September 12, 2003

On Wednesday September 10th, O.W.L. Foundation attorney Paeter Garcia informed the Rohnert Park City Council that agreements made before NEPA requirements are met would be premature. Garcia's statement appears below.

I. Overview

· The City should not put the proverbial cart before the horse. Proper CEQA review for any municipal services agreement cannot be conducted until after the fate and scope of the casino project are determined pursuant to required federal environmental review and approvals.

II. The Proposed Casino Project Requires Federal Environmental Review And Approvals

· We understand that the entire casino "proposal" hinges on the project being located on federally designated reservation land. However, the process of designating land as a tribal reservation involves an application process to the Feds, who make the final call.

· We understand that the Tribe has not submitted such an application and that the Feds have not made any such determination of whether to designate the proposed casino site as tribal reservation land.

· Also important, when a federal agency makes a discretionary decision that may "significantly affect the human environment," the agency must comply with the National Environmental Policy Act (NEPA).

· Like the California Environmental Quality Act (CEQA), NEPA provides opportunity for public involvement at various stages of the environmental review process, particularly when the proposed project is controversial.

· At a minimum, given the factors of (1) a critically overdrafted groundwater basin, (2) countywide water scarcity issues, (3) the current Williamson Act designation of the proposed casino site, and (4) endangered species issues at the proposed casino site, the federal agency's decision to designate the land in question as a tribal reservation (knowing that the Graton Tribe intends to construct a casino and related facilities on the site) would have the type of impacts on the human environment that requires the Feds to engage in NEPA review.

· Results of the NEPA review would serve to (1) guide the determination of whether to designate the site as reservation land and (2) if such a designation was made, help identify the permissible scope of the casino project in light of the environmental concerns surrounding the affected land.

· Therefore, as set forth in greater detail below, it would be far premature for the City to negotiate a municipal services agreement with the Graton Tribe, or for the City to engage the required CEQA review for that agreement, until after the Feds conduct their own NEPA review, determine whether the proposed casino site can be designated as tribal reservation land, and identify the scope of services that the casino may actually need from the City, if any.

III. A Municipal Services Agreement Between The City And The Graton Tribe Is Premature And Any Such Agreement Would Require CEQA Review

· As a general rule in California, when a public agency makes a discretionary decision that has a potential for resulting in a direct physical change or a reasonably foreseeable indirect physical change to the environment, the agency must comply with CEQA.

· The purpose and policy of CEQA is for public agencies to make informed decisions with an opportunity for meaningful public review and participation when an agency approval may result in environmental impacts.

· In this case, CEQA would apply to a municipal services agreement between the City and the Graton Tribe because an agreement to provide municipal services outside the City's boundaries requires a discretionary decision by the City Council that such services are available to the Tribe (i.e., surplus to the needs of City inhabitants) and because that decision would effectively enable the casino project to proceed in spite of its environmental impacts.

· However, that CEQA review cannot properly proceed until the Feds conduct NEPA review and determine whether to designate the proposed casino site as tribal reservation land, as discussed above.

· An identifiable "project" is the heart of CEQA. Here, the City Council's decision on whether to approve a municipal services agreement with the Graton Tribe would constitute the project subject to CEQA review. Clearly, the terms of any such agreement (scope of the project) cannot be identified until after the Feds make the threshold decision of whether the land in question will be designated as a tribal reservation.

· Similarly, the outcome of the federal NEPA review will reveal whether the tribal designation may have environmental impacts which, in turn, will affect the nature of any municipal services agreement or whether one would be appropriate at all.

· For instance, if NEPA review concludes that a tribal land designation would have a significant effect on groundwater supplies, the Feds could limit the tribal water rights associated with the land. In that case, the City would have to determine whether it had available water supplies to serve the casino. In light of the Eel River decision, that type of determination by the City would have profound impacts on the scope of the CEQA review required for the municipal services agreement.

· Again, the City cannot properly conduct the required CEQA review until after the reservation is approved by the Feds and until the actual scope of municipal services to be provided by the City can be identified.

IV. Serious Implications Could Arise From The Creation Of "Federally Reserved Water Rights" In The Local Groundwater Basin

· Under federal case law, when a tribal reservation is established, "federally reserved water rights" attach to the reservation land to support the Tribe. These water rights have powerful priority and are protectable against injury.

· Moreover, pursuant to the trust relationship between the federal government and tribal sovereigns, the Feds have an affirmative duty to protect the viability of such reserved water rights on behalf of the tribes. Indeed, beyond bringing their own lawsuits in state or federal court to enjoin injury to their federally reserved water rights, tribal nations can bring suit against the Feds for failing to protect those rights. Examples exist statewide of multi-million dollar settlements in favor of tribal claims that injury has been caused to their federally reserved water rights.

· Serious implications could arise from the designation of a tribal reservation and the creation of federally reserved water rights in the local groundwater basin. In light of the critical groundwater overdraft (and overall condition of water scarcity) that already exists locally and throughout other portions of the County, it would appear that any federally reserved water rights conferred upon the Graton Tribe would immediately be subject to injury.

· How long would it take before the Graton Tribe began experiencing the same issues in extracting groundwater that other local residents have already faced? Just as the City's appropriative groundwater rights are inferior to the water rights of overlying landowners and prior appropriators, a federally reserved water right would appear to trump the City's extraction rights and expose the City to liability.

· The City's open invitation for the creation of federally reserved water rights in the local, overdrafted groundwater basin is an ill-advised maneuver that contravenes the water-related interests of the City, its residents, and surrounding Sonoma County residents.

V. Conclusion

· In light of the recent Eel River decision, all City decisions that directly or indirectly affect water supplies, or that have other growth-inducing impacts, either within or without City boundaries, should be handled in strict compliance with CEQA and through extensive public participation. With specific regard to the proposed casino project, any agreement by the City to provide municipal services would be subject to CEQA review. However, that review process cannot properly proceed unless and until the necessary environmental review and approvals are provided by the appropriate federal agencies in connection with an application by the Graton Tribe to designate the proposed casino site as a tribal reservation to be held in trust by the federal government.