretary of Interior to revise andrepublish Cohen's Handbook of
Federal Indian Lawin the Indian Civil Rights Act of 1968.25U.S.C. 1341(a)(2). Hence, the
United States is boundby its admissions with regard to the lands held in trust for individual
Indians.
ER0168
June 30,2013
Page 9
Parcel 597-080-04, therefore was notacquired for a tribe, norcould it havebeen
acquired fora tribethatdid not thenexist; instead, it was takenin trust for the individual Native
American families then possessing and residing on the parcel, pursuant to 25 U.S.C. 465, as held
inCarcieri and inChase, Coast, Assiniboine Tribe, and Opinions ofthe Solicitor, supra.
Therefore, when the IRA tribe, known as Jamul Indian Village, was created, under the
terms of theIRA, it was alandless governmental entity. To date, nobranch oftheUnited States
government has set aside or created an Indian reservation for the Jamul Indian Village. The
United States Department of Interior, Bureau of Indian Affairs, August 3,2000 response to a
Freedom of Information Act(FOIA) request, confirms that the "current trust parcel was accepted
into trust in 1978 for Jamul Indians of 14 degree (4.66 acres)," and that there is"no record of the
1978 trust parcel being known asthe Jamul Village," asreflected in Exhibit E hereto.
Thisis consistent with the tribe's constitution, Article H, Territory, which
does notidentify the4.66 acres, parcel 597-080-04, as within the territory oftheJamul Indian
Village, asreflected in Exhibit G hereto. Parcel 597-080-04, was notacquired for any Indian
tribe, andhas neverbeenrecognized by anybranch ofthe federal government as beinga parcel
overwhich theentity, known as the Jamul Indian Village, exercises governmental power. Nor
hasit everbeenlawfully subject to theexercise ofanytribal governmental power.
During 1996 a faction of individuals, who were not all Jamul Indians of one-half
degree of Indian blood, claims to haveadmitted Jamul Indians, who were only one-quarter
Indian blood, asmembers of thetribe, and nowpurportedly comprise morethan a majority ofthe
membersof the tribe. Thus, the JTV is further legally precluded by the 1978grant deed from
claiming any beneficial ownershipinterestin Parcel 597-080-04, since JTV now claims to be
comprisedofa majority of members who are, admittedly, not one-half degree or more of Indian
blood.
The JIV therefore has never had jurisdiction over, nor lawfully exercised governmental
power over, parcel 597-080-04, and there has never been a transfer of the parcel to the
subsequently recognized tribe, nor has the Secretary of the Interiorever lawfully designated the
subsequently recognized tribe to be a beneficiary of the grant deed for the Parcel.
The U.S. has no evidence that the subsequently created"tribe," known as the "Jamul
Indian Village," was ever designated as the beneficiary of parcel 597-080-04, nor that a grant
deed evertransferred the parcel to thetribe. In fact, theonly evidence is thatthe Secretary ofthe
Interior designated the individual"Jamul Indians ofone-halfor more Indianblood" to be the
beneficiaries of the Parcel, by allowing them to reside upon the trust land for 28 years,just as
occurred in Coast, 550 F.2d at 651, n32; see also Ex. D.
Sincean Indian tribe'sjurisdiction derives from the will ofCongress, United
States v. Sandoval (1913) 231 U.S. 28,46, citing United States v. Holliday, 18 L.ed. 182,186;
seealso, Kansas v. Norton, 249 F.3d 1213,1229-31 (10* Cir. 2001), and Congress never granted
ER0169
June 30,2013
Page 10
the Jamul Indian Village "jurisdiction" over parcel 597-080-04 to which the U.S. holds tide, the
express beneficiaries of the deed to the United States for parcel 597-080-04 were, and still are,
the individual half-blood Jamul Indians who were allowed to reside on the property since 1978,
and not the tribal governmental entity that was subsequently recognized byan acting deputy
assistant secretary ofthe BIA in 1982. "Where no expression ofcongressional intent or purpose
exists, atribe cannot establish jurisdiction through its unilateral actions." Citizens Against
Casino Gambling in Erie Co. v. Stevens, 2013 U.S. Dist LEXIS 66900, *26-27 (W.D.N.Y.
2013) citing Oklahoma v. Hobia, 2012 U.S. Dist. LEXIS 100793 (N.D. Okla. 2012) (landless
Kialagee Tribal Town did not obtain jurisdiction over arestricted allotment owned by members
ofthe Muscogee Nation through unilateral act ofleasing the land).
Thus, the government isestopped to deny, that the "only possible" designation that exists
inthe 1978 grant deed, as a matter of law, is that parcel 597-080-04 was taken intrust for the
"individual" "Jamul Indians of one-halfdegree ormore Indian blood," as was held inCarcieri,
at382-83,388-90,394-95,398-99, Coast, 550 F.2d at651, n32, and State Tax Comm., 535 F2d.
at 304.
Coast, 550 F.2d 639, held onnearly identical facts, that the parcel inquestion, "was not
acquired for a tribe, leaving only the possibility under the [Indian Reorganization] Act that it was
purchased for individual Indians." 550 F2.d 639,651, n. 32.The Coast deed "wasconveyed to
theUnited States: ...'in Trust for suchIndians of DelNorte and Humboldt Counties, in
California, eligible to participate in the benefits of the [Indian Reorganization] Act of June 18,
1934,as shall be designated by the Secretary ofthe Interior...'" 550 F.2d 641-41. The Jamul
deed wasconveyed to theUnited States "in trust for such Jamul Indians of one-halfdegree or
more Indian blood as the Secretary of the Interior may designate." See, Ex. D. There, as here,
"the United States acquired the [land]...pursuant to... 25 U.S.C. 465, which provided that the
tide to land acquired under it 'shall be taken in the name of the United States in trust for
the...individual Indian forwhich the land is acquired...'" Coast, 651, n32.
Section 479... defined "tribe" forthe purposes of the Act as '...any Indian tribe,
organized band, pueblo, or the Indians residing on one reservation.' The Coast
Indian Community [and the Jamul Indian Village] does not come within this
definition, for it is not a tribein the anthropological sense ofthe term, nor is it
organized or a pueblo, nor were its members residing together on one reservation
before or at the time of the Rancheria acquisition. The Rancheria, then, was not
acquired fora tribe, leaving only the possibility underthe Act that it was
purchased for individual Indians. The deed and proclamation say nothing to
contradict this. Thus, the land was taken in trust for the individual Coast Indian
Community members." Coast, at 651, n32.
ER0170
June 30,2013
Page 11
The Government Failedto Follow its Own Guidelinesto Obtain a Transfer of the Parcel
from the Individual Indians to the Tribe
TheGovernment admits that it failed to follow itsown guidelines fbr recording a grant
deed to a subsequently recognized tribe, and therefore the existing grant deed for 597-080-04, as
a matter oflaw, only created a beneficialinterestin the individual Jamul Indians of one-half
degree ormore Indian blood. Opinions ofthe Solicitor at668,724,747, and 1479; Exhibit H.
There, the Solicitor ofthe Interior specifically advised the field personnel ofthe BIAthat any
transfer ofthe individual Indians' designated beneficial interest to any subsequendy recognized
tribe, must still be accomplished the old-fashioned way byrecording a grant deed.
Here, no grant deed ever transferred the individual Indians1 designated beneficial interest
in the parcel toany tribe. Following the recording of the original 1978 grant deed for parcel 597080-01, nowknown as597-080-04, there is no subsequent record of anytransfer ofthe parcel
from the United States' trust onbehalfof the individual half-blood Jamul Indians designated by
the Secretary, to any tribe, including the JTV.
The federal government cannot deny that its ownHandbook ofFederal Indian Law,
(DOI1982) Ch. 11,B3, pp.615-16, and (DOI2005) §16.03, p. 883, concedes thatall individual
designated beneficiaries are cotenants in the trust land held by theU.S.Cotenants have equal
rights to possession ofthe property, and no single cotenant has the right to excludeany other
cotenant from the property. Cal. Civil Code685-86; Zaslow v. Kroenert (1946) 29 Cal.2d 541,
548.Therefore,all ofthe individual cotenants must consentto any transfer oftheir individual
beneficiaries* designation to a subsequently recognized "tribe," before the subsequendy
recognized "tribe" may lawfullybe designated asthe beneficiary andacquire "jurisdiction" over
the parcel. Id.
Here, there is no evidence ofany such consent by the individual Indian co-tenants
to transfer their beneficial interest in the parcel, and the government never recorded a subsequent
grant deed, transferring the individual Indian beneficiaries' interest in the parcel to any
subsequently recognized tribe, including die Jamul Indian Village.
Here, it is no wonder that the "Jamul Indians of one-half degree or more Indian blood"
have never consented to transfer their individual designation as beneficial owners to any
subsequendycreated "tribe," since the Interior Board ofIndian Appeals found non-members
participating in thetribal government, perhaps from the timetheentitywas first created in 1981
andrecognized in 1982. 32IB1A 166. Where, ashere, no subsequent grant deed was recorded,
the individualbeneficialownership of the trust property cannot, as a matteroflaw, have been
transferred to any subsequendy recognized tribe.
The government'sown Handbook ofFederal Indian Lawexplainsthe significant
distinction between (I) taking land into trust for "individual" Indians, before they are allowed to
become a recognized tribe under the IRA, ashere, and (2) recognizing alandless "tribe" and
ER0171
June 30,2013
Page 12
requiring the Secretary to transfer the land intrust from the individual Indians, with their
consent, to the "tribe," after itwas recognized. Id., (DOI 2005) §3.02, p. 135. Here, after the
tribe was finally recognized in 1982, the government never obtained the consent of the
individual Indians to transfer theparcel 597-080-04 into trust for thetribe. Nordid the
government ever convey title to parcel 597-080-04 in trust for the tribe.
The government's own Handbook ofFederal Indian Law, (DOI 1982) Ch.l, Sec.
B2e, at 15-16 (1982 Ed.), and (DOI 2005) §3.02,146 (n99) Footoote 105, also admits that: "One
provision of the IRA gives the Secretary discretionary authority to accept or purchase land in
trust for Indians included within its provisions. 25U.S.C. 465. The Solicitor hasheld thatthe
Secretary may exercise this authority for all individuals ofone-halfor more Indian blood....This
approach has also been used for the Quartz Valley Indians, Duckwater Shoshone Indians, Yomba
Shoshone Indians, Port Gamble Band ofClallam Indians, and Sokaogan Chippewa Indians
(Mole Lake Band)... This procedure has been suggested for other Indian groups as well. E.g.,
Opinions ofthe Solicitor May 1,1937, reprinted in 1Dept of Interior, Opinions ofthe Solicitor,
supra not 76, at 1479 (status ofNahma and Beaver Island Indians). Handbook. (DOI 1982) Ch.1,
Sec.B2e, pp.15-16, fh. 86, and (DOI 2005) § 3.02,146 (n99) Footnote 105. In othercases nonreservation tribes have become eligible for organization under the IRA by first being recognized
asa tribe under theAct and then having the Secretary take land in trust for the tribe."
See also, Justice Breyer's concurring opinion at399, and Justice Stevensdissenting
opinion at 407 in Carcieri'. 'The Secretary haslongexercised his §465 trust authority in
accordance with this design. In the years immediately following the adoption of the IRA, the
Solicitor ofthe Department of the Interior repeatedly advised thatthe Secretary could take land
into trust for...individual Indians who qualified for federal benefits by lineage or blood quantum.
For example,...the Mole Lake Chippewa Indians ofWisconsin,...the Shoshone Indians of
Nevada, the St Croix Chippewa Indians ofWisconsin, and the Nahma and Beaver Inland
IndiansofMichigan. See 1 Dept. of Interior, Opinions ofthe Solicitor, pp. 706-707,724-725,
747-748 (1979)." Exhibit H.
In fact, the DOI Solicitor's Memorandum Opinion concerningthe St Croix Chippewas,
Opinions ofthe Solicitor, at 724, Ex. H, cited by both the Handbook, (DOI 2005) § 3.02,146
(n99) Footnote 105,and Justices Breyers at 1070,and Stevens, at 407, in Carcieri, confirm that
where the grant deed, Ex. D, fails to contain the final phrase,''until such time as they organize
under section 16 of the [IRA] and then for the benefit of such organization," the property
remains in trust for the individual Indians, who haveneverdecided to transfer theirbeneficial
interest to any subsequendy recognized tribe.
This is exacdy what happened here. The original grant deed, Ex. D, failed to contain the
final phrase transferring thebeneficial interest inthe property to thesubsequendy recognized
JIV. It isundisputed that the tribe did notexist and was notunder federal jurisdiction in 1934,
and was not created until 1981 and then recognized in 1982, when an acting deputy assistant
ER0172
June 30,2013
Page 13
secretary attheBIA first listed the JIV inthe Federal Register. The JIV still has notbeen
recognized by Congress. There isalso no dispute that the Government failed to follow itsown
guidelines in recording the grant deed. Opinions ofthe Solicitor at 668,724,747, and 1479,
attached inExhibit H. Hence, for there to be any subsequent transfer ofthe individual Jamul
Indians* designated beneficial interest in parcel 597-080-04 to any subsequently recognized
tribe, such atransfer must still be accomplished the old fashioned way by recording agrant deed.
Here, no grant deed ever transferred the individual Indians' designated beneficial interest in the
parcel to any tribe.
These Solicitors* memoranda further admit that the 1978 trust acquisition cannot be made
for a"tribe" that did not then exist With regard to the Mississippi Choctaw, the Solicitor found
that agrant deed simply cannot "designate" a "tribe" that doesn*t exist as abeneficiary, since
"there isin fact no existing tribe ofIndians in Mississippi known as the Choctaw Tribe."
Opinions ofthe Solicitor, at 668, Ex.H. There, Solicitor Margold describes how the grant deed
should have been prepared to put the property in trust for the Mississippi Choctaws: 'The United
States in trust for such Choctaw Indians ofone-halfor more Indian blood, resident in
Mississippi, asshall bedesignated by the Secretary of the Interior, until such time asthe
Choctaw Indians ofMississippi shall be organized as an Indian tribe pursuant to the act of
June 18,1934 (48 Stat 984), and then in trust for such organized tribe.** Opinions ofthe
Solicitor, at 668 (emphasis added), Ex. H. Similarly here, no such language appears inthe 1978
Jamul grant deed. Ex. D.
There, die Choctaw deed had tobeamended and re-recorded todesignate any
subsequently recognized tribe abeneficiary. Since the deed did notcontain thewords: "until
suchtime as the Choctaw Indians of Mississippi shall be organized asan Indian tribe" or
"then in trust for such organized tribe,"the property remained in trust for the individual
Indians, and not a tribe, asheld in Coast, 550 F.2d at651, and State Tax Comm., 535 F.2d 300,
304, where the court held that the absence of the words "then intrust for such organized tribe** in
a reliefactdesignating individual Choctaw beneficiaries meant that "only those individuals
designated by theInterior Secretary were tohave the benefit of this" designation, since "[n]either
a tribe nor a reservation is mentioned."
The government's own Solicitors written instructions to its BIA field superintendents
states: "In all of those cases where the tide papers have already been returned to the field,
instructions should be given to the field agents to havethe deedscorrected before they are
recorded. In that case where thedeed has already been recorded and accepted, it willbe
necessary to secure a new deed. The necessary corrections will be made in the other cases which
arenow pendingin this office. The error...arises perhaps out ofunusual circumstances, but its
one thatmight have been avoided." Opinions of the Solicitor, at668, Ex. H.
Here, die original deed was never corrected, altered,or re-recorded.The 1978 grant deed
does not contain the words, "until such time as they organize," proscribed by the U.S. Solicitor
to put the property into trust for the tribe, after the tribe was recognized. Ex. D. Nor does it
ER0173
June 30,2013
Page 14
state: "and then intrust for such organized tribe." Moreover, it isconceded that there was no
transfer ofthe designation ofthe individual Indian beneficiaries to any subsequently recognized
tribe, since no subsequent grant deed has ever been recorded.
Therefore, as amatter of law, the government isestopped by its own Solicitor's
memoranda to deny that the parcel 597-080-04 is held in trust for the designated individual
Jamul Indian beneficiaries, who are ofone-halfdegree Indian blood, since the government
concedes that the "Jamul Indians ofone-halfdegree or more Indian blood,'*did not exist as a
tribe, and were not recognized as atribe in 1978, let alone in 1934. Opinions ofthe Solicitor, at
668,724,747,1479, Ex. H, and Ex. I.
Hence, since there was never a subsequent transfer of theindividual Indians* beneficial
interest inthe trust land ofparcel 597-080-04 to the subsequently recognized tribe, the individual
beneficial ownership oftrust parcel 597-080-04 has never been under the governmental power of
the Jamul Indian Village, and as such, does not qualify for gambling under 25 U.S.C. 2703,
remains subject to California law, including, but not limited to, Public Law 83-280, Cal. Pub.
Res.Code and Cal. Health & Safety Codes, and remains held in trust for the beneficial use and
quiet enjoyment of the individuals of one-halfor more degree of Indian blood who then resided
on the Parcel
Becausethe ParcelWas Never Taken into Trust on Behalf ofthe JIV, and Has Never Been
Transferred to the JIV, the Parcel Cannot Qualify for Gamblingunder IGRA
IGRA only permits gambling on Indian lands "overwhich an Indian tribe
exercises governmental power." 25U.S.C. 2703(4)(B). 'The Secretary of theInterior [and the
NIGC] have noauthority to permit gaming onafter acquired trust lands absent thepower
delegated by Congress in IGRA." Lac Courte Oreilles Band ofLake Superior Chippewa Indians
v. United States (7th Cir. 2004) 367 F.3d 650,657.
The Parcel was never taken into trust on behalfofan Indian tribe, and has never been
transferred to die JTV; hence, the JTV hasneverlawfully exercised governmental powerover the
Parcel. Therefore, the NIGC's recentlypublished determination that the Parcel qualifies for
Indian gaming under IGRA, and consideration and approval oftheproposed Management
Contract between the JTV and San DiegoGaming Ventures LLC, is arbitrary, capricious, and
against the law.
Determining that the Parcel qualifies for Indiangaming under IGRA and approving the
proposed Management Contract between the JTV and San Diego Gaming Ventures LLC, after
October 17,1988, is arbitrary, capricious and violates the law with regard to taking land into
trust forIndian gaming afterOctober 17,1988,because at least two prior governors of California
found the development ofa casino on the Parcel would be detrimental to the surrounding
community,and the current governor has not concurred thatsuchdevelopment would not be
ER0174
June 30,2013
Page 15
detrimental to the surrounding community.
IGRA further provides with regard to Indian lands acquired after October 17,1988:
"Except as provided in subsection (b), gaming regulated by this Act shall not be conducted on
lands acquired by the Secretary in trust for the benefit ofan Indian tribe after the date of
enactment ofthis Act," Oct 17,1988, "unless-<b)(l)(A)...the Secretary, after consultation with
the Indian tribe and appropriate State and local officials, including officials ofother nearby
Indian tribes, determines that agaming establishment on newly acquired lands would be in the
best interest ofthe Indian tribe and its members, and would notbedetrimental to the
surrounding community, but only ifthe Governor ofthe State in which the gaming activity
is to be conducted concurs in the Secretary's determination.'* 25 U.S.C. 2719 (emphasis
added).
"Unless and until the appropriate governor issues aconcurrence, the Secretary ofthe
Interior has no authority under §2719(b)(1)(A) to take land into trust forthe benefit ofanIndian
tribe for the purpose ofthe operation ofagaming establishment..Therefore, while the Secretary
ofthe Interior investigates whether gaming on the proposed trust land 'would be inthe best
interest ofthe Indian tribe' and 'would not be detrimental to the surrounding community,' the
proper spokesperson for the land in question is necessarily arepresentative ofthe state where the
land is located." Lac Courte Oreilles Band ofLake Superior Chippewa Indians v. UnitedStates
(7th Cir. 2004) 367 F.3d 650,656; see also, Confederated Tribes ofSiletz Indians v. UnitedStates
(D.Ore. 1994) 841 F. Supp. 1479,1486.
Both California Governors, Davis and Schwarzenegger, have already determined
that the proposed "gaming establishment** would be "detrimental to the surrounding
community." As catalogued informer Governor Davis* July 17,2001 letter to the Acting
Superintendent ofthe BIA, and Governor Schwarzenegger's September 10,2004 letter to
Clayton Gregory, Pacific Regional Director ofthe BIA, their determination that such a gaming
establishment would be detrimental to the surrounding community isalso shared bythe local
government officials, including then California State Senator David G.Kelley, United States
Representative Duncan Hunter, the County ofSan Diego Board ofSupervisors, the
Jamul/Dulzura Planning Group, the Endangered Habitats League, and the Back Country
Coalition. Asreflected inthe public comments to the BIA onFebruary 6,2003,this
determination is alsoshared by then State Assemblyman, andthenSenator, Jay La Suer, the
Sierra Club,and the Otay WaterDistrict, not to mention 97%ofthe residentsofJamul.
As both Governors Davis and Schwarzenegger inescapably concluded: "TheTribe*s
proposal is inconsistent withthe Multiple Species Conservation Plan, established by the United
States Fishand Wildlife Service, theState Department of FishandGame and the County of San
Diego, restrictions on development and presentsa serious threat to the viability ofa significant
portion of the State's recentiy acquired ecologicalreserve."
ER0175
June 30,2013
Page 16
"...here, there are significant potentially unmitigable adverse impacts onsensitive State
resources..."
"...The Bureau*s own rules, likewise, compel rejection of this application. In this case,
the Tribe's proposed use represents a paradigm for the kind of land useconflicts which the
Bureau should not permit to occur..." "...it unnecessarily threatens to degrade significant State
environmental resources and isthus inimical to the public health and welfare. Webelieve that a
fair balancing of State and Tribal interests in this instance requires that the Bureau deny the
Tribe's application at this time."
Determining that the Parcel Qualifies for Gambling Violates the 10th Amendment
After California became asovereign State ofthe United States in 1850, on an equal
footing with all other States, itreceived regulatory and police power jurisdiction over all
property within the State - including formerly federally owned public domain lands. Once public
domain lands are conveyed to the State orinto private ownership, the United States retains no
regulatory authority over such public domain lands. Hawaii v. Office ofHawaiian Affairs, 556
U.S. 163,176 (2009); Kleppe v. New Mexico 426 U.S. 529,540 (1976).
'The power of the State toregulate the tenure of real property within herlimits, and the
modes ofits acquisition and transfer, and therules of its descent, and the extentto which a...
disposition ofit maybe exercised by itsowners, isundoubted. Itis anestablished principle of
law, everywhere recognized, arising from the necessity of the case, that the disposition of
immovable property, whether by deed, descent orany other mode, is exclusively subject to the
government within whose jurisdiction the property is situated...The tide and modes of
disposition ofreal property within the State, whether inter vivos ortestamentary, are not matters
placed under the control of Federal authority. Such control would be foreign to thepurposes for
whichthe Federal government wascreated, and would seriously embarrass the landed interests
of theState." United States v. Fox 94 U.S. 315,320-21 (1877). 'The Fox case is onlyoneofa
long line ofcases which have consistently held that part of theresidue ofsovereignty retained by
the states, a residue insured by theTenth Amendment, is the powerto determine...who may be
made beneficiaries,*' ofa deed to the United States. United States v. Burnison, 339 U.S. 87,9192(1950).
As Thomas Jefferson explained on February 15,1791, it would be "a prostitution oflaws,
which constitute thepillars ofourwhole system of jurisprudence," if the Constitution wereto be
interpretedto allow Congress"for a shade or two ofconvenience, more or less, [to] be
authorized to break down the most ancient and fundamental laws of the several states; such as
those againstMortmain, the laws of Alienage,the rulesofdescent, the acts ofdistribution, the
laws of escheat and forfeiture, the laws of monopoly." The Political Writings ofThomas
Jefferson (1993, Thomas Jefferson Foundation Inc.) at 104.
ER0176
June 30,2013
Page 17
Though the Federal government has the power under the Enclave Clause, Article I,
Section 8 oftheU.S. Constitution toacquire land within a State: To exercise exclusive
legislation in all cases whatsoever,... over all places purchased bythe consent ofthe legislature
ofthe State in which the same shall be, for the erection offorts, magazines, arsenals, dock-yards
and other needful buildings;" and to thereby acquire the "special maritime and territorial
jurisdiction," under 18 U.S.C. 7, "by consent ofthe legislature ofthe State inwhich die same
shall be," "Without the State's "consent" the United States does not obtain die benefits ofArt I,
§8, cl. 17, its possession being simply that ofan ordinary proprietor. James v. Dravo
Contracting Co., 302 U.S. 134,141-142 (1937)." Paul v. United States 311, US 245,264 (1963).
Upon such land acquisitions by the Federal government as an ordinary proprietor, the
United States does not have exclusive jurisdiction over the property. "The Constitution does not
command that every vestige ofthe laws ofthe former sovereignty must vanish. On the contrary
its language has long been interpreted so as to permit the continuance until abrogated ofthose
rules existing at the time ofthe surrender ofsovereignty which govern the rights ofthe occupants
of theterritory transferred. Thisassures that noarea however small willbe left without a
developed legal system for private rights." Paul v. United States, 371, US 245,264-65 (1963).
The authority to manage and regulate the use ofpublic lands originates inthe Property
Clause of the U.S. Constitution, which vests inCongress the "power to dispose of and make all
needful rules and regulations respecting... property belonging tothe United States." U.S.
Const, Art. IV, §3, cl. 2. The Executive Branch historically exercised its own authority to
withdraw public lands tocreate Indian reservations, which the Supreme Court affirmed in
US. v. Midwest Oil Co. 236 U.S. 459 (1915). However, the Federal Land Policy Management
Act("FLPMA") expressly repealed all grants of authority tothe Executive recognized in
Midwest Oiland 29prior statutory grants of authority. Actof Oct 21,1976, Pub. L. No. 94-579,
§ 704(a), 90 Stat 2743,2792.
"Ordinarily, [such] anIndian reservation isconsidered part of the territory ofthe State."
Nevada v. Hicks533, U.S. 353,361-62 (2001). "It is not unusual for the United States to own
within a State lands which are setapart and used for public purposes. Such ownership and use
without more do notwithdraw the lands from the jurisdiction of the State...A typical illustration
is found in the usual Indian reservation set apart within a State as a place where theUnited States
may care for its Indian wards and lead them into habits and ways ofcivilized life. Such
reservations are part ofthe State within which they lieand herlaws, civil andcriminal, havethe
same force therein as elsewhere within her limits, save that they can have only restricted
application to the Indian wards." Surplus Trading Company v. Cook, 281 U.S. 647,650 (1930).
This is the reason that"Indian reservations, however, arenot [exclusive] federal
enclaves, and instead represent land owned by the United States for public purposes," which are
a subset of partial federal enclaveswhere the Statehas never consented to cede its jurisdiction
over the land to the United States. Carcieriv. Norton (1st Cir.2005) 398 F.3d 22,31-32. "State
sovereignty does not end at a reservation's border." Nevada v. Hicks, 533 U.S. 353,361 (2001),
ER0177
June 30,2013
Page 18
quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515,561.
After public domain property is conveyed to the State, or into private ownership, the
United States no longer has authority to acquire non-public domain lands, without condemnation
or consent of the State. Hawaii v. Office ofHawaiian Affairs, 556 U.S. 163,176 (2009).
Moreover, in 1864, Congress limited the number of Indian Reservations that could be created in
California from public domain lands to four, (13 Stat 39.) and thereafter did not create a
reservation for the JIV.
In the case ofHawaii v. Office ofHawaiian Affairs, 129 S Ct 1436 (2009), aunanimous
Supreme Court held that after federal public domain lands pass out of federal ownership to a
State, they cannot be restored to federal jurisdiction by aunilateral federal act that purports to
change thenature oftheoriginal grant of jurisdiction to theState, without theconsent of the
State. TheSupreme Court concluded that "itwould raise grave constitutional concerns" if
Congress sought to "cloud [the State's] tide to its sovereign lands'* after it had joined the Union.
"We have emphasized that Congress cannot, after statehood, reserve orconvey.. .lands that have
already been bestowed upon astate..." Hawaii v. Office ofHawaiian Affairs, at 176.
Here, the Parcel was never reserved orwithdrawn from public domain lands tocreate an
Indian reservation. Prior to the Daley grant deed in 1978, the Parcel had always been privately
owned; first within Mexico, thenthe Republic ofCalifornia, thenwithin the United States when
acquired from Mexico by way of the Treaty of Guadalupe-Hildalgo of 1848,9 Stat 926, and
then within the State ofCalifornia. When the State ofCalifornia entered the Union on
September 9,1850,on an equal footing with all other States, per Article IV, Section 3 ofthe
U.S. Constitution, theParcel was still privately owned and within theexclusive jurisdiction of
the State of California.
When the Daleys deeded the Parcel to "the United States in trust for those Jamul Indians
ofone-halfdegree or more Indian blood astheSecretary shall designate,** in 1978, the Stateof
California neverceded jurisdiction overthe Parcel to theUnited States. This is confirmed by the
lackof any "notice of suchacceptance" of the"cession of suchjurisdiction, exclusive or partial,'*
having been filed with the Governorof the State ofCalifornia, as required by 40 U.S.C. 255, and
the "index ofrecordofdocuments with description ofthe lands over which the Umted States
acquired jurisdiction," required by Cal. Govt. Code 127.
California's general consent to the acquisition ofstate lands by theUnited States is
limited to lands lawfully purchased or condemned, as set out in Government Code §110, and
does not apply to gifts, as made by the Daleys here. Thus, the Parcel remains within the
concurrent jurisdiction of the State ofCalifornia today. California's jurisdiction over such land
as is subsequendy acquired by the United States in trust for die benefit of individual Indians
under the IRA, 25 U.S.C. 465, extends to all matters not interfering with the control which
federal government has exercised over Indian affairs,as held in Acosta v. County ofSan Diego
(1954) 126 Cal. App. 2d 455. Moreover, the SupremeCourthas acknowledged that Congress*
ER0178
June 30,2013
Page 19
power to exercise control overIndian affairs, still has"constitutional limits" ifits Indian
legislation "interferes with the power or authority ofany State." UnitedStates v. Lara, 541 U.S.
193,205, (2004); Gila River Indian Cmty. v. United States (9th Cir., May 20,2013) 2013 US
App. LEXIS 10056, *91, J. Smith, dissenting.
California's general consent to federal acquisition oflands is further qualified by the
requirement that the acquisition be pursuant to "the laws under which the purchase or
condemnation ismade." Cal. Govt. Code §110. Therefore, since the Parcel has never been taken
into trust for any tribe, nor transferred to any tribe, any subsequent acquisition by the United
States, through purchase orcondemnation ofthe Parcel, intrust for a tribe, will beafter October
17,1988, and therefore will not obtain the state's general consent to cede jurisdiction to the
United States, nor qualify for gambling under IGRA, where, asnoted above, the Governor has
not concurred in adetermination that "agaming establishment on newly acquired lands would
not bedetrimental tothe surrounding community." 25 U.S.C. 2719.
Moreover, the United States cannot acquire its "special maritime and territorial
jurisdiction," over "Any lands reserved oracquired for the use ofthe United States, and under
the exclusive orconcurrent jurisdiction thereof, orany place purchased orotherwise acquired by
theUnited States" without the "consent of the legislature of the State in which the" Parcel is
located. 18 U.S.C. 7.
Therefore, theNIGC's determination that the Parcel qualifies forgambling under IGRA,
and consideration of the approval ofthe proposed Management Contract forgambling onthe
Parcel, is anunconstitutional infringement ofCalifornia's remaining jurisdiction over the Parcel,
private land tides, andCalifornia's state and local police power in violation of the 10*
Amendment to the U.S. Constitution, because California has never consented to cede its
jurisdiction overtheParcel to the United States, and the Parcel hasnever become exclusively
federal public domain landand is, instead, landthathas beentransferred to the State while
owned by private owners, and now owned by theUnited States as any otherordinary proprietor,
subject to California's retainedjurisdiction.
Determining that the Parcel Qualifies as "Indian Lands** under 25 U.S.C. 2703
Is Arbitrary, Capricious and Against the Law and the U.S. Constitution
In light of the foregoing evidence and authority, the NIGC's final agencyaction
detennimng that theParcel purportedly qualifies for gambling as"Indian Lands" under 25
U.S.C. 2703 is arbitrary, capricious and against the law. As the court noted in ButteCounty v.
Hogen. (D.C. Cir. 2010) 613 F.3d 190,194, the Secretary's decision:
must provide an interested party-[here the JAC and the citizens of San Diego
County]-with a "briefstatement of the grounds for denial" of the party's request.
As this court held in Taurus Records. Inc. v. DEA, 259 F.3d 731,737 (D.C.Cir.
2001), the agency must explain why it decided to act as it did. The agency's
ER0179
June 30,2013
Page 20
statement mustbeoneof "reasoning"; it must notbejusta "conclusion"; it must
"articulate asatisractory explanation" for its action. 259 F.3d at 737 (quoting
Henry J. Friendly, Chenery Revisited: Reflections on Reversal and Remand
ofAdministrative Orders, 1969 Duke L.l. 199,222, and Motor Vehicle Mfrs. Ass'n
ofus., Inc. v. State Farm Mut. Auto Inc. Co., 463 U.S. 29,43,103 S.Ct 2856, 77
L.Ed.2d 443 (1983)).
Second, an agency's refusal to consider evidence bearing onthe issue before it
constitutes arbitrary agency action within the meaning of §706 [ofthe
Administrative Procedure Act, 5U.S.C. §555 etseq.]. See,e.g., State Farm, 463
U.S. at 43,103 S.Ct 2856; Comcast Corp. v. FCC, 579 F.3d 1, 8(D.C. Cir. 2009).
This proposition may bededuced from case law applying the substantial evidence
test, under which an agency cannot ignore evidence contradicting itsposition.
"The substantiality of evidence must take into accountwhatever in the record
fairly detracts from its weight." Universal Camera Corp. v.NLRB, 340 U.S. 474,
48788,71 S.Ct 456,95 L.Ed. 456(1951). Although weare dealing widi the
question whether agency action isarbitrary or capricious, "in their application to
the requirement of factual support the substantial evidence test and die arbitrary
or capricious test are one and the same." Ass 'n ofData Processing Servo Orgs.,
Inc. v. BdofGovernors ofFed. Reserve Sys.,lA5 F.2d 677,683 (D.C. Cir. 1984);
accord. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227,243 (D.C. Cir.
2008).
Similarly, adistrict court recently found inCS-360, LLC v. us. Department of Veteran
Affairs (D.D.C. 2012) 846 F.Supp.2d 171,185, as follows:
In order to avoid a finding that the challenged agency action wasarbitrary or
capricious, the"agency must[have] examinefd] therelevant data and articulate[d]
a satisfactory explanation for its action." [Citations.] .Inarticulating the reason for
its action, the agency"must haveprovided a'rational connection between the
facts found and thechoice made.", [Citations.] An agency's decision may be said
to be arbitrary orcapricious ifanyofthe following apply: (i) its explanation runs
counter to the evidence before theagency oris so implausible that it couldnot be
ascribed to a difference ofview or the productof agency expertise; (ii) the agency
entirely railed to consider an important aspect of the problem or issue; (iii) the
agency relied on factors which Congress did not intend the agency to consider; or
(iv) the decision otherwise constitutes a clear error ofjudgment Motor Vehicle
Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct 2856; accordJicarillaApacheNation v.
Us. Dep'toflnterior, 613 F.3d 1112,1118 (D.C.Cir.2010).
Consequently, any decision to approvethe proposed Management Contract between the
JIV and SDGV would constitutean arbitrary andcapricious actionin violation ofthe law and the
U.S. Constitution,subject to judicialinvalidation, becausethe Parcel does not qualify as "Indian
ER0180
June 30,2013
Page 21
Lands** under 25 U.S.C. 2703, because itis not, and has never been, lawfully under the exercise
ofgovernmental power by the JTV, and because California has never ceded jurisdiction over the
Parcel to the United States.
Serious environmental issues regarding the Proposed Management Contract have not been
adequately addressed
The National Environmental Policy Act (NEPA) requires that anEnvironmental Impact
Statement (EIS) be prepared for all "major Federal actions significantiy affecting the quality of
the human environment." (42 U.S.C. §4332(2)(Q.) An agency may first prepare an
environmental assessment to make apreliminary determination whether the proposed action may
have asignificant environmental effect (Nat. Parks ^Conservation Assn. v. Babbitt (9th Cir.
2001) 241 F.3d 722,730; see 40 C.F.R. §§ 1501.4,1508.9.) Ifsuch an effect is anticipated, a
more detailed EIS isrequired. (Native Ecosystems Council v. Us. Forest Service (9th Cir. 2005)
428 F.3d 1233,1239.) NEPA also requires an agency to take a "hard look" at the environmental
consequences ofitsactions and to provide a "'convincing statement ofreasons to explain why a
project's impacts are insignificant. "* (Nat. Parks &Conservation Assn. v. Babbitt, supra, 241
F.3d atp.730, quoting Metcalfv. Daley (9th Cir. 2000) 214 F.3d 1135,1141.)TheJAC
believes that the concerns as discussed below, require additional discussion and analyses to
allow the NIGC to take the required "hard look" atthe 'environmental consequences ofthe
proposed action, and that afull blown EIS must be prepared before the proposed Management
Contractcan be approved.
San Diego County and itssubordinate divisions, including theOffice of County Counsel
and the Jaroul-Dulzura County Planning Group, have consistently raised serious concerns
regarding theEnvironmental Assessments that have been previously prepared by dieBIA and
the JIV as lead agencies. (See, the 14 page comment letter from San Diego County regarding the
Draft Tribal Environmental Evaluation, dated April 30,2012, the 5-page comment letter from
San Diego County regarding the Final Tribal Environmental Evaluation, dated January 8,2013,
the 8 page letter from the Jamul-Dulzura County Planning Group, dated March 14,2001, the28
page letter from County Counsel dated January 7,2007 and itsfollow uponMay 14,2007, and
Supervisor Jacob's letterof January 15,2013).
These comment letters, among other things, address multiple issues of environmental
qualityand availability that havenot beenadequately evaluated and addressed, including but not
limited to,significant unmitigable impacts on transportation andtraffic, road access, fire and
emergencyservices, biology and the Multiple SpeciesConservation Plan for the neighboring
Rancho Jamul Ecological Preserve,failure to complywith CEQAand NEPA, hydrology and
water quality, groundwater resources, soils and geology, culturaland archeological resources,
not to mention the interment of human remains and funerary objects on the Parcel, noise, air
quality and climate change, wastewater treatment, electrical power, visual impacts, community
character, growth, and dark skies.
ER0181
June 30,2013
Page 22
As noted above, both California Governors, Davis and Schwarzenegger, have already
determined that the proposed "gaming establishment" would be "detrimental to the surrounding
community.'* As catalogued in former Governor Davis' July 17,2001 letter to the Acting
Superintendent ofthe BIA, and Governor Schwarzenegger's September 10,2004 letter to
Clayton Gregory, Pacific Regional Director ofthe BIA, their determination that such againing
establishment would be detrimental to the surrounding community is also shared by the local
government officials, including then California State Senator David G. Kelley, United States
Representative Duncan Hunter, the County ofSan Diego Board ofSupervisors, the
Jamul/Dulzura Planning Group, the Endangered Habitats League, and the Back Country
Coalition. As reflected in the public comments to the BIA on February 6,2003, this
determination is also shared by State Assemblyman Jay La Suer, the Sierra Club, and the Otay
Water District, not to mention 97% of the residents ofJamul.
Since the County and State's multiple environmental concerns have not been met bythe
to-date environmental analysis, itis more than evident that preparation and completion ofa full
blown EIS must precede approval of the proposed Management Contract, and that amere
Supplemental EIS will not be adequate given the number and extent of changes that have been
made to the proposed casino development project since 2001. Until allof theenvironmental
concerns outiined by San Diego County and the State ofCalifornia in these letters areaddressed
and resolved, theNIGC should notapprove the proposed Management Contract
The land in question is not clearly described
Under 25U.S.C. 2703 and 25 C.F.R. § 151.9 the request for approval of theManagement
Contract shall set out adescription of the land upon which the gambling is proposed tooccur.
The Notice herein is inadequate because it fails to clearly describe the land upon which the JTV
seeks to have SDGV manage the proposed gambling and therefore must be corrected, with notice
to interested parties, before the matter canproceed.
CONCLUSION
Jamulians Againstthe Casino appreciates the opportunity to provide these commentsand
urges the NIGC to deny this Application at this time. Please note that these comments do not
constitute the entirety ofJAC's comments or those of its members. Many ofJAC's members will
be submitting additional comments in separate letters.
Sincerely,
Jamulians Against the Casino
Marcia Spurgeon, Secretary
ER0182
ATTACHMENT 2
Case 2:13-cv-01920-KJM-KJN Document 60-2 Filed 01/02/15 Page lot 19
1
KENNETHR. WILLIAMS,State BarNo. 73170
Attorney at Law
2
980 9th Street, 16th Floor
3
Telephone: (916) 543-2918
4
5
Jamul Action Committee, Jamul Community Church,
DarlaKasmedo, PaulScripps, GlenRevell, and
William Hendrix
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
12
JAMUL ACTION COMMITTEE ET AL.
Case No. 2:13-cv-01920-KJM-BUN
13
PLAINTIFFS' REQUEST FOR
Plaintiffs, JUDICIAL NOTICE IN SUPPORT OF
14
MOTION FOR A WRIT OF MANDATE
AND FOR A PRELIMINARY
INJUNCTION
15
v.
16
Date: January 30,2015
17
Time: 10:00 a.m.
Place: Courtroom No. 3,15 Floor
TRACIE STEVENS, ET AL
18
Defendants.
Before: Honorable Kimberly J. Mueller
19
20
21
22
23
24
Plaintiffs, pursuant to Federal Rules of Evidence, Rule 201, request thattheCourt take
judicial notice ofthe following documents, copies ofwhich are attached Exhibits tothis request:
1. Exhibit A - TheDepartment ofInterior, Bureau of Indian Affairs' "Notice ofIntent to
25
Prepare anEnvironmental Impact Statement for the Proposed Jamul Indian Village 101
26
Acre Fee-to-Trust Transfer and Casino Project, SanDiego County, CA"published in the
27
Federal Register on April 2,2002 (67 Fed. Reg. 15582).
28
1
PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR. A^WRIT Of
MANDATE AND FOR A PRELIMINARY INJUNCTION (Case No. 2:13-cv-01920 KJM KJN)
ER0136
1
2
3
2. Exhibit B - The Department of Interior, Bureau of Indian Affairs' Notice of"Draft
Environmental Impact Statement for the Jamul Indian Village 101 Acre Fee-to-Trust
Transfer andCasino Project, San Diego County, CA" publishedin the Federal Register on
4
January 10,2003 (68 Fed. Reg. 1475).
5
3. Exhibit C - The Department of Interior, National Indian GamingCommission's and
6
7
Bureau of Indian Affairs' "Notice of Intentto Prepare a Supplemental Environmental
8
Impact Statement for the Approval of aGaming Management Contract" for theJamul
9
Indian Village/Penn-National Casino Project in San Diego County, California, published
10
11
12
in theFederal Register on April 102013 (78 Fed. Reg.21398-21399).
4. Exhibit D - Letter from Darren Gretler, Assistant Directorof Planning& Development
Services, County of San Diego, dated July 30,2013, to the John Rydzik of the Bureau of
13
Indian Affairs inresponse to the Notice ofPreparation ofthe SEIS. Mr. Gretler states that
14
15
16
the County will withhold formal comments until the "SEIS public review period."
5. Exhibit E - Published Press Release from Jamul Indian Village andPenn National dated
17
December 17,2014, announcing the completion ofthe site excavation and the initiation of
18
construction of the "Hollywood Casino Jamul-San Diego."
19
20
Dated: December 31,2014
21
Respectfully submitted,
22
23
24
A/ Kenneth R. Williams
25
KENNETH R. WILLIAMS
Jamul Action Committee, Jamul Community
26
Church, DarlaKasmedo, PaulScripps, Glen
Revell, and William Hendrix
27
28
'PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR-A WRIT OF
iffiSATOANfi> FOR A PRELIMINARY INJUNCTION (Case No. 2:13-cv-01920 KJM KJN)
ER0137
REQUEST FOR JUDICIAL NOTICE
EXHIBIT A
ER0138
Federal Register, Volume 67 Issue 63 (Tuesday, April 2,2002)
Page 1of2
[Federal Register Volume 67, Number 63 (Tuesday, April 2, 2002)]
(Notices]
{Page 15582]
From the Federal Register Online via the Government Printing Office [wwiv.-ipo.gov]
[FR Doc No:
02-7948]
Bureau of Indian Affairs
Notice of Intent To Prepare an Environmental Impact Statement for
the Proposed Jamul Indian Village 101 Acre Fee-to-Trust Transfer and
Casino Project, San Diego County, CA
AGENCY: Bureau of Indian Affairs,
ACTION:
Interior.
Notice.
SUMMARY: This notice advises the public that the Bureau of Indian
Affairs (BIA), with the cooperation of the Jamul Indian Village and the
National Indian Gaming Commission (NIGC), intends to gather information
necessary for preparing an Environmental Impact Statement (EIS) for the
proposed 101 acre Fee-to-Trust Transfer and Casino Project in San Diego
County, California. The purpose of the proposed action is to help meet
the land base and economic needs of the Jamul Indian Village.
DATES: Comments on the scope and implementation of this proposal must
arrive by April 22, 2002.
ADDRESSES: Mail or hand carry written comments to Ronald M. Jaeger,
Regional Director, Pacific Region, Bureau of Indian Affairs, 2800
Cottage Way, Sacramento, California 95825-1846.
FOR FURTHER INFORMATION CONTACT: William Allan, (916) 978-6043.
SUPPLEMENTARY INFORMATION: The Jamul Indian Village is located in
eastern San Diego County, approximately one mile south of the community
of Jamul. The project area is bordered on the north by Melody Lane, on
the west by vacant and residentially developed land, on the south by
vacant land and on the east by State Route 94. State Route 94 provides
direct access to downtown San Diego, approximately 20 miles to the
west, where it intersects with Interstate 5.
The Jamul Indian Village proposes that 101 acres of land be taken
into trust, that a casino be constructed on existing trust land, and
that parking and* other facilities supporting the casino be constructed
on the 101 acre trust acquisition. The gaining facility will be managed
by Lakes Kean Argovitz Resorts-California, LLC (LKAR-CA), on behalf of
the tribal government, pursuant to the terms of the management
agreement between the tribal government and LKAR-CA. The BIA will serve
as the Lead Agency for National Environmental Policy Act compliance.
The NIGC, which is responsible for approval of the gaming management
contract, will be a Cooperating Agency.
The BIA released an Environmental Assessment (EA) on the proposed
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Federal Register, Volume 67 Issue 63 (Tuesday, April 2,2002)
Page 2of2
action for public comment on February 1, 2001. The EA was revised in
response to public comment and released as a final EA, with a Finding
of No Significant Impact (FONSI), on November 16, 2001. The FONSI was
based on, among other factors, mitigation of potentially significant
impacts to traffic on highway 94. After three parties appealed the
FONSI, the BIA determined the mitigation proposed for traffic to be too
provisional, hence an EIS would be required.
The BIA and NIGC propose to use the extensive public comments
received during the public review of the EA as scoping comments for the
EIS* Areas of environmental concern identified include, in addition to
traffic, threatened and endangered species, wildlife habitat and
conservation areas, wastewater disposal, air quality, and socio
economic impacts. The range of issues to be addressed may be further
expanded based on comments received during the scoping process.
Authority
This notice is published in accordance with section 1503.1 of the
Council on Environmental Quality Regulations (40 CFR Parts 1500 through
1508), implementing the procedural requirements of the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.),
and the Department of the Interior Manual (516 DM 1-6), and is in the
exercise of authority delegated to the Assistant Secretary—Indian
Affairs by 209 DM 8.1.
Dated: March 14,
Neal A. McCaleb,
2002.
Assistant Secretary—Indian Affairs.
[FR Doc. 02-7948 Filed 4-1-02; 8:45 am]
BILLING CODE 4310-W7-P
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ER0140
EXHIBIT B
ER0141
Federal Register, Volume 68 Issue 7 (Friday, January 10,2003)
Page 1 of 3
[Federal Register Volume 68, Number 7 (Friday, January 10, 2003)]
[Notices]
[Page 1475]
From the Federal Register Online via the Government Printing Office (www.gpo.jov]
[FR Doc No: 03-517]
Bureau of Indian Affairs
Draft Environmental Impact Statement for the Jamul Indian Village
101 Acre Fee-to-Trust Transfer and Casino Project, San Diego County, CA
AGENCY:
Bureau of Indian Affairs,
ACTION:
Notice.
Interior.
SUMMARY: This notice advises the public that the Bureau of Indian
Affairs (BIA), in cooperation with the Jamul Indian Village and the
National Indian Gaming Commission (NIGC), intends to file a draft
Environmental Impact Statement (DEIS) with the O.S. Environmental
Protection Agency for the proposed approval of a 101-acre fee-to-trust
transfer, a gaming management contract and the construction of
associated casino and support facilities. Details on the proposed
action, location and areas of environmental concern addressed in the
DEIS are provided in the SUPPLEMENTARY INFORMATION section. This notice
also announces a public hearing to receive comments on the DEIS.
DATES: Written comments on the DEIS must arrive by March 2, 2003. The
public hearing will be held on February 6, 2003, from 6 p.m. to 10
p.m., or until the last public comment is received.
ADDRESSES: You may mail or hand carry written comments to Ronald
Jaeger, Regional Director, Bureau of Indian Affairs, Pacific Regional
Office, 2B00 Cottage Way, Sacramento, California 95825-1846. Please
include your name, return address and the caption, **DEIS Comments,
Jamul Indian Village 101 Acre Fee-to-Trust and Casino Project, San
Diego County, California," on the first page of your written comments.
The public hearing will be at the El Cajon Community Center, 195
East Douglas, El Cajon, California 92020. This meeting will be cohosted by the BIA and Jamul Indian Village.
To obtain a copy of the DEIS, please write or call William Allan,
Environmental Protection Specialist, Pacific Region, Bureau of Indian
Affairs, 2800 Cottage Way, Sacramento, California 95825-1846, telephone
(916) 978-6043. Copies of the DEIS are also available for review at the
Jamul Indian Village Tribal Administration Office, 14191 Highway 94,
Jamul, California 91935, and at the following two public libraries: San
Diego County Library—El Cajon Branch, 201 East Douglas Avenue, El
Cajon, California 92020; and San Diego County Library—Fletcher Hills
Branch, 576 Garfield Avenue, El Cajon, California 92020.
FOR FURTHER INFORMATION CONTACT: William Allan, (916) 978-6043.
htto://vww.ei»^
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Federal Register, Volume 68 Issue 7 (Friday, January 10,2003)
Page 2 of3
SUPPLEMENTARY INFORMATION: The Jamul Indian Village is located in
eastern San Diego County, California, approximately one mile south of
the community of Jamul. The project area is bordered by Melody Road to
the north, vacant and residentially developed land to the west, vacant
land to the south and State Route 94 to the east. State Route 94
provides direct access to downtown San Diego, approximately 20 miles to
the west,
where it intersects with Interstate 5.
The Jamul Indian Village proposes that 101 acres of land be taken
into trust and that a casino, parking, hotel and other facilities
supporting the casino be constructed on the existing Jamul Indian
Village site and the 101-acre trust acquisition. The gaming facility
will be managed by Lakes Kean Argovitz Resorts-California, LLC, (LKARCA) on behalf of the Tribal Government, pursuant to the terms of the
management agreement between the Tribal Government and LKAR-CA. The BIA
serves as the Lead Agency for National Environmental Policy Act (NEPA)
compliance, with the NIGC, which is responsible for approval of the
gaming management contract, acting as a Cooperating Agency.
Alternatives to the proposed project that are considered in the
DEIS include: (1) Trust acquisition and casino and hotel construction
(the proposed action); (2) trust acquisition, casino and retail
development; (3) trust acquisition and retail development; (4) trust
acquisition, hotel/casino north of Melody Road; and (5) no action.
Environmental issues addressed in the DEIS include land and water
resources, air quality, biological resources, cultural resources,"
socioeconomic conditions, resource use patterns, public services,
environmental justice, growth inducing effects, and cumulative impacts.
Public Comment Solicitation
Comments, including names and addresses of respondents, will be
available for public review at the BIA mailing address shown in the
ADDRESSES section, during regular business hours, 9 a.m. to 4 p.m.,
Monday through Friday, except holidays. Individual respondents may
request confidentiality. If you wish us to withhold your name and/or
address from public review or from disclosure under the Freedom of
Information Act, you must state this prominently at the beginning of
your written comment. Such requests will be honored to the extent
allowed by the law. We will not, however, consider anonymous comments.
All submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, will be made available for public inspection in their
entirety.
Authority
This notice is published in accordance with section 1503.1 of the
Council on Environmental Quality Regulations (40 CFR part 1500
throughl508) implementing the procedural requirements of the National
Environmental Policy Act of 1969, as amended {42 U.S.C. 4371 et seq.),
and the Department of the Interior Manual (516 DM 1-6), and is in the
exercise of authority delegated to the Assistant Secretary—Indian
Affairs by 209 DM 8.
Dated: January 2, 2003.
Neal A.
McCaleb,
Assistant Secretary—Indian Affairs.
(FR Doc. 03-517 Filed 1-9-03; 8:45 am)
BILLING CODE 4310-W7-P
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EXHIBIT C
ER0144
Federal Register,Volume 78 Issue 69 (Wednesday, April 10,2013)
Page 1 of 3
[Federal Register Volume 78, Number 69 (Wednesday, April 10, 2013)]
[Notices]
[Pages 21398-21399]
From the Federal Register Online via the Government Printing Office [www.qpo.gov]
[FR Doc No: 2013-08267]
Notice of Intent to Prepare a Supplemental Environmental Impact
Statement for the Approval of a Gaming Management Contract
AGENCY: National Indian Gaming Commission, Interior.
ACTION:
Notice.
SUMMARY: This notice advises the public that the National Indian Gaming
Commission (NIGC) as lead agency, in cooperation with the Jamul Indian
Village (Tribe), intends to gather information necessary to prepare a
supplemental environmental impact statement (SEIS) for the proposed
Gaming Management Contract between the Tribe and San Diego Gaming
Ventures, LLC (SDGV) . The Gaming Management Contract, if approved,
would allow SDGV to manage the approved 203,000 square foot tribal
gaming facility to be located on the Tribe's Reservation, which
qualifies as %'Indian Lands" pursuant to 25 U.S.C. 2703.
The Bureau of Indian Affairs (BIA), Pacific Region, Division of
Environmental, Cultural Resources Management & Safety will serve as
environmental staff to the NIGC in the preparation of the SEIS. As
such, the 3IA is the contact for further information, in lieu of the
NIGC.
This notice also announces that no public scoping meeting will be
held for the SEIS.
DATES: Written comments on the scope and implementation of this
proposal must arrive by May 10, 2013. No public scoping meeting will be
held for the proposal given the long history of the project and the
extensive public input received to-date.
ADDRESSES: You may mail, email, hand carry or fax written comments to:
Mr. John Rydzik, Chief, Division of Environmental, Cultural Resources
Management &Safety, Bureau of Indian Affairs, Pacific Region, 2800
Cottage Way, Sacramento, CA 95825; Facsimile (916) 978-6055; Email
iohn.rydzikB'oia .co".
[[Page 21399]]
FOR FURTHER INFORMATION CONTACT: Mr. John Rydzik (916) 978-6051.
SUPPLEMENTARY INFORMATION: The Tribe is requesting NIGC approval of a
Gaming Management Contract between the Tribe and SDGV for the
management of a 203,000 square foot gaming facility on the Tribe's
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ER071454
Federal Register, Volume 78 Issue 69 (Wednesday, April 10,2013)
Page 2of3
Reservation, which is located in unincorporated San Diego County
approximately 1-mile south of the unincorporated community of Jamul.
Pursuant to the Indian Gaming Regulatory Act, signed into law on
October 17, 1988, the Tribe may enter into a Gaming Management Contract
for the operation and management of a gaming facility subject to the
approval of the NIGC. The purpose of the Proposed Action is to help
provide for the economic development of the Jamul Reservation.
The enterprise to be managed includes a gaming facility, a multi
level parking structure, surface parking lot, fire-fighting facilities,
wastewater treatment plant/disposal facilities, water delivery system,
and improved on-site traffic circulation. The main use within the
gaming facility is the gaming floor, which would contain slot machines,
table games, and poker entertainment. The total estimated gaining floor
area for the gaming facility is 70,000 square feet. The exterior of the
complex would include downcast lighting consistent with San Diego
County codes and ordinances to maintain consistency with the
surrounding area.
The environmental effects of a gaming facility on the Tribe's
Reservation has been extensively studied and evaluated since 2000 when
the Tribe originally approached the BIA and NIGC with fee-to-trust and
Gaming Management Contract requests. Serving as the lead agency for
these initial requests, the BIA originally developed and published an
environmental assessment (EA) on February 1, 2001. The NIGC served as a
Cooperating Agency for this early request. The Final EA was completed
and published in November 2001. Following a decision by the BIA and
NIGC that the mitigation measures in the EA were too provisional, the
BIA and NIGC developed an environmental impact statement (EIS) for the
proposed fee-to-trust and Management Contract requests. The notice of
intent for the EIS was published in the Federal Register on April 2,
2002 (67 FR 15583) . The notice of availability for the Draft EIS was
published in the Federal Register on January 17, 2003 (68 FR 2538).
After release of the Draft EIS, a public meeting was held on February
6, 2003 at the El Cajon Community Center to take comments from the
public. Following receipt and consideration of all comments on the
Draft EIS, the notice of availability of the Final EIS was published on
November 14, 2003 (68 FR 64622).
Between late 2003 and early 2006, the Tribe revised their project
to eliminate the fee-to-trust component and to reconfigure all uses
onto the existing Reservation except for an access road, which is
designed to travel through adjacent tribally owned land connecting the
Reservation with State Route 94. The project modifications were
evaluated by the Tribe in a Tribal Environmental Impact Statement/
Report (December 2006). Additional changes to the project resulted in
the release of a Draft Tribal Environmental Evaluation (Tribal EE)
in
March 2012 and a Final Tribal EE in January 2013. Between release of
the Draft and Final Tribal EE, the Tribe provided a public comment
period and held a public meeting to accept comments on the Draft Tribal
EE. All written and oral comments provided by the public during the
comment period were responded to and incorporated into the Final Tribal
EE. The Final Tribal EE was certified as adequate and complete by the
Tribe in January 2013. Now that the Tribe has completed the final
version of the proposed gaming facility, they are requesting NIGC
approval of a Gaming Management Contract between the Tribe and SDGV.
The gaming facility has always been designed to be located on the
Reservation; however, other uses such as the wastewater treatment/
disposal facilities, fire-fighting facilities, and structured parking
were designed to be located on adjacent land north of the Reservation.
The reconfiguration of uses to place all features on the Reservation,
together with the passage of time since the Final EIS was circulated,
has resulted in the need for the NIGC to develop and issue an SEIS to
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Federal Register, Volume 78 Issue 69 (Wednesday, April 10,2013)
Page 3of3
Case 2:13-cv-01920-KjM-KjN Document 60-2 Filed 01/02/15 Page 12 of19
address these changes. No other alternatives will be addressed in the
SEIS.
Issues to be addressed in the SEIS include updating the
environmental baseline and impact/mitigation analysis of the 2003 Final
EIS as it relates to the new design alternative. Areas to be analyzed
include land resources, water resources, air quality, biological
resources, cultural and paleontological resources, socioeconomics,
transportation, land use, agriculture, public services, noise,
hazardous materials and visual resources.
Directions for Submitting Public Comments: Please include your
name, return address, and the caption **SEIS Jamul Gaming Project** on
the first page of any written comments you submit. Please note that
comments will only be received in writing by email, facsimile or
regular mail. Pursuant to 40 CFR 1502.9, no public scoping meeting will
be held for this SEIS.
Public Availability of Comments: Comments, including names and
addresses of respondents, will be available for public review at the
BIA, Pacific Region address shown in the ADDRESSES section of this
notice, during regular business hours, Monday through Friday, except
holidays. Before including your address, phone number, email address,
or other personal identifying information in your comment, you should
be aware that your entire comment—including your personal identifying
information—may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Authority:
This notice is published in accordance with 25
O.S.C. 2711, section 1501.7 of the Council on Environmental Quality
Regulations (40 CFR parts 1500 through 1508), and the Department of
the Interior regulations (43 CFR part 46), implementing the
procedural requirements of NEPA, as amended (42 U.S.C. 4321 et
seq.).
Dated: April 4, 2013.
Dawn Houle,
Chief of Staff.
[FR Doc. 2013-08267 Filed 4-9-13; 8:45 am]
BILLING CODE 7565-01-P
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EXHIBIT D
ER0148
MARK WARDLAW
COUtttp Of îlH IBit^Q
Direetor
PLANNING &DEVELOPMENT SERVICES
DARREN GRETLER
Assistant Direetor
5510 OVERLAND AVENUE, SUITE 310, SAN DIEGO, CALIFORNIA 92123
INFORMATION (058) 694-2960
TOLL FREE (8C0J411-0017
www.sdcountY.ca.goWpd»
July 30, 2013
John Rydzik, Chief
Division of Environmental, Cultural Resource Management and Safety
Bureau of Indian Affairs, Pacific Region
2800 Cottage Way
SEIS JfiMUL GAMING PROJECT
Dear Mr. Rydzik:
Thank you for the opportunity to comment on the Notice of Intent to Prepare a
Supplemental Environmental Impact Statement (SIES) for the proposed Gaming
Management Contract between the Jamul Indian Village (Jamul) and San Diego
Gaming Ventures, LLC (SDGV) pursuant to the Indian Gaming Regulatory Act.
Understanding that the formal comment period ended on July 8, 2013, the County of
San Diego (County) offers these comments on the process moving forward as required
by the National Environmental Quality Act (NEPA) and the National Indian Gaming
Commission (NIGC) requirements.
It is our understanding that the SEIS being prepared is based upon the 2002
Environmental Impact Statement (EIS) for the Jamul proposal that included a larger
project, a hotel and a Fee To Trust Application through the Bureau of Indian Affairs.
The County requests that a complete environmental analysis of impacts be conducted
as a part of the SEIS process. The County acknowledges that Jamul has conducted an
Environmental Evaluation pursuant to their Indian Gaming Compact with the State of
California, and that this new Gaming Management Contract, and revised project, will
require significant revisions to the previous SEIS that evaluates the full spectrum of
impacts as required by NEPA and indicated by the Environmental Evaluation.
ER0149
Case 2:13-cv-01920-KJM-KJN Document 60-2 Filed 01/02/15 Page 15of 19
John Rydzik
page 2
July 30| 2013
The County of San Diego has requested a copy of the Gaming Management Contract
from the NIGC pursuant to a Freedom of Information Act request (FOIA). This request
has not been fulfilled. Therefore, the County will withhold formal comments until after
receiving the Gaming Management Contract and during the SEIS public review period.
Based on our conversations with your staff, that comment period will happen sometime
in the future.
Thank you for the extended opportunity to provide formal comments on how the County
ofSan Diego would like to remain engaged in this process. If you have any questions,
or rf the County of San Diego can be of assistance, please contact Eric Lardy, CAO
Staff Officer at eric.lardv(5)sdcountv.ca.gov or 619-531-6267.
Sincerely,
<£>DARREN GRETLER, Assistant Director
Planning & Development Services
cc:
Justin Crumley, Deputy County Counsel
Eric Lardy, County Deputy Chief Administrative Office
ER0150
EXHIBIT E
ER0151
Jamul Indian Village and Penn National Gaming Announce Completion of $36 Million Si... Page 1of 3
Jamul Indian Village and Penn National
Gaming Announce Completion of $36
Hollywood Casino Jamul-San Diego
December 17,2014 http://www.businesswire.com
SAN DIEGO &WYOMISSING, Pa.-(BUSINESS WIREWamul IndianVillage of California
("JIV") and a whollyownedsubsidiary of Penn National Gaming (NASDAQ:PENN) ("Penn National
Gaming0), today celebrated the completion ofthe $36 million siteexcavation phase for the proposed
$360 million Hollywood Casino Jamul-San Diego on JIVs reservation in Jamul, California,
approximately 20 miles east ofdowntown San Diego.
"We remain committed to working constructively with theCounty on an intergovernmental
agreement and with state,county,andlocal public agencies to minimize off-reservation impacts0
JIV and Penn National Gamingbeganthe removal of morethan 452,000 tons ofrock and soil from
the construction site in February andit wasrecycled for usethroughout the region. The process
required approximately 85,000 shift hours by construction workers to complete the excavation.
Construction of the foundation hasbegunforthe casino andthe enclosed belowgrade parking
structure, which will offer more than 1,800 spaces.
"Today is another important milestone on ourpath to economic selfsufficiency," saidRaymond
Hunter, Chairman ofthe Jamul IndianVillage of California. "I am proud to be standingon the
foundation of an economic enginethat willultimately generate highqualityeducation, healthcare,
and sufficient housing for our tribal members.0
Hollywood Casino Jamul-San Diego, projected to openin 2016, is expectedto includea three-story
gaming and entertainment facility of approximately 200,000 squarefeet, featuring over 1,700
slot machines, 50 live table games,multiplerestaurants, barsand lounges. The exteriorwill feature
earthtones and downcastlightingto integrate with the surrounding area, while the interiorwill
blendtastefulbut glamorous elementsfrom Hollywood's Golden Era. The project is expectedto
createapproximately 2,500 construction and permanent jobs, with up to 90% of the permanent jobs
going to citizens in Jamul and surrounding communities.
Theproject includes state-of-the-art water reclamation treatment andreuse technology to conserve
resourcesand improve groundwater quality. JIV will contribute to funding for
fire protection services for the area and have committed millions ofdollars to benefit San Diego
County, including $15million for traffic mitigationand safetyimprovements to SR 94 and ancillary
roads.
"Weremain committed to working constructively with the County on an intergovernmental
agreement and with state, county, and localpublic agenciesto minimize off-reservation impacts,0
said Hunter. "We also look forward to generating new employment opportunities for area residents
and new revenue for local and state government, and charitable causes in Jamul and surrounding
communities.0
http://www.standur^.org/uib^
12/27/2014
ER 0152
Jamul Indian Village and Penn National Gaming Announce Completion of $36Million Si... Page 2 of3
About Jamul Indian Village ofCalifornia (JIV)
The Kumeyaay Nation ofSouthern California can betraced back 12,000 years with first European
contact occurring at San Diego Bayin 1524. Jamul IndianVillage of California, one of 13bands of
the Kumeyaay Nation federally recognized asa sovereign nation, traces its rootsto these natives.
Jamul Indian Village ofCalifornia strives to provide agreater quality of life forits people by
providing educational opportunities, health care andemployment opportunities today to openthe
doors of tomorrow. JamulIndian Village of California entered into a 1999 Tribal-State compact in
October 1999with then Governor Davis. Formoreinformationabout JIV, pleasevisit •
www.jamulindianvfllage.com.
About Penn National Gaming
Penn National Gaming, through its subsidiaries, owns, operates or hasownership interestsin
gaming and racing facilities with a focus on slotmachine entertainment The Companypresently
operates twenty-six facilities in seventeen jurisdictions, including Florida, Illinois, Indiana, Kansas,
Maine, Maryland, Massachusetts, Mississippi, Missouri, Nevada, New Jersey, New Mexico,Ohio,
Pennsylvania, Texas, West Virginia, and Ontario.At September 30,2014, Penn National Gaming's
operated facilities featured approximately 31,000 gaming machines, 760 table games and 3,100
hotel rooms.
Forward-Looking Statements for Penn National Gaming
This press releaseincludes "forward-looking statements" within the meaning ofthe Private
Securities Litigation Reform Act of1995 concerningthe construction, opening and operation of
Hollywood Casino Jamul. These statements include forward looking terminology such as "expects,"
"believes,""estimates," "expects," "intends," "may,""will,""should," or "anticipates" or other
variation ofthese or similar words, or by discussions of future events, strategies or risks and
uncertainties. Such forward looking statements are inherently subject to risks, uncertainties and
assumptions about the project, JIV and Penn National Gaming and its subsidiaries, and,
accordingly, any forward looking statements arequalifiedin their entirety by reference to the risk
factorsdescribed in Penn National Gaming's Annual Report on Form 10-Kfor the year ended
December 31,2013, subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K
as filed with the Securities and Exchange Commission. In addition to typical risks for large
development projectsofthis type, the following particular risksapply in this instance: particular
riskswith financing a projectofthis type, the complexitiesofconstructingon a relativelysmall land
parcel, the risks involved with sovereignimmunity, localopposition, current and potential future
litigation, and pendingregulatory and construction related approvals from a variety ofstate, local
and federal agencies. All subsequent written and oral forwardlooking statements attributable to
PennNational Gamingor personsacting on PennNational Gaming's behalf areexpresslyqualified
in their entiretyby the cautionary statementsincluded in this pressrelease. Penn National Gaming
undertakesno obligation to publicly updateor revise any forward looking statements contained or
incorporated by reference herein,except as required by law.
Contacts
MJE Marketing
Marlee J.Ehrenfeld, 619-682-3841
[email protected]
or
Penn National Gaming
http://ww.standupca.org/trite
12/27/2014
ER0153
ATTACHMENT 3
Execution Version
MANAGEMENT AGREEMENT
BETWEEN
THE JAMUL INDIAN VILLAGE OF CALIFORNIA
AND
SAN DIEGO GAMING VENTURES, LLC
DATED AS OF APRIL 3,2013
0t3!91U»l&M2Ee7.2
ER 0053
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.
ARTICLE 2
COVENANTS
2.1
2.2
23
2.4
2.5
2.6
2.7
2.8
_|j
„
.......
...........
11
11
12
Business •'«*»•
Board.................
V«>».«..........»».............<«......<........,...............a.......M.,.M.(...........M.<Ma.M
.
n| J
• »*«»•••»••«
Compliancewith Legal Requirements
Non-Competition
.....................
............ 14
17
liXClUSIVC rCiiOfl •••••••••<••••.••••••..•••••...................,...............•...•.................,.........,.. 1o
Tribal Affiliates
.
........
..
.
............ 18
MANAGEMENT OF THE GAMING FACILITY...
18
Manager's Authorityand Responsibility: Matters Requiring Approval.............. 18
Duties of Manager.
:
. ......... 22
Other Duties ofManager
............ 24
ARTICLE 4
4.1
_
EngagementofManager—
Effective Date: Term: Renewal Terms
Status of Property
ARTICLE 3
3.1
32
3,3
.-.1
PERSONNEL AND VENDORS.
,26
Manager's Responsibility
.
.......—................26
4.2
43
4.4
4.5
4.6
4.7
4.8
4.9
4.10
Manager Employees
«
—.....................
...........27
OIT-Sltc Employees
.
~.27
No Manager Wages or Salaries................................................................^-........ 27
Employment Suitability
«
.
28
Third-Party Consultants.........
.
28
Tribal Regulator)' Costs
............ 28
Indian Preference, Recruiting and Training
.......
..........................29
Preference in Contracting.
..........—.........—.—..........~....~...««.29
PRE-OPENING BUDGET; OPERATING BUDGET AND ANNUAL
ARTICLE 5
PLAN
5.1
52
53
5.4
5.5
5.6
5.7
5.8
5.9
5.10
Pre-Opening Program
Operating Budget and Annual Plan
Operating Capital..
—.
Capital Budgets
Capital Replacements
...
Capital Replacement Reserve
„.........*................«
.....
.
.
.
30
—.—~.—31
...—•.—•—•
32
32
—.......33
33
Periodic Contributions toCapital Replacement Reserve Account....
Banking and Bank Accounts
Accounting Services
..........
30
33
..........
........33
• .««..«.«.....35
.. .....
•«♦•
Agreed Ceiling for Repayment ofDevelopment and Construction Costs........... 36
OI3|9I\DOl«V641<Q7J»
ER 0054
TABLE OF CONTENTS
(continued)
Page
LIENS
ARTICLE 6
ARTICLE 7
36
MANAGEMENT FEE, REIMBURSEMENTS. DISBURSEMENTS,
AND OTI1ER PAYMENTS
7.1
12
7.3
7.4
7.5
7.6
Management Fee
Disbursements
...
........
Payment or Fees and Tribe Disbursement
.
...............
........... 37
........................37
............................. 37
Operative Dates
Guaranteed Monthly Payment; Alternative Monthly Payment
38
38
Payment of Net Revenues
38
..................................
TRADE NAMES, TRADEMARKS. AND SERVICE MARKS
ARTICLE 8
8.1
8.2
37
Gaming Facility Name
.
..............
..
39
............................
..........39
83
License Fee
8.4
Litigation Involving System Marks .....................................................................40
TAXES.
ARTICLE 9
9.1
9.2
......................................................... 39
.40
State and Local Taxes.......
TribalTnxcs
ARTICLE 10
.,
CONFIDENTIAL AND PROPRIETARY INFORMATION
10.1
Confidential Information
10.2
Manager's Proprietary Information
........41
11.1
11.2
113
11.4
Noninterference in Tribal Affairs
11.5
11.6
No Pre-Existing Contracts
..................42
43
.—.......43
Prohibition of Payments to Members ofTribal Government.....................
Prohibition of Itiring Members ofTribal Government....
.
......
Prohibition ofFinancial Interest......................................
....
43
..43
.............. 43
43
Disclaimer ofWarranties
ARTICLE 12
12.4
12.5
41
WARRANTIES; DISCLAIMER
ARTICLE II
12.1
123
123
......... 40
40
•—— 43
DEFAULT: GROUNDS FOR TERMINATION
44
Default
Voluntary Termination......
-44
...........................................—..45
Tribe's Right toTerminate Agreement
Manager's Right toTerminate Agreement
.
Effect ofTerminniion
ARTICLE 13
omvnon.9VM2827:
....
.............
45
—46
......46
RENEWAL AND TRANSITION..
..50
-ii-
ER 0055
Case2:13-cv-01920-KJM-KJN Document 67-2 Filed 01/23/15 Page 5 of43
TABLE OF CONTENTS
(continued)
Page
13.1
Intent to Negotiate New Agreement...........
133
i-mploymcnt Solicitation Restriction Upon Termination
133 Transition Plan
ARTICLE 14
14.1
14.2
143
14.4
................
.
........»..„M.. 50
.ZZZ.ZZZZZ50
51
CONSENTS ANDAPPROVALS
Tribe or Tribal Council
Business Board
Tribal Affiliate
Manager
ARTICLE 15
51
............... 51
..........51
..
Mm 52
...........................................
52
M.
.
INDEMNIFICATION AND INSURANCE
52
15.1
15.2
Manager's Indemnification Obligations
Tribe's Indemnification Obligations...................
.... .......
,.:^....«. 52
...........
—...........—. 53
15.3
15.4
15.5
15.6
Property Insurance
Liability Insurance/Other Coverages .
Insurance Standards and Requirements
Manager Insurance
15.7
Damage. Destruction orCondemnation ofthe Gaming Facility
..
..... 54
.........54
...... 55
..............
.
„........M...........^~..„.. 56
................... 56
ARTICLE 16
RECORDATION
.
57
ARTICLE 17
NO PRESENT LIEN: NO JOINT VENTURE
58
ARTICLE 18
DISPUTE RESOLUTION
58
18.1
18.2
183
Disputes with Patrons
^....... 58
Disputes Betweenthe Tribe andthe Manager..................................................... 58
Governing Law/Jurisdiction.
.
...........................—.....—59
18.4
18.5
Waiver ofSovereign Immunity
Waiver ofSubrogation
ARTICLE 19
.
61
...........— 62
PARTIES IN INTEREST—
62
19.1
Payment of Fees; Background Investigations...
....—~..—..............—.... 62
19.2
Removal Divestiture
~.......
ARTICLE 20
63
GENERAL PROVISIONS
63
20.1
Situs ofthe Contracts
20.2
No Third Party Rights........
63
203
PublicStatements
20.4
20.5
20.6
Recoupment and Reimbursement
Enforceability
Interpretation.....
w.......
...............63
64
20.7 Terms and Usage Generally
0I319IV&I91M2827.2
...................—.
~.
«...
64
...........64
—•••——•—.~..~64
—....—•
•64
.jj...
ER 0056
Case 2:13-cv-01920-KJM-KJN Document 67-2 Filed 01/23/15 Page6 of 43
TABLE OF CONTENTS
(continued)
Page
20.8
20.9
Estoppel Certificate
Notice
.
20.10 No Waiver
20.11
20.12
20.13
20.14
Successors and Assigns
Permitted Assignment....
Severability
Exhibits and Schedules
........
.
™ 66
66
.....WW...^....„.....M. 66
66
......—...........w.
„
. 67
20.15 Remedies
........67
20.16 Limitation of I.lability
20.17 Entire Agreement
..
.
«.
20.18 Further Assurances
20.19 Time is ofthe Essence
OI319IU»l9VM3Ql2
65
65
.....
.
„
.
.
.
67
.68
...... 68
.......... 68
-iv-
ER 0057
Case 2.13-CV-01920-KJM-KJN Document 67-2 Filed 01/23/15 Page 7 of43
Execution Version
EXHIBITS AND SCHEDULES
Exhibit A-1:
Legal description ofthe Property
Exhibit A-2:
Legal description ofthe Adjacent Property
Exhibit B:
Gaming Ordinance
Exhibit C:
Lieen.se Agreement
Exhibit D:
Authorization and Limited WaiverResolution
Schedule 133:
Covered Employees
OI3I9I\OOI9\642827J»
ER0058
Execution Version
AlANAGPlKNTAGREEMirvr
Vnril ,,2013,
3" r by and K
AORRKMKN
f (the êittenQ
been entered aIWenlly
into as of
Apri
between 11-.
1. JAMUL INDIAN
VILLAGE OFho<CALIFORNIA,
recognized lnd,nn Into (the -Tribe", and SAN DIEGO GAMING VRKTUMS LLC a
Delaware limited huliilitv company (Uic •,Manguern).
KIXIIAI.S
A.
The Tribe is a federally recognised Indian Tribe enjoying a uovemracaMo-
•ovemnM îmionship witi, the United Stales and possessing certain inherent L» orseip.
pvemmem 1he Tribe is ihe beneficial ov^rofapproxiniatcly six (6) acres of reservation land
located within the exienor boundaries ofthe State of California held bv the United States of
America „, trust lor the Tribe fihe TfrpwfrT. more particularly described in the attached
hxnibjt ,\-I. wn.cn ts heivby incorporated by this edbtnec. 'Ihe Tribe exercises jurisdiction
over the Iroperty pursuant to its powers ofsclf-gmernmcnl and consistem with ihe resolutions
ami ordinances ul ihe Tribe.
\i. The Tribe |K dedicated, through lire operation of aGamine Facility, to (i) provide
employment and improve the social, economic, education and health needs of its member-; (ii)
increase the revenues ofthe Tribe, and (iii) enhance the Tribe's economic scif-suffictcncv and
sell-determination.
C.
'Ihe Tribe is seeking expertise Tor the management and operation of the Gaming
Facility. *I*he Manager has represented to the Tribe that the Manager and its Affiliates have Ihe
knowledge, experience and managerial capacity to manage a Claming Facility on the Property
and thai (he Manager is willing and able to provide such experience, expertise and instruction.
D.
The Tribe desires to gram Ihe Manager access to and the exclusive right and
h.
This Agreement is entered into pursuant to the IGRA. Ail Claming conducted al
obligation to manage, operate and maintain the Gaming Facility "~
the Gaming Facility shall comply with all Legal Requirements.
ARTICLE I
DEFINITIONS
Except as may be otherwise defined herein, capitalized terms shall have the meanings set
forth in this Article I.
"AAA" means the American Arbitration Association.
••Adjacent Property" has the meaning set forth in .Section 3.2(e). and is more fully
described in Hxhibit A-2, attached hereto.
6l3l9|UX»iWvl2fi27.2
ER0059
ATTACHMENT 4
ô*al /*
COW
July 1,2013
By First Class Mail
Raymond Hunter,Chairman
Jamul Indian Village
PO Box 612
Jamul, CA 91935
Re: Jamul IndianVillage amendedGaming Ordinance
Dear Chairman Hunter.
This letterresponds to yourrequest for theNational Indian GamingCommission(NIGC)
to review andapprovethe Jamul Indian VillageGaming Ordinance 2013-05 submitted on April
5,2013.Hie amended ordinance wasapproved by Resolution No. 2013-07, dated April 3,2013.
Uponapproval by the NIGC Chair, the Resolution repeals the tribal gamingordinance originally
approved by theNIGCChair on January 4,1994.
On May 14,2013, NIGC Office ofthe General Counsel staffprovidedthe Tribe with
suggested changes to the ordinance for it to comply withthe Indian Gaming Regulatory Act
(IGRA) andNIGCregulations, including therecently revised parts 556and558. On June 14,
2013,the Tribe re-submittedan amended gaming ordinance thatwas revised in accordance with
the suggested changes.
Thisletter constitutes approval oftheamended gaming ordinance asit is consistent with
therequirements ofIGRAand NIGC regulations. If you have anyquestions, please feel free to
contact StaffAttorney ArmandoAcostaat202-632-7003.
Sincerely,
Trade L. Stevens
Chairwoman
NAnCNAlKEADQUAHTCRS 1441 ISLNW.Suite9100.Wasttngen. DC20005 Til: 202.632.7003 Fax:202.632.7066 WWWJKCCCW
REGtOHALOiHCES RMfend, OR; Sacramento. CA; Phoenbc. AZ;St P&d,MN;TWsa,OK
ER 0072
Case 2:13-cv-01920-KJM:KJN Document 67-4 Filed 01/23/15 Page 3 of46
JAMUL INDIAN
VILLAGE
GAMING ORDINANCE
ORDINANCE
2013-05
ER 0073
Case 2:13-cv-01920-KJM-KJN Document 67-4 Filed 01/23/15 Page4 of 46
TABLE OF CONTENTS
Page
1.
2.
Purpose, Policyand Sole Proprietary Interest
1.1
Purpose and Policy..,
12
Sole Proprietary Interest
13
Name......
GamingAuthorization...........
.........
................
.........
.
.....
2.1
Jurisdiction
22
Class II and Class IIIAuthorization...
23
Unauthorized or Unapproved Gaming.
Definitions.........
4.
Executive Committee: Powers and Duties
.
...........
.....
........ ....
.....
.............
..............
.
................
.....
.
4.1
DelegationofDuties....................................................
42
Registered Agent.
.
......
...
.................
3.
5.
.
.
....
..
7
.......7
....................
.
..7
Jamul Gaming Commission
7
5.1
Establishment and Purpose
.................
...
7
52
Duration andAttributes.
53
Sovereign Immunity ofthe Tribe
5.4
Assetsofthe Commission
5.5
Number ofCommissioners; Qualifications; BackgroundInvestigation.
5.6
Gaming Commission BackgroundInvestigation
8
5.7
Term ofOffice.
9
5.8
Bylaws.
9
5.9
Removal.
9
5.10
Vacancies.
5.11
Duties, Powers and Responsibilities.
5.12
Meetings.
5.13
Full-timeor Part-time Exclusivity.
11
5.14
ReportingRequirements.
12
5.15
Compensation and AnnualBudget.
12
5.16
Gaming CommissionStaff........................
5.17
Ethics.
7
.
.
7
8
..
...........................
..........
......
....
8
.9
..................
10
......11
..........................................—.12
12
_j„
3518116J
ER 0074
TABLE OF CONTENTS
(continued)
Page
6.
7.
8.
9.
Executive Director.
13
6.1
Qualifications.
13
62
Authority ofExecutiveDirector.
14
Gaming Personnel
.
.
.
7.1
Age.
12
Compact and Employment Laws......
.
......
15
........
.
.
........15
Files and Records to be Maintained bythe Commission; Confidentiality ofInformation.. 15
8.1
ConfidentialityofDocuments.
15
8.2
Scope ofConfidentiality.
15
Gaming Surveillance: Powers, Duties and Limitations
16
9.1
Purpose
16
92
Responsibilities.
16
9.3
Surveillance Records.
.
..
.
.
.................
10. Gaming Security: Powers, Dutiesand Limitations...................
11.
15
...
............... 16
..
. 16
10.1
Purpose
16
10.2
Investigations.
17
103
Reports.
17
10.4
Responsibilities.
:
17
Licensing ofPrimary Management Officials, Key Employees and Gaming Employees.... 17
11.1
Summary ofLicensing Principles........
17
112
Licenses.
113
Current and Valid Gaming License Required...
11.4
Application Procedurefor Gaming License.
113
Non-Key Gaming Employee Licensing.
19
11.6
Qualifications.
20
11.7
Temporary Licensure
2\
11.8
Relianceon PreviouslyIssuedLicense
11.9
Investigation.
11.10
License Issuance; Renewals.......
11.11
Badge
„
17
.....................17
..17
......
2\
21
.
22
23
_jj_
35181162
ER 0075
TABLE OF CONTENTS
(continued)
Page
12.
13.
14.
11.12
Suspension or RevocationofLicense.........................
............................23
11.13
Temporary Suspension ofan Individual's License........
11.14
Notice to Executive Committee..
11.15
RecordofProceedings.
11.16
Appeals.
11.17
Appealsfor Major Gaming Resource Suppliers and FinancialSources.......
11.18
Appealsfor Managerand Manager's Affiliates.
11.19
Arbitration
11.20
Reconsideration.
. ...........................25
..........
.
26
.........
26
26
.
.
..26
...........27
.
2%
..
Gaming Facility License
.
.
.
...
29
...................29
12.1
Compliancewith ApplicableStandards..
. ...............
.........29
12.2
LicensingRequirement...
123
Threshold Licensing Criteria......
29
12.4
Display ofGamingLicense
29
12.5
License Duration
12.6
Submission ofLicense to NIGC andState Gaming Agency.
30
12.7
Notice ofIllegal GamingActivity.
30
.......
.................
29
...29
Financial Source License
...30
13.1
Licensing Process.
30
13.2
Exemptions.
30
133
Registrationfor HoldersofTribalBonds.
30
13.4
Submission ofLicenseto State Gaming Agency.
31
13.5
Application Formand Procedures.
31
13.6
FinancialSourceApplicationFormsand Procedures—Individual............
13.7
Relianceon PreviouslyIssuedLicense
13.8
Duration; Renewal Process.
13.9
Dispute Resolution.
.
32
.—...........32
33
-
Gaming Resource Supplier License
.............
33
33
14.1
Licensing Process
33
14.2
Submission ofLicense to State GamingAgency.
33
-Hi-
3518116.2
ER 0076
TABLE OF CONTENTS
(continued)
Page
15.
143
Application Forms and Procedures.
14.4
Exemptions.. ...................
14.5
ManagerLicensingProcess........
14.6
Reliance on Previously Issued License.......
14.7
Duration; Renewal Process.
14.8
Dispute Resolution.
17.
18.
...
.
........
..33
...
..34
.
. .
.
34
.. ....
.....................
.
......
.
.............. .34
..
34
..............
...........35
Fees
15.1
16.
..
35
License andApplication andRenewal Fees.
..............
...................
35
Entities
35
16.1
LicensingCriteria.
16.2
Institutional Investor.
......
....
........
.
..
Games
.
.
35
....36
.
36
17.1
Who May Not Play.
36
112
Patron Disputes.
36
Miscellaneous
36
18.1
Gaming Rules.
36
18.2
Use ofNet GamingRevenues......
37
18.3
Minimum Internal Control Standards.
37
18.4
Annual Audit.
37
18.5
Commission Right to Conduct Audits.
37
18.6
GamingDevice Technical Standards.
38
18.7
Exclusion or Ejection ofIndividuals.
38
18.8
Emergency Evacuation andPreparedness Plans.
38
18.9
Minors.
38
18.10
Severability.
38
18.11
Repeal.
38
18.12
Amendments..........
18.13
Effective Date
.
39
39
-iv-
35181162
ER 0077
Case 2.13-CV-01920-KJM-KJN Document 67-4 Filed 01/23/15 Page 8 of 46
1.
Purpose, Policy and Sole Proprietary Interest
1.1
Purpose and Policy The purpose of this Ordinance is to set forth the laws of the Tribe
regarding all Gaming Activities conducted on the Tribe's Indian Lands. The Ordinance is
intended to govern the Gaming Activities of all individuals, employees, consultants, business
entities, vendors, boards, committees, commissions and administrative review bodies on the
Tribe's Indian Lands. The purpose of this Ordinance is to ensure that the Gaming Activities
conducted on the Tribe's Indian Lands are conducted fairly and honestly, and that all internal
departments, enterprises, officials and employees oftheTribe work cooperatively to advance the
best interests of the Tribe in protecting its Gaming Activities as well as its Patrons. It is the
intent of the Tribe that this Gaming Ordinance and provisions within shall be interpreted in a
manner so asto complywith theterms oftheCompact, IGRA and applicable NIGC regulations.
\2
Sole Proprietary Interest. The Tribe shall have the sole proprietary interest in and
responsibility for the conduct of all Gaming Activities authorized by this Ordinance; provided,
however, that the Tribe may, in accordance with IGRA, enter into a management contract for
management ofall or part ofthe Gaming Operation.
13
2.
Name. This Ordinance shall be known astheJamul Indian VillageGaming Ordinance.
Gaming Authorization
2.1
Jurisdiction. This Ordinance is applicable to all Indian Lands under the jurisdiction of
the Tribe.
22
Class II and Class IIIAuthorization. Class II and Class III Gaming are each hereby
authorized on the Tribe's Indian Lands.
23
Unauthorized or Unapproved Gaming. Class II and Class III Gaming by any individual
ontheTribe's Indian Lands except as authorized pursuant to thisOrdinance is prohibited.
3.
Definitions
This Section shall govern the definitions ofwords and phrases usedin this Ordinance. All words or
phrases notdefined inthisSection are used intheir ordinary and everyday sense.
3.1
Affiliate means, with respect to any specified Person, any other Person who directly or
indirectly, through one or more intermediaries, controls, is or becomes controlled by, or is or
comes under common control with the specified Person. For purposes of this definition,
"control"meansthe possession, direct or indirect, ofthe powerto direct or causethe direction of
the management and policies ofa Person, whether through the ownership ofvoting securities or
other interests, by contract,governmental authority or otherwise.
3.2
Applicant means any Person filingan Application for a Gaming License, Gaming Facility
License, Financial Source License or Supplier License pursuant to Sections 11,12, 13, and 14 of
this Ordinance.
3J'
Application means any application for a Gaming License, Gaming Facility License,
Financial Source License, or SupplierLicense.
3518116J
ER 0078
325
Gaming Resources means any goods or services provided or used in connection with
Gaming Activities, whether exclusively or otherwise, including, but not limited to, equipment,
furniture, gambling devices and ancillary equipment, implements of Gaming Activities such as
playing cards and dice, furniture designed primarily for Gaming Activities, maintenance or
security equipment and services, and Class III Gaming consulting services. "Gaming Resources"
does not include professional accounting and legal services.
326 Gaming Resource Supplier means any Person who, directly or indirectly, manufactures,
distributes, supplies, vends, leases, or otherwise purveys Gaming Resources to the Gaming
Operation orGaming Facility, provided that the definition ofGaming Resource Supplier does not
include a purveyor of equipment or furniture that is not specifically designed for, and is
distributed generally for use other than in connection with, Gaming Activities, if the purveyor is
not otherwise a Gaming Resource Supplier, the compensation received by the purveyor is not
grossly disproportionate to the value of the goods or services provided, and the purveyor is not
otherwise a person whoexercises a significant influence over the Gambling Operation.
3.27 Incident means an accident, event or omission involving any individual on the premises
of the Gaming Facility which results in injury, damage to property, loss of revenue or any
unusual interruption in the conduct of any Game.
3.28 Indian Gaming Regulatory Act or IGRA means Public Law 100- 497, 102 Stat 2426, 25
U.S.C. § 2701, et seq.t as amended.
—t» 3.29
Indian Lands means all lands within the exterior boundaries of the reservation of the
Tribe and any lands title to which is either held in trust by the United States for the benefit ofthe
Tribe or individual or held by the Tribe or individual subject to restriction by the United States
against alienation and over which the Tribe exercises governmental power.
3.30
Institutional Investormeans any:
(a)
bank as defined in Section 3(a)(6) of the Federal Securities ExchangeAct;
(b)
banking, chartered, or licensed lending institution;
(c)
insurance company as defined in Section 2(a)(17) of the Investment Company Act of
1940, as amended;
(d)
chartered or licensed life insurance company or property and casualty insurance
company;
(e)
investment company registered under Section 8 of the Investment Company Act of
1940, as amended;
(f)
investment advisor registered under Section 203 of the Investment Advisors Act of
1940, as amended;
(g)
collective trust funds as defined in Section 3(c)(l I) of the Investment Company Act
of 1940, as amended;
(h)
closed end investment trust;
3518116.3
ER 0079
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the forgoing attachments in
support of reply in support of Appellants' motion for urgent relief with the Clerk
ofthe Court for the United States Court of Appeals for the Ninth Circuit by using
the appellate CM/ECF system on June 29,2015.
I certify that Counsel for all the parties in this case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF system.
Dated: June 29, 2015.
Respectfully submitted,
/s/Kenneth R. Williams
KENNETH R. WILLIAMS

JAMUL ACTION COMMITTEE, JAMUL COMMUNITY CHURCH

Transcription

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