1.0 INTRODUCTION
1.1 History of the JIV Reservation and Gaming Facility

The Jamul Indian Village (JIV) is a federally recognized Indian tribe, and the JIV
Reservation is located in the unincorporated portion of southwestern San Diego County,
approximately one mile south of the community of Jamul. The JIV Reservation occupies
approximately six acres of land, and is held in federal trust for the benefit of JIV. State Route 94
(SR-94) provides regional access to the JIV Reservation, including from downtown San Diego,
which is located approximately 20 miles to the west. Local access to the JIV Reservation is
provided directly from SR-94 via Daisy Drive.

In 1999, JIV entered into a Tribal-State Gaming Compact with the State of California
pursuant to IGRA. JIV’s initial proposal contemplated the acquisition of approximately 101
acres of additional land in order to build a large casino-resort/hotel complex. Acquisition of the
additional lands would proceed via a fee-to-trust transfer and would require Bureau of Indian
Affairs approval. JIV also proposed to enter into a gaming management contract as part of this
larger casino-resort complex project, subject to NIGC approval of the contract. During this early
phase of the request, the BIA served as the lead agency while NIGC acted as a cooperating
agency. The agencies subsequently developed an EIS for the proposed fee-to-trust and
management contract requests. The notice of availability (NOA) for the Draft EIS was published
in the Federal Register on January 17, 2003, and after considering all comments, the NOA for
the Final EIS was published on November 14, 2003.

Following 2003, JIV greatly reduced the size and scope of its proposal. JIV redesigned its
gaming project to remove the resort/hotel component and ensure that the JIV gaming facility
component would fit entirely within the existing six-acre JIV Reservation. Because the gaming
facility was redesigned to fit entirely on the existing Reservation, and was constructed entirely
on the existing Reservation, the fee-to-trust conveyance of additional land was no longer
necessary and BIA approval was no longer needed. The Tribe thus withdrew its fee-to-trust
application for the 101 acres.

In accordance with its obligations under the Tribal-State Gaming Compact, JIV evaluated
all environmental effects of the redesigned gaming facility through preparation of a Final Tribal
Environmental Evaluation (FTEE). Between the release of the Draft and Final Tribal
Environmental Evaluation, the JIV provided a public comment period and held a public meeting
to accept comments on the Draft Tribal Environmental Evaluation. All written and oral
comments provided by the public during the comment period were responded to and
incorporated into the FTEE. The FTEE was finalized in 2013 and the Tribe completed the
redesigned gaming facility on its Reservation.

Having withdrawn its fec-to-trust application, it could have chosen to manage the gaming
facility on its own and thereby eliminated all federal involvement in the project. Instead,
however, JIV continued to pursue the proposed GMA with SDGV to professionally manage the
gaming facility. Since the Indian Gaming Regulatory Act requires the NIGC Chair to approve a


Furthermore, certain comments on the SEIS concerned the NIGC’s decision not to hold a
public hearing on the SEIS; however, NEPA does not require federal agencies to hold public
hearings.'° The decision whether or not to hold a public hearing rests solely with the federal
agency.'! The NIGC made the decision not to hold a public hearing due to 1) the extensive
public review previously provided for the JIV gaming facility project through the FTEE, and 2)
the limited scope of the Proposed Action. With regard to the public review of the FTEE, five
public hearings were held on the gaming facility over a twelve-year period, allowing ample
opportunity for the public to provide input on gaming related issues, including gaming
management. The NIGC, therefore, determined that holding an additional public hearing would
not significantly contribute to an understanding of the issues. Second, while the Proposed Action
is limited to the issue of gaming management, the majority of written comments provided during
the SEIS scoping period and the DSEIS comment period did not address NIGC’s review of
gaming management, but instead focused on traffic circulation and safety as the main issue.
Given that the JIV could operate the gaming facility without the Proposed Action, none of the
physical effects commented on applied to the project under review by the NIGC.

In sum, by soliciting and responding to two rounds of written comments, and in light of
the nature of the comments received, the NIGC afforded all interested parties ample opportunity
to participate in the review and approval process for the Proposed Action. !

9.0 SIGNATURE

By my ALS my decision to implement the preferred alternative.

MAMA 4 (30h
onodev O. Chatidhuki” Date;

Chairman
ational Indian Gaming Commission

© See 40 CER. § 1506.6(c).

a Td.

” The NIGC also received comments on the SEIS pointing out that an incorrect email address for NIGC’s receipt of
comments was provided in a letter to interested parties. The NIGC refers these commenters to the Notice of
Availability of the FSEIS, which discloses that the correct email address, (Andrew_Mendoza@nige.gov ), was
provided in the NOA that was published in the Federal Register. Furthermore, the NIGC notes that the physical
address for NIGC was provided in the NOA, as was the telephone number for NIGC. Thus, all interested parties
were able to submit comments via U.S. mail or contact NIGC by telephone to obtain a different email address.

10


2.2 Comparison of Alternative and Proposed Action

Approval of the Proposed Action would result in experienced, professional management
of the gaming facility’s operations. SDGV is a wholly owned subsidiary of Penn National
Gaming. Penn National was incorporated in 1982, and became a publicly traded company in
1994. It operates twenty-six gaming and racing facilities in seventeen jurisdictions. In the
aggregate, its facilities feature approximately 31,000 gaming machines, 800 table games and
3,000 hotel rooms. Moreover, since 2012, Penn National and their joint venture partner have
opened thirteen Hollywood branded regional facilities in eight states. This extensive experience
in the gaming industry enables SDGV to immediately step in as manager for the Tribe and
maximize the profit potential of the gaming facility.

By contrast, JTV does not have any gaming management experience. Therefore, it is
likely that, at least at the outset of the gaming facility’s operations, it would not be able to
manage with maximum efficiency. Rather, the Tribe would experience an initial “learning curve
before optimal results are achieved. This lag could increase operating costs and reduce net
revenues. SDGV’s management of the gaming facility would presumably result in greater net
income and substantially greater profits than those realized through facility management by JIV.

”

3.0 DISCUSSION OF FSEIS ENVIRONMENTAL IMPACT ANALYSIS
3.1 Environmental Impacts Associated with the No Action Alternative

The Final Rule for the Department of Interior’s Implementation of NEPA (October 15,
2008) states that “[t]he ‘no action’ alternative is not the alternative that results in ‘no change’ to
the environment; rather it represents the state of the environment without the proposed action or
any of the alternatives.” Since the NIGC did not have the authority to prevent JIV from
constructing the gaming facility or to control the gaming facility’s operational baselines, it was
required to identify a no action alternative based on the predictable action the JIV would take if
the Proposed Action was denied.° The predictable action documented by the FSEIS is the
completion and opening of the gaming facility and the JIV managing its day-to-day operations
instead of SDGV. Therefore, these actions constitute the No Action Alternative for purposes of
this environmental review.

As mentioned throughout this ROD, the impacts associated with the No Action
Alternative were analyzed and reviewed as part of the Tribe’s 2013 FTEE. The effects analyzed
within the FTEE are incorporated into the FSEIS and the accompanying administrative record as
they are effects associated with the No Action Alternative. Since those impacts were not within
the scope of the NIGC’s decision-making authority, the NIGC was only responsible for
reviewing the effects of the Proposed Action against those incorporated into the No Action
Alternative rather than against a baseline that assumes no change to the environment.’

573 Fed. Reg. 61291, 61310 (October 15, 2008).
° See 46 Fed. Reg. 18026 (March 23, 1981).
773 Fed. Reg. 61291, 61310 (October 15, 2008).


gaming management agreement before it can become legally enforceable, this became the only
aspect of the project still subject to federal review. Consequently, because BIA no longer had
any role in the project NIGC replaced it as lead agency.

The gaming facility, itself, was always designed to be located on JIV’s Indian lands;
however, in conjunction with the redesign of the project, several aspects changed. Features that
were originally designed to be located on adjacent land north of the proposed project were
moved to fit within the existing reservation. The reconfiguration of the project together with the
passage of time since the publishing of the Final EIS in 2003, led the NIGC to develop and issue
a Supplemental Environmental Impact Statement to address the changes. The NIGC had no
authority regarding the other aspects of the revised project, and therefore it addressed only
alternatives that concerned the GMA (i.e., 1) the No Action Alternative pursuant to which JIV
would manage the gaming facility; and 2) the Proposed Action whereby SDGV would manage
the proposed gaming facility). No other alternatives were addressed in the Supplemental
Environmental Impact Statement.

1.2 Description of the Proposed Action

If approved, the Proposed Action would allow SDGV to manage the day-to-day operation
of the JIV gaming facility. SDGV would select food and beverage vendors; set service rates and
product pricing; levy charges to guests or patrons; hire and fire concessioners, control the
issuance of credit to guests or patrons; determine the terms of admittance to the gaming facility
for purposes of entertainment; determine staffing levels and staff organizational structure; and
control the type and character of marketing, advertising, entertainment, and promotion for the
gaming facility.

13 Purpose and Need for the Proposed Action

The purpose and need for implementing the GMA with SDGV is to provide for a level of
professional management of the gaming facility that will ultimately improve the long-term
economic condition of JIV and its members through the development of stable, sustainable
sources of employment and revenue. Revenues generated from the gaming facility will promote
tribal economic development, self-sufficiency, and strong tribal government, including
supporting social, governmental, and educational programs for tribal members, all as Congress
intended in enacting IGRA.

2.0 ANALYSIS OF ALTERNATIVES
21 The No Action Alternative

Under the No Action Alternative, the Tribe would manage the gaming facility’s day-to-
day operations. JIV’s Tribal government would assume responsibility for selection of all
vendors; setting of prices/rates; charges to guests/patrons; concessioners; issuance of credit;
granting of complementaries; the terms of admittance to the gaming facility for purposes of
entertainment; staffing levels and staff organizational structure; and the type and character of
publicity, marketing, advertising, entertainment, and promotion.


6.0 MITIGATION MEASURES

All mitigation measures associated with the No Action Alternative were analyzed and
incorporated into the 2013 FTEE. Since those measures were incorporated into the No Action
Alternative and are not within the authority of the NIGC to control, they are not discussed here.
In any event, there are no additional impacts imposed through implementation of the Proposed
Action and, therefore, no mitigation measures are required.

7.0 DECISION TO IMPLEMENT THE PREFERRED ALTERNATIVE

The NIGC Chair selects the preferred alternative as described herein. This decision is
made based upon the analyses and information contained in the DSEIS, FSEIS, and the
administrative record related to that analysis. Based upon the information and analyses contained
in the foregoing documents, the NIGC Chair finds that the preferred alternative will not result in
any adverse effects on the environment and it will maximize the economic benefit to JIV over
and above the economic benefit that could be realized through the No Action Alternative.

8.0 SUMMARY OF RESPONSES TO COMMENTS ON THE SEIS

In accordance with the requirements of 40 C.F.R. § 1503.4, the NIGC considered and
responded to all comments submitted in connection with the DSEIS, the Notice of Availability
(NOA) for which was published in the Federal Register on April 8, 2016. All comments on the
DSEIS and the responses to those comments are attached to the FSEIS in accordance with 40
CFR. § 1503.4(b).

Although NIGC was not required to solicit and consider comments on the FSEIS,’ it
nevertheless afforded interested parties an opportunity to comment on the FSEIS. The NOA for
the FSEIS was published in the Federal Register on July 8, 2016. The purpose of this section is
to briefly describe and respond to the comments on the FSEIS.

The majority of comments on the FSEIS restated comments previously submitted on the
DSEIS. The comments primarily related to the effects of the construction of the gaming facility
and the baseline operational effects of having the gaming facility on the JIV reservation, rather
than the effects associated with the Proposed Action being considered by NIGC. As explained in
the DSEIS and the responses to comments on the DSEIS, the JIV gaming facility is not part of
the Proposed Action. The Proposed Action consists solely of the approval of the GMA between
the JIV and SDGV. The NIGC is not responsible for evaluating the environmental consequences
of the JIV gaming facility and is not responsible for imposing mitigation to alleviate any
environmental impacts associated with the presence of the JIV Gaming Facility on the Tribe’s
reservation. The NIGC is responsible, through the SEIS, only for addressing the environmental
consequences, if any, of approving the GMA between the JIV and SDGV. For reference, the
environmental impacts of the JIV gaming facility and its presence on the JIV reservation were
previously addressed through two public processes: (1) JIV’s 2013 Final Tribal Environmental
Evaluation, and (2) the California Department of Transportation’s 2016 State Route 94
Improvement Project Final Environmental Impact Report.

° See 40 C.F.R. § 1503.1(b).


National Indian Gaming Commission

National Environmental Policy Act Record of Decision

Selection of the Preferred Alternative: Approval of Gaming Management Agreement
between the Jamul Indian Village (JIV) and San Diego Gaming Ventures for Operation
and Management of a Gaming Facility Previously Constructed on the JIV Indian
Reservation Located in Unincorporated San Diego County, California.


3.2 No Additional Environmental Impacts Associated with the Proposed Action

As discussed in section 2.2 above, the Proposed Action and No Action Alternative differ
only in terms of the entity managing the gaming facility operations and the potential profits to be
realized through facility operations. No new temporary or permanent structures beyond those
identified in the FTEE will be erected as part of the Proposed Action. Moreover, approval of the
GMA does not alter the external look or scope of the gaming facility, and does not change the
operational baselines as reviewed and discussed within the approved 2013 FTEE. The GMA is
merely a contract to manage the operations of the existing gaming facility to maximize the
monetary benefit to JIV.

Consequently, the SEIS documents the findings of the previously completed FTEE,
evaluates the effects of the Proposed Action against the No Action Alternative and concludes
that approval of the GMA would not result in environmental effects greater than those associated
with the No Action Alternative. The FSEIS demonstrates that with or without the Proposed
Action, each of the factors analyzed will have the same resultant impact on the environment.
Therefore, it concludes that implementation of the Proposed Action would not result in any
additional environmental impacts as compared with the No Action Alternative.

4.0 ENVIRONMENTALLY PREFERABLE ALTERNATIVE(S)

As explained in Section 3.0 above, implementation of the Proposed Action instead of the
No Action Alternative does not result in any additional effects on the physical environment.
Because both the Proposed Action and the No Action Alternative result in the same amount of
environmental impacts, both are considered environmentally preferable alternatives.*

5.0 PREFERRED ALTERNATIVE

As discussed herein, the purpose and need for the Proposed Action is to provide JIV with
the opportunity to develop and maintain a source of revenue sufficient to allow it to meet its
governmental needs and the needs of its tribal members in accordance with Federal policies
enunciated in the IGRA, IRA, and related laws and regulations. As discussed in Section 2.2,
management of the gaming facility by SDGV is the best option to maximize JIV’s profits to
allow it to meet its obligations and benefit its tribal members. Penn National, SDGV’s parent
corporation, has successfully managed gaming facilities for more than thirty years and can
immediately apply its experience to maximize operational efficiencies at the gaming facility.
Those increased efficiencies will result in greater initial net profits and revenues to the Tribe than
those associated with the No Action Alternative.

For the reasons stated above, the NIGC Chair finds that the Proposed Action is the
preferred alternative because the revenue realized by JIV through SDGV’s management of the
gaming facility would be substantially greater than the revenue realized through facility
management by JIV. Accordingly, approval of the GMA with SDGV best meets the purpose and
need of the Proposed Action.

® See 40 CFR §1505.2.


Table of Contents

1.0 INTRODUCTION

11 History of the Approval and Construction of the JIV Gaming Facility
1.2 Description of the Proposed Action

13 Purpose and Need for the Proposed Action

2.0 ANALYSIS OF ALTERNATIVES

21 The Proposed Action

2.2 The No Action Alternative

3.0 | DISCUSSION OF FSEIS ENVIRONMENTAL IMPACT ANALYSIS

3.1 Environmental Impacts Associated with the No Action Alternative
3.2 No Additional Environmental Impacts Associated with the Proposed Action
4.0 © ENVIRONMENTALLY PREFERRED ALTERNATIVE(S)

5.0 PREFERRED ALTERNATIVE

6.0 MITIGATION MEASURES

7.0 DECISION TO IMPLEMENT THE PREFERRED ALTERNATIVE

8.0 SUMMARY OF RESPONSES TO COMMENTS ON THE SEIS

9.0 SIGNATURE

ATTACHMENTS

Attachment I — Final SEIS Notices
Attachment II — Responses to Comments on the FSEIS


California, JIV was required to enact an environmental protection ordinance which incorporated
the policies of the National Environmental Policy Act! and the California Environmental Quality
Act.’ The ordinance that was ultimately approved required the Tribe to prepare an environmental
impact report, in this case the FTEE, and to consult with relevant government agencies and the
public regarding the report’s findings. In 2013, following the completion of that environmental
review process and in accordance with the JIV’s ordinance and Compact, the Tribe accepted the
results of the FTEE, and elected to move forward with the project. Consequently, since the
decision to complete the gaming facility on the Tribe’s reservation was not part of the Proposed
Action, its effects are not included within this ROD, nor as effects of the Proposed Action within
the DSEIS, or the FSEIS.

Additionally, as set forth in the DSEIS, FSEIS, and the administrative record related to
the Proposed Action, approval of the GMA will provide JIV with a dependable, sustainable
source of income to allow it to achieve self-sufficiency, self-determination, and a strong tribal
government. These effects are consistent with the goals of the Indian Gaming Regulatory Act,
which was enacted to promote tribal economic development? These are beneficial economic
factors associated with the Proposed Action that may properly be considered by the NIGC
Chair.

With the issuance of this ROD, NIGC announces that the Proposed Action is the
preferred alternative in accordance with 40 C.F.R. § 1505.2. The NIGC Chair finds that the
Proposed Action will not result in any significant impacts to the environment and that it will
provide JIV with the best opportunity for developing and maintaining a source of revenue
sufficient to allow it to meet the needs of its tribal members in accordance with Federal policies
enunciated in the IGRA, the Indian Reorganization Act, and related laws and regulations. The
NIGC Chair’s decision is based on his review of the DSEIS, the FSEIS, the administrative
record, and comments received from the public, federal agencies, state agencies, local
government entities, and potentially affected tribes.

FOR FURTHER INFORMATION CONTACT:

Andrew Mendoza, Staff Attorney, National Indian Gaming Commission Office of the General
Counsel 1849 C Street NW, Mail Stop #1621, Washington, DC 20240 Phone: 202-632-7003:

Facsimile: 202-632-7066: e-mail: Andrew_Mendoza@nige.gov

* 42 U.S.C. §§ 4321-4370h

? Cal. Pub. Res. Code §§ 21000-21178
8 See 25 U.S.C. § 2701(4).

4 See 40 C.F.R. § 1505.2(b).


AGENCY:

National Indian Gaming Commission (NIGC).
ACTION:

Record of Decision on Selection of Preferred Alternative.
SUMMARY:

The decision made by way of this Record of Decision (ROD) is the selection of the
Proposed Action as the preferred alternative over the No Action Alternative. The Proposed
Action, as set forth in the Draft Supplemental Environmental Impact Statement (DSEIS), the
Final Supplemental Environmental Impact Statement (FSEIS), and the administrative record for
this decision is the approval by the NIGC of a Gaming Management Agreement (GMA) between
the Jamul Indian Village (JIV or Tribe) and San Diego Gaming Ventures (SDGV). The GMA
provides that SDGV will assume responsibility for the operation and management of an existing
gaming facility located on the JIV Indian Reservation in San Diego County, California. A DSEIS
analyzing the potential effects of the Proposed Action was made available for public review and
comment on April 8, 2016. The review and comment period remained open for 45 days and
closed on May 23, 2016. A total of nine comment letters were received. All comments received
by the NIGC were considered and addressed in the FSEIS, and made available for public review
and comment on July 8, 2016. The DSEIS and FSEIS also consider the effects of a No Action
Alternative. The No Action Alternative assumes that the GMA is not approved, and, therefore,
that the JIV tribal government will manage the day-to-day operations of the gaming facility
instead of SDGV.

As explained in the DSEIS and FSEIS, the Proposed Action will have no adverse effect
on the environment. The consequence of this approval is that SDGV will have the “...exclusive
authority to conduct and direct all business and affairs in connection with the day-to-day
operation, management and maintenance of the [JIV] Gaming Facility...” In other words,
SDGV will control operation of the gaming facility during the term of the contract, which is
seven years. The matters that SDGV would control include: use of vendors; rates; pricing;
charges to guests or patrons; concessioners; the issuance of credit; the granting of
complementaries; the terms of admittance to the gaming facility for purposes of entertainment;
staffing levels; and the type and character of publicity, marketing, advertising, entertainment, and
promotion. These demonstrate thal the GMA is merely a contract governing the operations of the
existing gaming facility. Its approval will not result in any direct or cumulative impacts to the
physical environment.

This ROD, the DSEIS and FSEIS do not discuss or decide upon the environmental and
other off-reservation impacts related to the construction and operational baselines of the gaming
facility because they are not within the scope of the Proposed Action. The decision to construct
the gaming facility was an independent determination made by JIV and was never subject to
NIGC review. These effects, however, were reviewed by JIV in its Final Tribal Environmental
Evaluation (FTEE) in 2013. Pursuant to the Tribe’s Gaming Compact with the State of