Tribe's Development, Trust Status Efforts Stir Legal and Political Concerns

Asher Kohn on
Dec 21, 2014

The Santa Ynez Valley in Southern California brands itself as bucolic wine country, a mix between grape-covered hills and Old West charm. The Chamber of Commerce touts the hospitality and diversity of the valley's several thousand residents. But one thing that isn't mentioned in the Chamber's materials is the Chumash Casino Resort, a business run by the government of the Santa Ynez Band of Chumash Indians that generated a reported $366 million in revenue in 2008.

Aided by the casino's success, the Tribe has been able to buy additional land near its 146-acre reservation. What it plans to do with that land has been a subject of angry debate. Many in local government and other local organizations fear that added Tribal land development may upset the power balance in the valley, especially since Indian land is not subject to local or state regulations.

The government of the Tribe (and its approximately 150 members) now appears close to acquiring federal trust status for a 1,400-acre property that it purchased through an ordinary real estate transaction in 2010.

The property is a classic expanse of California farmland on Highway 154 near Solvang, known as "Camp 4," and formerly owned by vintner and Hollywood star Fess Parker. It is currently zoned for agriculture and partly managed as a vineyard.

In October the plan won a Finding of No Significant Impact (FONSI) from the Bureau of Indian Affairs (BIA), determining that the trust status would not affect the quality of the human environment significantly enough to require a full Environmental Impact Statement (EIS) process.

The FONSI presumes the Tribe will follow its announced plan for the land, saying "The proposed trust land would enable the Tribe to provide housing for its existing tribal members and continue to provide housing for descendants as they come of age." It states the existing reservation has only about 50 acres of "usable" land within its reservation, "much of which has already been developed."

Many non-Native residents and state and county officials, however, are anxious that the land could be used for economic development projects outside the reach of taxation or regulation at the state and county level. Local opponents' sites include http://polosyv.org, http://savethevalley.info/ and www.syvconcernedcitizens.com. The county's documents page on Camp 4 is at www.countyofsb.org/ceo/camp4.sbc.

A long-disputed claim

Tribal real estate developments can avoid state and local land-use regulations because tribes are outside states' jurisdiction. Native American tribes are recognized by the federal government as separate sovereigns, often with treaty rights recognized and signed by various U.S. presidents over the years.

The extent to which the Camp 4 land was held by or for the Tribe during the last few centuries is disputed. (The federal government can still choose to take property into trust that a tribe has purchased even if it is not considered part of that tribe's past or present reservation land.) Santa Barbara County and the Tribe itself both point to the Reservation's beginning as part of the Catholic Mission Santa Ines. The Tribe's Web site states the reservation was founded in 1901. Opponents have argued that the Tribe did not exist until relatively recent years and that when land was held previously, by owners including the Church, it was not on the Tribe's behalf. The FONSI describes the Catholic Church as having held land for the Tribe that included the Camp 4 area.

Concurrently with the Camp 4 proposal, the Tribe pursued approvals this fall for a further expansion of the casino within the reservation boundaries. The work reportedly was contracted to Tutor-Perini this fall at a price tag of $112 million. In September the Tribe granted its own certification to the project's environmental evaluation.

Opponents have been watchful for expansive tribal sovereignty claims in the context of the casino expansion that could also strengthen the Tribe's position with respect to Camp 4.

Routes to trust status

The Tribe, which requires Federal approval for the "fee to trust" transfer, has sought to obtain it through either an administrative BIA process or Congressional action.

Under trust status, the federal government would hold legal title, under terms similar to private fiduciary duty, explicitly for the benefit of the entire Tribe and outside the state regulatory framework. Trust land has been held to be more purely "Indian Country" than land held by a tribe through ordinary "fee simple" real estate titles. So state officials are concerned that if the land becomes trust land they will no longer be able to keep the Tribe from using it however it wishes – possibly building high-rise or high-density apartments against local zoning ordinances, or even constructing casino expansions.

Camp 4 was part of a 11,500-acre parcel that the Tribe applied in 2013 to have designated as a Tribal Consolidation Area (TCA). TCA status would have allowed it to be more easily moved into Trust status. The BIA approved the consolidation plan application, but after objections from the County Supervisors and others, the Tribe withdrew it in October 2013 -- an act that Tribal spokesman and attorney Sam Cohen called that of a "good neighbor".

In October 2013, not long after the Tribe withdrew its TCA application, Rep. Doug LaMalfa, R-Richvale, introduced a bill in Congress, HR 3313, to transfer Camp 4 into federal trust for the Tribe. LaMalfa has been criticized for bringing the bill because the Santa Ynez Valley is a long way from his own district, which is in the northeast corner of the state. HR 3313 has not moved in the House since its introduction. But the Santa Barbara Independent has reported the bill could be reintroduced in the new Congressional session, especially if the Camp 4 fee-to-trust application is approved by the BIA and appealed.

Although HR 3313 explicitly would exclude gaming from Camp 4, and the Tribe has reiterated that the casino expansion and Camp 4 development are separate projects, the proposal's opponents are worried that this restriction could be overridden once the land is removed from state and county jurisdiction.

Andi Culbertson, a Santa Ynez Valley resident and land use lawyer, expressed concern that once the land is solely in Tribal hands, "they can build anything." Culbertson said there is "hardly a necessity for housing" for those Tribal members who live in the Valley, and that only 17% of the Chumash Tribe (about 25 people) live on the reservation. How many are full-time residents is disputed, but the Tribe says that more Tribal members will return to the valley if there is Tribal-run housing for them.     

Objections to the transfer

Opposition to the Chumash plans comes from a variety of sources, but focuses on a few key issues summed up by the California Coastal Protection Network (CCPN). The Network notes that although 100% of the 111 California fee-to-trust applications to the Pacific Region of the BIA from 2001-2011 were approved, those each averaged under 100 acres, far smaller than the Chumash Tribe's application for 1,400 acres.

Santa Barbara County, through its County Executive Office, has opposed federal trust status for Camp 4. In the comment process on the Tribe's Environmental Assessment (EA) for the fee-to-trust plan under the federal National Environmental Policy Act (NEPA), the County submitted strong criticisms of the Assessment and sought more thorough review through a full Environmental Impact Statement (EIS).

One important issue is loss of tax revenue. Tribes do not pay taxes to state or local governments because they are sovereigns of equal standing. In 2011 the Tribe proposed a "cooperative agreement" that among other things called for payments in lieu of taxes. Tribal Chair Vincent Armenta told the local Noozhawk Web site in 2013 that the Tribe had hoped "to negotiate a payment in lieu of property taxes for our Camp 4 land," but was rebuffed by Third District Supervisor Doreen Farr, who has opposed the fee-to-trust application.

A 2011 copy of the proposed cooperative agreement left the in-lieu payment amount blank but an October 2013 comment letter by the Santa Ynez Valley Concerned Citizens said the proposed cooperative agreement (CA) was offering $1 million per year for ten years in exchange for county support of the fee-to-trust transfer. In that group's opinion the offered amount wasn't enough to make up for the property's permanent removal from the tax rolls, especially if the property were to be developed, increasing in value while creating a need for more services.

One recent county action suggested an approach to the cost of police protection: the Tribe received the Supervisors' approval in November 2014 to contract with the county Sheriff's Office for policing on the reservation, at a cost to the Tribe of $849,000 per year. The Independent reported that, in joining the unanimous approval, Farr compared the policing agreement to what the paper described as "a longstanding contract between the tribe and County Fire."

The CCPN has decried the Cooperative Agreement as vague, saying it "did not contain an explicit project description for uses on the 1,400 acres, but indicated that it would include housing and unspecified ‘economic development'."

Likewise the county has objected that the Tribe's NEPA documents don't say how many people would live on each of 143 proposed residential lots or how many would use planned structures such as a conference center.

The County Supervisors also voted 3-2 to initiate litigation against the BIA if it grants the transfer, which was considered likely to happen in December.

Local discussions have stalled even over the terms of negotiations on plans for the Camp 4 property: whether they should be conducted government-to-government as the Tribe prefers or county-to-landowner as the County would like.

By a 3-2 vote on August 20, 2013, the Supervisors invited the Tribe to "begin discussions with the County Planning and Development Department" regarding development plans for Camp 4. But the Santa Barbara News-Press and Santa Barbara Independent reported the Supervisors rejected "government to government" negotiation on Camp 4. They reported Farr acknowledged the Tribe's sovereignty on its reservation but that she said with respect to Camp 4 the Tribe should deal with the County as an ordinary landowner. The Independent said Supervisors Salud Carbajal and Steve Lavagnino supported "a government-to-government dialogue" on Camp 4 but were outvoted. Soon after, the Independent reported the parties had scheduled a meeting, but with Cohen not "overly optimistic about the opportunity."

Since then each side has accused the other of snubbing invitations to negotiate. In an open letter to Capps in May 2014, Armenta wrote, "the County has refused to even acknowledge our standing as a government by voting to reject any efforts to formally negotiate with the tribe."

Non-CEQA environmental regulation

Tribal land is not subject to the California Environmental Quality Act (CEQA). In practice, tribal authorities are under various pressures to follow the spirit (if not the letter) of local environmental quality acts. Tribes are subject to federal environmental standards, including NEPA, and also often have a political interest in working with local regulatory authorities and contractors.

Culbertson, however, complained of inconsistencies between the Tribe's process and what CEQA would require. For example, she saw deficiencies in the public notice process for the Environmental Evaluation prepared by the Tribe for the casino project. She wrote that the Evaluation was "made the subject of a ‘public meeting' [that] was so poorly advertised that it only attracted 15 people. The manner of notice was woefully deficient under CEQA."

Culbertson noted that "It's a developer's fondest dream to be able to escape all state regulations," and the Camp 4 development would do precisely that.

The Tribe's 2011 cooperative agreement draft includes a "Consent to Jurisdiction" section that would grant a "limited waiver of sovereign immunity from suit" to the County to enforce the agreement. But that doesn't impress opponents of the notion that tribal sovereignty applies to Camp 4 at all.

"In a perfect world, tribes and their counties would work out some agreed-upon system similar to currently existing county LAFCO processes," said Cohen.

Elsewhere, approaches to state-federal and tribal-state jurisdictional issues have included federal consistency review for agencies like the Coastal Commission and memoranda of understanding for joint CEQA and NEPA reviews. The California State Association of Counties has posted a tribal and intergovernmental relations platform calling for future tribal-state compacts to include a CEQA consistency process for environmental reviews. But it's unclear what may work in the Santa Ynez Valley.

At the state level, the offices of Governor Jerry Brown and the California Attorney General have taken a skeptical interest in fee-to-trust processes. The AG's office issued several objecting comment letters between 2011 and 2013 on California tribes' fee-to-trust applications. (One such objection concerned 878.55 acres where the Tule River Tribe hoped to build a wastewater plant.)

However, the Capitol Weekly reported last summer that the AG and Governor "have declined to involve themselves in the Camp 4 issue" following a strongly worded objection to the comment letters from the California Fee-to-Trust Consortium, a group formed by tribes with the Pacific Region BIA office.

Fear of water rights claims

Tribal water rights are a concern in the valley as throughout the state. Comments opposing the Camp 4 trust status reflect concern over water supply for development and anxiety that the Tribe might assert new water claims via sovereign status.

The county's November 2014 response to the FONSI said the groundwater basin serving Camp 4 was already "in overdraft", and that "Recent data also suggests that the supplemental supplies obtained from the State Water Project and the Cachuma Project, that helped create a surplus in the past, will not constitute a long-term, stable additional water source."

Cohen has offered reassurances that a transfer to trust would not give the Tribe new water right priorities over surrounding county and private landowners. Likewise the proposed text of HR 3313 would disclaim any effect on prior water rights. But while Cohen has generally downplayed water rights on land outside the reservation proper (including the Camp 4 area), he wrote that California's new Sustainable Groundwater Management Act invites tribes to "voluntarily agree to participate" (Cal. Water Code Sec. 10720.3(c) per SB 1168) and argued that it notes federal law supersedes California law on tribal groundwater issues.

Water anxieties also surround a 2013 student note on the Santa Ynez Tribe's case in the West Northwest Journal of Environmental Law & Policy by Joanna "Joey" Meldrum. Her note led from a review of recent federal precedents to a hypothetical argument that "the [Chumash] Tribe should have the right to withdraw as much groundwater as is necessary for the Reservation and its people to survive and prosper." Some opponents of the fee-to-trust transfer were alarmed enough to cite it as a reason to oppose "government-to-government" negotiations in 2013.

The current standoff over Camp 4 is local and unique in many senses. But the outcome could also affect the ability of tribes throughout California to plan new development.

Asher Kohn is a writer and editor based in the Bay Area. He writes about land use and disuse. See http://www.asherjkohn.com.