National Indian Gaming Commission
November 24, 2014
Page 5

the EIS can be finalized and a final record of decision can be made.? Simply
put, the short time period within which NIGC must take action on a proposed
management contract does not allow sufficient time for environmental review
under NEPA. "Determining that NEPA compliance is impossible due to a
statutory timing conflict is consistent with U.S. and California Supreme
Court precedent. :

For example, in Flint Ridge Development Co. v. Scenic Rivers Assn. of
Oklahoma (1976) 426 U.S. 776, the U.S. Supreme Court ruled that the short
time-frame within which the Department of Housing and Urban Development
is obligated to review certain reports submitted to it by property owners
wishing to market subdivided lands through interstate commerce made NEPA.
review impossible. There, the court stated that the proper inquiry was to
assume that a full EIS would be required and noted that when “a clear and
unavoidable conflict in statutory authority exists, NEPA must give way”
since “NEPA was not intended to repeal by implication any other statute. (Id.
at p. 788.) Similarly, the California Supreme Court recently used the same
rationale to hold that the California Environmental Quality Act (NEPA-like
state law) does not apply to a city’s adoption of a qualified voter initiative
approving a commercial supercenter project, in part, because the applicable
California Elections Code section does not mention CEQA and because it
would be impossible to complete CEQA review during the short time period
the City was mandated to act on the initiative under the Elections Code. (See
Tuolumne Jobs & Small Business Alliance v. The Superior Court of
Tuolumne County (2014) 59 Cal.4" 1029.)

For the above-stated reasons, on behalf of the Jamul Indian Village, I urge the
Commission to adopt a categorical exclusion from NEPA for the NIGC’s
casino management agreement approval process by either: (1) formally
acknowledging that the management contract approval process falls squarely
under the NIGC’s existing NEPA categorical exclusion for actions pertaining
to the regulation, monitoring, and oversight of Indian gaming activities (See
NIGC’s Protocol for Categorical Exclusions from NEPA effective May 22,
2012 [“Category 2 — Regulation, Monitoring and Oversight of Indian Gaming
Activities”].) or (2) amending NIGC’s list of activities categorically excluded

? While the federal Council on Environmental Quality (“CEQ”) noted in 1981 that it takes
“about 12 months for the completion of the entire EIS process” (See Forty Most Asked
Questions Concerning CEQA’s NEPA Regulations at http://energy.gov/sites/prod/files/G-
CEQ-40Questions.pdf), more modern observations show that the actual time required to
prepare an EIS is much, much longer. (See Piet and Carole deWitt, “How Long Does It Take
«To Prepare An Environmental Impact Statement?” 10 Envtl. Prac. 164 (2008) [finding an
average EIS preparation time of 3.4 years based on study of 2,095 EISs prepared by 53
different federal agencies]; Larson, Krieg ef a/., Federal Highway Administration,
“Evaluating the Performance of Environmental Streamlining: Development of a NEPA
Baseline for Measuring Continuous Performance,” (2000) [finding EISs take an average of
3.6 years}.)

infe@jamulndianvillage.cam:

6191660.4785
619.669.4817
P.0:B

Ox6.12
AS91935:

} jamulindianvillage.com



National Indian Gaming Commission
November 24, 2014
Page 4

of or subsequent to the management contract approval process. For these
reasons, it is clear that NEPA, which only applies to major federal actions
that have the potential to significantly affect the quality of the human
environment, is inapplicable to the NIGC’s casino management contract
approval process under the IGRA.' Adding this additional layer of

bureaucracy increases costs for tribes and delays their important casino ©

projects, simultaneously providing those who would seek to stop Indian self-
reliance (including those called out above by the federal court) with yet more
opportunities to file frivolous lawsuits and impede progress. As noted above,
the Jamul Tribe has not neglected the environment ~ we have already
painstakingly considered it and made many accommodations to protect it.

Second, particularly in light of the NIGC’s limited scope of review and in
recognition that a management contract is merely an agreement between two
parties concerning the management of a casino, common sense dictates that
there is no environmental change to analyze in association with a
management contract approval. Since a tribe may construct a casino with or
without a management contract, the contract itself is merely a piece of paper,
and the way in which a casino may be managed itself generates no impacts to
the environment, NEPA has no logical seat at the table.

Third, assuming arguendo that NEPA might apply in this context (as
discussed above, it does not), the NIGC’s management contract approval
process is naturally excused from NEPA compliance because a statutory
conflict between IGRA and NEPA makes full environmental review
impossible within the short time the NIGC has to decide whether to approve a
management contract. Pursuant to IGRA, NIGC must approve or disapprove
a management contract within a maximum of 270 days (180 days plus one
possible 90 day extension) before a tribe can sue to compel the NIGC to act.
(25 U.S.C. § 2711(d).) Completing an Environmental Impact Statement
(“EIS”) under NEPA, on the other hand, typically takes much longer than one
year because it entails the preparation of multiple drafts of the EIS, agency
and public review and comment on the draft EIS, and public hearings before

' Courts have routinely observed that “[t]he touchstone of major federal action [subject to
NEPA] is.an agency’s authority to influence significant nonfederal activity,” and stated that

+ “the federal agency must possess actual power to control the nonfederal activity.” (Sierra
Club y. Hodel (10" Cir. 1988) 848 F.2d 1068, 1089 [reversed on other grounds]; accord
United States v. Southern Florida Water Management District (1\" Cir. 1994) 28 F.3d 1563,
1572 (noting that NEPA focus “is on the federal agencies’ control and responsibility over
material aspects of a specific project.”); Citizens Against Rails-to-Trails v. Surface
Transportation Board (D.C. Cir. 2001) 267 F.3d 1144, 1151 (court rules that absence of
Significant discretion removed action from reach of NEPA, reasoning that because the
agency had not been granted any discretion to base its approval on environmental
consequences, “it would make little sense to force the [agency] to consider factors which
cannot affect its decision . . ..”); Sugarloaf Citizens Assn. v. FERC (4" Cir. 1992) 959 F.2d
508, 513 (court observed that “when an agency has no discretion to consider environmental
values implementing a statutory requirement, its actions are ministerial and not subject to
NEPA”.)

info@jariulindianvillage.cam

619.669.4785
619.669.4817
P.O; Box 612
Jamul, CA'91935,

§ jamulindianvillage.com



National Indian Gaming Commission
November 24, 2014
Page 6

from NEPA to expressly reference and include a new category covering

decisions to approve casino management contracts pursuant to IGRA. As ~
discussed above, for tribes like the Jamul Tribe that are already federally

recognized, have a tribal reservation and gaming compact with the state and
have already conducted extensive environmental review of and begun

construction on a casino, a categorical exclusion from NEPA makes perfect :

sense. For other tribes who may not be as far along as the Jamul Tribe,

implementing the categorical exclusion we advocate for herein does not 4
preclude environmental review under NEPA should “extraordinary ~

circumstances” exist such that NIGC’s approval of the management contract
actually does have the potential to significantly impact the environment.
Furthermore, for tribes not as far along that require some other federal
approval before a casino may be constructed and operated, such as a fee-to-
trust Process, NEPA will attach and will be complied with in full at a time
and in a context where meaningful changes can be made to address
environmental concerns.

We ask that the Commission use its limited resources where they are most
needed to help tribes like ours move forward with the economic development
that IGRA was intended to promote. To that end, I welcome any questions
you may have and would be pleased to speak with you if you would like
more information about our experience and perspective on this important
issue,

VA
Raymond Hunter
Chairman

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6191669.4785,
619.669.4817
P.O. Box6t2.
Jamul CA'91935:

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«

November 24, 2014

National Indian Gaming Commission

Attn: Mr. Jonodev Osceola Chaudhuri, Acting Chairman
1849 C Street NW,

Mail stop #1621

Washington, DC 20240

Dear Acting Chairman Chaudhuri:

I am writing on behalf of the people of the Jamul Indian Village of
California, a federally recognized Indian Tribe that is one of 13 bands of the
Kumeyaay Nation of Southern California (“Jamul Tribe”), to urge the
Commission to adopt a categorical exclusion from the National
Environmental Policy Act (“NEPA”) for the NIGC’s casino management
agreement approval process.

As you may know, for the past twenty years, the Jamul Tribe has been
steadfastly working toward building a casino as a means of economic
development and self-sufficiency. It has not been easy. At long last, after
numerous project revisions/reductions and extensive environmental impact
analysis, working with our partner Penn National Gaming, Inc. (“Penn
National”), we broke ground on the land and commenced construction of the

» casino in February 2014 (scheduled to open in late 2015). Getting to this

point, however, required a lot of determination, hard work and perseverance.

It has meant defending more than two dozen lawsuits filed by a few litigious
local opponents. They were so litigious in fact that the United States Court of
Federal Claims described their efforts as a “fifteen-year campaign of legal
challenges, perpetuated in the face of repeated dismissals and adverse
judgments on the merits, a campaign that has already wasted enormous
administrative and judicial resources . . ..” Rosales v. United States of
America, 89 Fed. Cl. 565 (2009). Undeterred, this small group of opponents
recently filed new lawsuits as soon as ground was broken on the casino
development and we have no doubt they will use every avenue they can to
impede progress and harass our members again and again, including raising
NEPA claims related to the Commission’s review and approval of the Jamul
Tribe’s casino management agreement with Penn National.

It has meant listening actively to the community and responding to

gommunity concerns by repeatedly reducing the size and scope of the Tribe’s

casino. The casino development has changed (at considerable cost in terms
of time and money) from a 12-story high tise that took realistic advantage of
our Tribe’s small land size to what we are building now — a facility that only

rises three stories above the ground and blends in naturally with the land and

will be a welcome complement to our geography.

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619.669.4817
PO: Box'612
Jamul, CA 91935

jamulindianvillage.com


National Indian Gaming Commission
November 24, 2014
Page 2

Naturally, in getting to this stage, we have vigorously reviewed and complied
with the laws and regulations governing the casino development. In 2013,
we certified completion of the comprehensive and rigorous environmental
review required by our 1999 Gaming Compact with the State of California.

We contracted with a professional environmental consultant experienced in

the field, provided extensive public notice, and provided an opportunity for

all interested parties to review and comment on our environmental impact
analysis and mitigation plans.

We held public hearings and solicited further comments from all interested
parties, including those in San Diego County and our local community. ‘I'he
resulting Final Tribal Environmental Evaluation is two volumes large. (See
http://www. jamulindianvillage.com.php53-9.dfw1-

1 websitetestlink.com/relevant-documents/.) As you can see, we listened to
and worked with our community and made significant changes to improve
the design and reduce the scope of the facility in response to the concerns that
were raised, including but not limited to:

Structural Height: 58% shorter

Apparent Height from SR 94: 76% shorter

Square Footage: 61% smaller floor area

Parking: 20% fewer parking spaces

Dark sky ordinance-compliant project lighting and signage

58% less potable water

49% less wastewater generated

No wastewater removal trucks required
"No untreated storm water leaving the site

No significant impact of light spillage, view shed, or riparian
oak/willow stream

ee ee ed

Further, as a result of those efforts, the casino development will now include
water and wastewater reclamation facilities and address fire protection
measures on-site. Visually, the casino facility will feature an earth tone color
palette and downcast lighting to integrate with and complement the
surrounding area. The Jamul Tribe is also working diligently with the
* California Department of Transportation (Caltrans) and San Diego County
traffic engineers to improve casino access and nearby roadways in an effort
to mitigate traffic impacts associated in part to the Tribe’s new casino and
. improve the safety of SR 94 and ancillary roads for the community and future
customers. Indeed, this effort is currently undergoing even further
environmental review by Caltrans under the California Environmental
Quality Act.
On the heels of all of that work and as casino construction progresses, the
Jamul Tribe is now turning its planning efforts to the management and

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'619\669.4785
619.669.4817.
P.O. Box 612.
Jamul, CA'91935

famulindianvillag


National Indian Gaming Commission
November 24, 2014
Page 3

operation of its casino. However, contrary to the time of first European —

contact in 1524 when the native population of the San Diego area was
estimated at 20,000, today, the Jamul Tribe has just 53 members. That means
we cannot possibly self-staff and manage the casino ourselves as it is
expected to provide more than 1000 jobs. As noted above, we are working
on the development and future operation/management of our casino with the
developer/management company, Penn National, and pursuant to the Indian
Gaming Regulatory Act (“IGRA”), our casino management contract with
Penn National was submitted in 2013 for review and approval by your
Commission.

For the reasons discussed below and to ensure that NIGC’s
straightforward casino management contract approval process is not delayed
and burdened by unnecessary and impractical NEPA compliance for tribes in
the future, the Jamul Tribe urges you to adopt a categorical exclusion for
approval of management agreements by the NIGC under NEPA.

Earlier this year, the Commission conducted four consultation sessions with
tribal leaders and sought the advice of tribes on what level of environmental
review under NEPA, if any, should be required before the Chairman can
approve a management contract. I write today to ask that the NIGC follow
the path that I believe it knows is right. That is, simply, that it makes no
business, policy or practical sense for the NIGC to apply NEPA to its
management contract approval process. There are three significant reasons
why NEPA does not apply in this context and thus why it is important for the
NIGC to formally acknowledge this by adopting a new categorical exclusion
specifically pertaining to management contract approvals.

First and foremost, the NIGC has no authority to make a decision to approve
or disapprove a management contract based on environmental factors or
related grounds for which NEPA review would be applicable and appropriate.
IGRA neither expressly mentions (or even impliedly suggests) NEPA
compliance nor gives the NIGC authority to deny, condition or otherwise
shape a management contract based on the environmental impacts of the
location, construction or operation of the casino. (See 25 U.S.C. § 2711.)
Indeed, NIGC’s scope of review of such management contracts is narrow,

* focusing on the backgrounds of individuals with a financial interest or

management responsibility in and business plan for the casino, and the
limited grounds upon which a management contract can be disapproved are
similarly silent with respect to environmental issues and narrowly focused to
avoid self-dealing and criminal activity in casino operations. (Jd. at §
2711(e).) Simply put, NIGC decisions on casino management contracts do
not regulate or have any impact on the location, size or construction of the
casino. Indian tribes have the authority to build and operate gaming
operations on their lands even without an approved management contract and
no federal funding is granted by the NIGC or any other federal agency as part

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19.669.4817.

P.O; Box 612
Yamul;:CA:91935

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