BIA Appeal Filed Over Wilton Rancheria Notice of Decision, Elk Grove Casino Development Agreement Questions Linger

February 21, 2017 |

UPDATED February 23 - See below

An appeal regarding the recently announced decision to place the 36-acres purchased on behalf of the Wilton Rancheria into federal trust was filed today.

The appeal was filed with the United States Department of the Interior Office of Hearing and Appeals, Interior Board of Indian Appeals in Washington D.C. The motion was filed by the law firm of Perkins Coi on behalf of the Indian gaming watchdog group Stand Up For California.

Among other things, the appeal is based on the claim that because the parcel is encumbered by a development agreement, the land has been improperly placed into trust. The development agreement encumbrance remains on the parcel even though the Wilton Rancheria claims it is not a deterrent to their proposed $400 million casino resort that is being financed by Las Vegas-based Boyd Gaming.

The filing says "BIA cannot acquire the Elk Grove Site for use by Wilton as a casino because the lands do not qualify for gaming under the 'restored lands' exception and cannot qualify as 'Indian lands' under IGRA (Indian Gaming Regulatory Act) due to the restrictive covenants that run with the land."

The development agreement that remains on the parcel has been at the center of the discussion of the controversial project. The development agreement, which places use restrictions on the entire parcel, remains in effect for the 36-acres purchased from the Howard Hughes Company, as well as the balance of the parcel occupied by the unfinished Outlet Collection at Elk Grove shopping center. 

At their February 8 meeting, the Elk Grove City Council voted to reverse their October 2016 vote that removed the development agreement from the parcel. The City Council reserved their decision following a referendum that qualified for a special election seeking to rescind the October 2016 vote.  

Even though the development agreement remains in effect, the Tribe had a news conference on Tuesday, February 14 on their newly purchased land saying the project was moving full speed ahead. Wilton Rancheria Chairman Raymond "Chuckie" Hitchcock and casino proponents have downplayed the significance of the development agreement.

Among other arguments presented in the appeal the plaintiffs noted that when the notice of decision was rendered by Larry Roberts, Principal Deputy Assistant Secretary on the evening of January 19, 2017, he had done so contrary to the Vacancies Reform Act. Roberts was assigned to the position of January 1, and by statute, his authority lapsed on or about August 3, 2016, therefore, his decision is invalid. 

"There is no ambiguity as to the limits on Mr. Roberts authority. The ROD (record of decision) was not the final agency action" the appeal document states.

Along with this, the appeal claims there were numerous administrative mistakes made in the BIA's haste to file the ROD and their rush to place the land into federal trust in the waning hours of the Obama administration. Among those was the decision was not properly notified in the Federal Register or a newspaper of general circulation and placed the land into trust on February 10 before the 30 day appeal time had expired.

"Moreover, BIA violated its regulations, with full knowledge of Citizens' concerns regarding the very action and its effect on Citizens' rights, which are protected by the restrictive covenants running with the Elk Grove Site" the documents says.

Another challenged expressed by the plaintiffs is from the wording of the development agreement itself. The document says "It is inexplicable how the BIA determined that it could acquire title at all, given that Section 10.3 of the development agreement states, 'no assignment shall be effective until the City, by action of the City Council, approves the assignment.'" 

The appeal asserts the federal Environmental Impact Study, which was initially completed for a proposed 282-acre site in the City of Galt's sphere of influence is incomplete for the Elk Grove site. While the BIA held a public scoping meeting, it failed to conduct one in Elk Grove and the EIS did not consider things such as a proposed three-story parking structure.  

"The EIS is deficient for a variety of other reason, including, but not limited to, BIA's failure to provide adequate public notice and opportunity for public comment on the alternative selected,..."

As an example, the ROD, the appeal says, failed to consider public safety posed by the nearby Suburban Propane above- ground storage tanks, which were a target of domestic terrorist in 1999. "The ROD instead relies exclusively on an Environmental Impact Report issued in 2001" the filing notes.  

It is not known as of this posting time when a decision will be issued on the appeal.

UPDATE - Wilton Rancheria spokesperson Bob Magnuson issued the statement posted below. 

"The Interior Board of Indian Appeals is not even the appropriate forum for these claims. We know there are going to be nuisance lawsuits and that’s all this is. We know that Stand Up for California is being funded by Knighted Ventures, so you have card room interests suing the federal government to stop a project that will bring thousands jobs to Elk Grove and help the 700 members of Wilton Rancheria, which finally, after 58 years of struggle, is no longer a landless tribe. How pathetic is that?"