In this case, the Third Appellate District concluded that the Governor, as an individual, is not a “public agency” for the purposes of CEQA. Therefore, the Governor’s act of concurring with the Secretary of the Interior’s findings under the Indian Gaming Regulatory Act is not a project subject to state environmental review. Picayune Rancheria of Chukchansi Indians v. Brown (Sept. 24, 2014) Case No. C074506.
The Indian Gaming Regulatory Act generally prohibits casino gambling on tribal lands acquired by the Secretary of the Interior after 1988. But the law identifies exceptions to this general prohibition. One exception requires the Secretary of the Interior to reach a determination that siting a gambling establishment on newly acquired lands would not be detrimental to the surrounding community. The governor of the applicable state must concur with the determination. In 2011, the Secretary of the Interior made this determination for a gambling establishment proposed by the North Fork Rancheria of Mono Indians (North Fork Tribe) on newly acquired land in Madera County, adjacent to SR 99. Governor Brown issued his concurrence on August 30, 2012, without preparing or considering whether to prepare an EIR.
The Picayune Tribe filed a petition seeking a writ of mandate ordering the Governor to set aside his concurrence and comply with CEQA. The Tribe argued that the Governor’s act of issuing his concurrence was equivalent to the approval of a project under CEQA. The Governor demurred, arguing that the Governor is not a “public agency” for CEQA purposes. The trial court sustained the demurrers without leave to amend, and the Picayune Tribe appealed.
The appellate court agreed with the trial court, citing the CEQA statute and the Supreme Court’s decision in Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372. In Muzzy Ranch Co., the Supreme Court stated that the CEQA process ensures that public agencies make informed decisions with environmental considerations. CEQA defines public agencies as including any state agency, board, or commission, or any local government or other political subdivision. The court noted that the list described in section 21063 is limited to governmental bodies. The governor, in contrast, is a governmental official. Additionally, the Indian Gaming Regulatory Act grants the authority to issue the concurrence to the governor of the relevant state. Therefore, in this case, Governor Brown acted and issued the concurrence as an individual. Since the Governor was acting in his capacity as chief executive officer of the State, he was not required to comply with CEQA before issuing his concurrence.
This case establishes that the Governor, when acting as an individual, is exempt from CEQA. The case touched on the issue of whether the Office of the Governor is subject to CEQA, but did not reach an answer. In this case, the federal act explicitly vested concurrence authority in the governor, as chief executive officer of the state.