En Banc appellate court review sought in Elk Grove's Sky River Casino decision

In a petition filed on June 1, the casino watchdog group Stand Up For California is seeking an En Banc review of the decision paving the way for the construction of Sky River Casino in Elk Grove. 

The petition responds to the appellate ruling in favor of the U.S Dept. of Interior and Wilton Rancheria, who was challenged by SUFC. The lawsuit by SUFC sought to reverse the decision allowing the 36-acre Elk Grove parcel for the casino to be placed into federal trust, which is a requirement for tribal gaming facilities not located on traditional reservations or rancherias.

The challenge to the decision, which came in the waning hours of the Obama administration in January 2021, was that it violated the Federal Vacancy Reform Act of 1998. SUFC has lost each of the challenges initially filed in the U.S. District Court in Washington DC. 

The most recent decision favoring the casino was made in the United States Court of Appels For the District of Columbia. The decision was made by a two-judge panel, not the standard three-person panel, as the third justice who heard the oral arguments was Merrick Garland, who was subsequently appointed U. S. Attorney General and did not participate in the April decision.   

An En Blanc petition seeks to have the entire panel of judges hear arguments. Another U.S. Court of Appeals, the Fourth District in Richmond, Va., reports 0.3-percent of En Blanc requests are granted in their jurisdiction.   

In the petition filed by attorneys Jennifer A. MacLean and Benjamin S. Sharp of Perkins Coi argued "A two-judge panel of this Court issued an opinion that would permit agencies to act outside regulatory and statutory guiderails and, in doing so, sidestep their duty to 'turn square corners in dealing with the people.' See Dep’t of Homeland Security v. Regents of the Univ. of California, 140 S. Ct. 1891, 1909 (2020) (quoting St. Regis Paper Co. v. United States, 368 U.S. 208, 229 (1961) (Black, J., dissenting)). That decision, if upheld, would have 'unusually significant impact[s] on the work of the Circuit' and therefore 'warrants the institutional costs' of en banc review."

Among various arguments, MacLean and Sharp write the court's decision in favor of the tribe and U.S. Department of Interior can have far-reaching effects in the Washington DC District. "Whether the presumption of delegability applied to statutes should be extended to regulations. In ruling that it should, the panel established a new rule for the D.C. Circuit that overrides regulations that unambiguously allocate decisionmaking authority." 

If the petition is not granted, SUFC can appeal to the U.S. Supreme Court, but they are under no obligation to hear the matter. 

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