Native Americans Agree To Follow County Rules
"I don't have to talk to you," the developer says to the public official. "I have the right to build whatever I want, wherever I want it."
How many developers, exhausted or hamstrung by local government, have longed to say those words? And how can local government respond, when a developer actually does say those words to them — with the full support of federal law?
As it turns out, at least one group of developers in California actually can say those words, and back them up: Native American tribes that want to develop gambling casinos
Despite those unquestioned powers, Placer County found a way of entering into a dialogue with a local Native American tribe on the ticklish question of casino development, and eventually got the tribe to agree voluntarily to abide by local land-use controls. Both the president of the Placer County Board of Supervisors and an attorney for the tribe praise the pact as a model for future cooperation between Indian tribes and local governments.
Like it or not, casino gambling on Indian reservations is a rapidly growing phenomenon in California, where at least 67 Indian tribes are currently seeking to build or expand casinos, according to the Associated Press. Under the Indian Gaming Regulatory Act of 1988, Native American tribes that are recognized by the U.S. government have the right to build casinos without regard to local land-use controls; the language of the statute explicitly states that local government regulations do not apply.
Being a pest, or threatening to become one, was the way that a Placer County supervisor brought one tribe to the table.
In 1994, Congress granted official recognition to the United Auburn Indian Community, which gave the tribe the right to acquire land anywhere in the county for the purpose of creating a reservation. (The tribe heretofore has been landless.) In 1997, representatives of the tribe approached then-newly elected Supervisor Robert Weygandt and informed him that the tribe intended to build a 200,000-square-foot casino near Penryn, which is located just off heavily traveled Interstate 80 about 30 miles northeast of Sacramento.
Although a freshman supervisor, Weygandt had just completed four years on the county's Planning Commission and had a better-than-average sense of land-use law. Shortly after tribal officials presented their plans to Weygandt, he drafted a resolution, which the Placer County Board of Supervisors later approved, that essentially said the tribe should respect county land-use planning.
"I was not an opponent of the proliferation of gambling in the state," Weygandt said. "My problem was more the exemption from land-use planning.
The supervisor figured he had nothing to lose by asking the Native Americans to comply with the local rules. He also thought it conceivable that the tribe would want to avoid the sort of bad blood that was brewing between members of the Shingle Springs tribe and residents of nearby El Dorado County, where the tribe wanted to build a 100,000-square-foot casino and 325-room hotel just east of Sacramento.
Weygandt now acknowledges that the resolution was a bit of a bluff. "We all sort of knew that the only real right the county had was to challenge the project on a NEPA issue." If the tribe chose to build on land that was environmentally sensitive and could trigger the federal law, Weygandt reasoned, the county might obtain the leverage it needed to fight the casino. In his view, the Penryn site may have been sensitive enough.
A few months later, Weygandt wrote a letter to the tribal chair to see how receptive the tribe would be to talking. To Weygandt's surprise, tribal officials wrote back and said, in effect, that they were willing to comply with all local land-use standards, including traffic mitigation, design review guidelines and environmental review.
Weygandt is still not sure what convinced the tribe to accept the county's conditions. "I gave them the best possible sales routine, that one player that was not playing by the rules could ruin a whole community," the Placer County supervisor recalled. "Somewhere in the process they genuinely embraced the theory. I tell people that (the Native Americans) became born-again land-use planning advocates."
Eventually, the Auburn tribe agreed to locate the casino on a 58-acre site within a 9,000-acre industrial park in the City of Rocklin, a few miles west of Penryn. The site was already designed for intense traffic impacts, and the location could serve as a buffer between the casino and residential neighborhoods.
Last August, the county and the tribe finalized a memorandum of understanding. The agreement does not require the tribe to submit to either the county building department or CEQA. Instead, the agreement "sets out the standards that are going to apply, as a matter of tribal law, and gives the county certain assurances with which the tribe will meet those standards," said Howard Dickstein, the tribe's attorney. If the county does not agree, it can initiate arbitration procedures. The agreement also establishes a committee to monitor the relations between the county and the tribe, and to propose amendments to their agreement, if and when needed. The committee becomes the forum for doing business and resolving disputes between the county and the tribe.
Dickstein sounded even more impressed with the agreement than was Supervisor Weygandt.
The agreement between the Auburn tribe and Placer County is "the most comprehensive agreement of its kind, not only in the state but in the nation." The pact, he continued, "reflects a kind of maturity on the part of both governments, and a recognition that they are interdependent."
Sovereignty, according to Dickstein, "no longer means drawing a line in the sand."
One irony of the situation is that several other Indian tribes have expressed concern that the Auburn-Placer agreement would become a precedent that could have the ultimate effect of eroding the right of Native Americans to develop free of land-use regulation.
I admire the Auburn tribe for behaving like neighbors, rather than like an imperious sovereign nation, or, even worse, like a neighboring California city. In the state's present climate, it is refreshing to hear someone say, "I can build whatever I want, but I will talk to you about it anyway, because we are neighbors and our mutual well-being is interconnected." With 67 more casinos in the offing, it would be good to hear those words more than once.