Judge Issues Ruling Aiding SUFC in Ongoing Battle With Wilton Rancheria's Proposed Elk Grove Casino

Raymond Hitchcock (center), Chairman of the Wilton Rancheria during the February 14, 2017 ceremony marking
the purchase of 36-acres from the Howard Hughes Company for the site of a proposed $500 million gaming facility
in Elk Grove. Flanking Hitchcock is Assemblymember Jim Cooper D - Elk Grove (left), and former Elk Grove
Mayor Gary Davis. 

June 1, 2018 | 

In a ruling issued on Wednesday, May 30, a U.S. District Judge in Washington D.C. said a gaming watchdog group was entitled to several documents they had been previously denied in their ongoing legal battle against a proposed $500 million casino in Elk Grove, California.

Ruling on a discovery motion filed on April 16 by Stand Up For California and three Elk Grove Plaintiffs, Judge Trevor McFadden agreed that the U.S. Department of Interior had withheld certain administrative information. Lawyers for the plaintiffs argued that the government had omitted document used in making a draft environmental impact statement, and withheld or redacted information from several emails.  

While McFadden did not grant the entire motion, he narrowly ruled that they can review the defendant's so-called privilege log to determine if the government had withheld information from the administrative record.  A privilege log is "a document that describes documents or other items withheld from production in a civil lawsuit under a claim that the documents are 'privileged' from disclosure due to the attorney-client privilege, work product doctrine, joint defense doctrine, or some other privilege."   

The ruling stated "Though the Plaintiffs fail to make a showing to warrant supplementing the administrative record, they have made a prima facie showing of bad faith to warrant limited discovery—here, the production of a privilege log to facilitate review of the Defendants’ assertion of privilege. Courts in this District routinely deny requests for privilege logs of documents withheld from the record absent a showing of bad faith or improper behavior...And though the production of a privilege log in an APA case is 'the exception, not the rule,' the unique and likely rare combination of circumstances leading to the January 19, 2017 Record of Decision warrant it in this case."

Although McFadden denied other portions of the April 16 motion, he granted access to the privilege log reasoning "that the combination of facts marshalled by the Plaintiffs present a prima facie case of bad faith to warrant production of a privilege log. See Air Transp. Ass’n of Am., Inc. v. Nat’l Mediation Bd., 663 F.3d 476, 487-88 (D.C. Cir. 2011). Accordingly, the Plaintiffs’ motion to supplement the administrative record will [be]denied and their motion for discovery will be granted." 

The May 30 decision favoring SUFC comes after a series of rulings for the Wilton Rancheria. SUFC had previously argued that January 2017 decision during the waning hours of the Obama administration to place the land in federal trust had been made in violation of the Federal Vacancies Reform Act of 1998.  

In a statement issued by Wilton Rancheria, Chairman Raymond "Chuckie" Hitchcock accused SUFC as being an obstructionist group representing competing interests. He also expressed confidence that the remaining legal issues will be resolved to the satisfaction of the tribe, and Las Vegas-based Boyd Gaming who is financing the venture.  

“Stand Up for California is a front for local card rooms and other gaming interests. The federal court in Washington, D.C., has already ruled against them and in favor of the federal government and Wilton Rancheria on claims concerning the decision to place land into federal trust for the Tribe," Hitchcock said. "Wilton Rancheria is confident that the federal court will again rule in our favor on the remaining claims."

Interestingly, in his statement, Hitchcock also addressed environmental issues saying "it was clear the most viable and least impactful site was in Elk Grove." In their filing, SUFC had alleged that comments on the identifiable water supply for the casino submitted during the environmental impact statement public comment period had not been addressed.

Speaking on behalf of SUFC and the three plaintiffs, Cheryl Schmitt said: "We are gratified with the courts ruling and grateful the court recognized the improper conduct the Department of the Interior engaged in."