2004/05/25 City Council MinutesCITY OF ROHNERT PARK CONCURRENT MEETINGS MINUTES for:
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
ROHNERT PARK FINANCING AUTHORITY
May 25, 2004
Tuesday
The Concurrent Meetings of the City of Rohnert Park for
the City Council, the Community Development Commission, and
the Rohnert Park Financing Authority met this date in
Regular Session for a regular meeting to commence at
6:00 p.m. at the Rohnert Park City Hall City Council
Chambers, 6750 Commerce Boulevard, Rohnert Park, with Mayor
Nordin presiding.
CALL TO ORDER:
Mayor Nordin CALLED the Regular Session to order at
6:00 p.m.
ROLL CALL:
Present: (5) Councilmembers Flores, Mackenzie and
Vidak- Martinez; Vice Mayor Spradlin;
and Mayor Nordin
Absent: (0) None
Staff present for all or part of the Regular Session:
City Manager.Leivo, Interim City Attorney Whelan,
Assistant City Manager Donley, Director Public Safety
Bullard, Recreation Services Manager Miller, and Senior
Planner Bendorff.
ADJOURN TO CLOSED SESSION /RECONVENE REGULAR SESSION:
Mayor Nordin adjourned Council to Closed Session to
discuss Personnel Matters. Mayor Nordin resumed Regular
Session at 7:09 p.m. and led the pledge of allegiance.
1. MAYOR'S REPORT ON CLOSED SESSION:
Mayor Nordin reported that the City reached agreements with
the Service Employees International Union (SEIU) and the
Rohnert Park Employees Association (RPEA), which will be
listed for adoption on the June 8, 2004 Council agenda. He
also reported that terms have not been finalized for the
Rohnert Park Public Safety Officers Association (RPPSOA)
and that the negotiations will continue.
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(2 )
2. SCHEDULED APPEARANCE /PRESENTATION:
Sister Cities Relations Committee - Report by Student
Junior Ambassador to Japan, Jessika Frazer: Mr. Grubler
shared opening comments and introduced Ms. Frazer, who
gave a slide show presentation entitled, "My Trip to
Japan." Ms. Frazer recounted her one -week trip to
Japan and responded to Council questions /comments.
3. STUDENT REPORTS:
1. High School - Youth Leadership of Rohnert Park via
SCAYD (Sonoma County Adult & Youth Development) with
report by Enviromental Prevention Coalition (EPC)
Representatives Anel Guzman and Michael Larvenz:
The EPC representatives (1) described their work to
recruit more youth, (2) summarized. their efforts to
work with local merchants to reduce the exposure of
youth to alcohol and tobacco advertising,
(3) discussed Rancho Cotate's new diversity group
called "Club One," and (4)thanked Council for its
support of the EPC's goals. They also shared photos
depicting how merchants place alcohol and tobacco
near chips, soda and candy. Council thanked the reps
for the coalition's efforts.
2. SSU - Sonoma State University Associated Students,
Incorporated, by James J. Reilly III, Legislative
Representative: Mr. Reilly thanked Council for the
copy of the General Plan, discussed SSU's graduation
on May 22nd, and stated that summer school starts in
two weeks. Mr. Reilly responded to Council
questions /comments.
4. UNSCHEDULED PUBLIC APPEARANCES/COMMENTS:
1. Larry Esparza, 44 Verde Circle; was recnrrnivAr� and
discussed a personal experience with racism. He
emphasized that being anti - casino does not mean that
one is anti - Indian. He also gave an update on the
recall efforts and noted a June 13th kick -off from
5:00 to 7:00 p.m. at Rancho Verde Mobilehome Park
to support the Council candidates. He indicated that
voting yes on the recall will help stop the casino.
Councilmember Flores commented that opinions are not
statements of fact and that the voters will have the
opportunity to decide who is correct.
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2. Seamus Seanachaoi, 207 Southwest Boulevard, was
recognized and urged Council to lobby on a State
and Federal level to change existing laws so that
police can do their jobs. He cited the problems
with youth at the Southwest Shopping Center and how
existing laws only allow police to give verbal
warnings and citations, which may or may not come to
the attention of the parents of the youth.
3. Tom Thunderhorse, 7553 Bobbie Way, was recognized and
expressed his support for the casino. He also noted
his support for the U.S. troops abroad and his hope
that they are welcomed when they come home from the
war. He asked the Mayor for an update on the
possibility of passing a resolution providing for a
flag on the Avenue of the Flags to honor Native
American veterans. Mayor Nordin said that staff will
be in touch with him.
4. Chip Worthington, Snyder Lane, was recognized and
SUBMITTED 14 pages of letters and information to
City Manager Leivo and Interim City Attorney Whelan,
a copy of which is ATTACHED TO THE ORIGINAL SET OF
MINUTES. He asked that citizen opposition to the
casino be published in the City's newsletter and on
its website for a second point of view. He said that
City publications should reflect that the MOU is
suspended per the opinion of Deborah Kaplan, Esq.
He cited several legal citations, and he requested
a response in writing from the City Attorney to his
documents Councilmember Flores discussed the
background of Professor Carole Goldberg, who recently
shared her opinions at the City's request to
community opposition and gaming compacts.
Councilmember Mackenzie inquired if debates during
Public Comments period on the agenda were
appropriate, and he asked the Mayor to direct Council
to listen to the public comments and respond to a
specific matter at such time as the matter comes up
on the agenda. At Council's direction, Interim City
Attorney Whelan responded to Mr. Worthington's
comment. She stated that if the MOU was a legislative
act, then an appeal would have suspended it; but the
MOU was ruled an administrative act, so the MOU is in
effect. She also commented on state compacts with
Indian tribes.
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(4 )
5. Steve Bosshard, 5769 Dexter Circle, was recognized and
noted that he represents groups trying to stop the
casino. He listed the steps that need to take place
before a casino can be built, and he urged the public
to vote "yes" on the recall in order to help stop the
casino.
6. Tony Piazza, Rohnert Park, was recognized and noted
that he is an independent investigator and a 13 -year
resident of Rohnert Park, and that he grew up in East
Los Angeles where he stood up for the Mexicans and
the Indians in the 60's and 70's. He suggested the
City try to recover the cost for the two
casino - related lawsuits, and he noted the low
attendance at a recent anti - casino meeting. He also
questioned the character of one of the
representatives opposing the casino. Finally, he
discussed recent visits to two California casinos and
the benefits to the local community in terms of
large and well trained casino police departments,
assistance to the local fire department, and the
hiring on non - tribal operations employees. Interim
City Attorney Whelan reminded speakers that this is a
forum to discuss different points of view and not to
insult other speakers.
5. PUBLIC FACILITIES FINANCE PLAN (PFFP) DRAFT:
To receive pubic comments and consider adoption of the
PFFP:
1. Staff Report: City Manager Leivo summarized the
Staff Report and called forward Mary Grace Pawson
of Winzler. & Kelly for additional comments. Staff
responded to Council questions /comments about State
transportation funds, Sonoma County Transportation
Authority (SCTA), and environmental analysis.
2. Public Comments: None.
3. Resolution for Adoption:
2004 -119 APPROVING THE PUBLIC FACILITIES FINANCE PLAN
(PFFP)
Council Motion /Discussion /Vote:
Upon MOTION by Councilmember Flores, seconded by
Councilmember Vidak- Martinez, and UNANIMOUSLY APPROVED,
reading was waived and Resolution 2001 -119 was ADOPTED.
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
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6. WEED ABATEMENT:
Consideration to abate weeds that are growing within the
City boundaries, which pose a fire hazard and health
menace and are otherwise noxious and dangerous and cause
a public nuisance:
1. Staff Report: City Manager Leivo shared the contents
of the Staff Report. Councilmember Flores inquired
whether the lot on the northeast corner of Camino
Colegio and East Cotati Avenue had been declared a
wetlands. Staff indicated that they will make sure
the mowing is appropriate.
2. PUBLIC HEARING for property owners having objections
to the proposed destruction or removal of hazardous
weeds: Mayor Nordin opened the Public Hearing at
8:16 p.m. There being no members of the public
interested in speaking on this matter, Mayor Nordin
closed the Public Hearing at 8:16 p.m.
3. Resolution for Adoption:
2004 -120 ORDERING THE CITY MANAGER TO ABATE NUISANCES
EXISTING WITHIN THE CITY
Council Motion /Discussion /Vote:
Upon MOTION by Councilmember Mackenzie, seconded by
Councilmember Vidak- Martinez, and UNANIMOUSLY APPROVED,
reading was waived and Resolution 2001 -120 was ADOPTED.
7. SONOMA COUNTY TOURISM BUSINESS IMPROVEMENT AREA (BIA):
Consideration of consenting to inclusion within the
Sonoma County BIA and authorizing collection and
remittance of assessments from lodging establishments:
1. Staff Report: City Manager Leivo summarized the
contents of the Staff Report, and Brad Calkins,
General Manager of the Vineyard Creek Hotel, and
Ted Sakai, General Manager of the Doubletree Hotel,
responded to Council questions /comments.
2. Economic Development Subcommittee report and
recommendation: Councilmember Vidak- Martinez
commented on her efforts working with the Sonoma
County Tourism Committee, and Councilmember Flores
expressed his support for the assessments.
3. Public Comments: None.
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(6 )
4. Resolution for Adoption:
2004 -121 APPROVING THE CITY OF ROHNERT PARK'S INCLUSION
WITHIN THE SONOMA COUNTY BUSINESS IMPROVEMENT
AREA AND AUTHORIZING COLLECTION AND REMITTANCE
OF ASSESSMENTS FROM LODGING ESTABLISHMENTS
Council Motion /Discussion /Vote:
Upon MOTION by Councilmember Vidak- Martinez, seconded by
Councilmember Flores, and UNANIMOUSLY APPROVED, reading
was waived and Resolution 2001 -121 was ADOPTED.
8. FIRE SERVICES DIVISION 2004 FEE SCHEDULE:
Consideration of adding a fee for fireworks education
and compliance to the 2004 fee schedule:
1. Staff Report: City Manager Leivo shared the
contents of the Staff Report. Councilmember
Vidak- Martinez expressed concern about sufficient
notice to non - profit organizations, and she discussed
the why the fee schedule is counter - productive. Vice
Mayor Spradlin Councilmember Flores and Mayor Nordin
commented on how non - profits can recover the costs
and greater enforcement responsibilities for Public
Safety -Fire Services Division.
2. Public Comments: None.
3. Resolution for Adoption:
2004 -122 ADOPTING THE 2004 DEPARTMENT OF PUBLIC SAFETY -
FIRE SERVICES DIVISION FEE SCHEDULE
Council Motion /Discussion /Vote:
Upon MOTION by Vice Mayor Spradlin, seconded by
Councilmember Flores, and APPROVED 4 -1 with Councilmember
Vidak- Martinez dissenting, reading was waived and
Resolution 2001 -122 was ADOPTED.
9. RECREATION DEPARTMENT FEES FOR FISCAL YEAR 2004 -05:
Consideration of proposed fee adjustments for recreation
facilities and programs:
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(7 )
1. Staff Report: City Manager Leivo referred to
Recreation Services Manager Miller, who shared the
contents of the Staff Report. Councilmember
Flores REQUESTED that staff consider giving a rate
break to senior citizens. Staff indicated that
they can make such an adjustment.
2. Public Comments: None.
3. Resolution for Adoption:
2004 -123 AUTHORIZING AND APPROVING ADJUSTMENTS IN FEES
FOR VARIOUS RECREATION FACILITIES AND PROGRAMS
Council Motion /Discussion /Vote:
Upon MOTION by Vice Mayor Spradlin, seconded by
Councilmember Flores, and UNANIMOUSLY APPROVED,
reading was waived and Resolution 2001 -123 was ADOPTED.
Councilmember Vidak- Martinez referred to
Resolution 2004 -129 on the Consent Calendar, approving
adjustments to miscellaneous recreation part -time pay rates
and ranges, and she noted that additional funds go out as
soon as fee increases are made.
10. VACANT LAND PURCHASE:
Consideration of Vacant Land Purchase Agreement for an
18 -acre parcel located immediately north of the City
Limits, outside the Urban Growth Boundary and in a
community separator, APN 045 - 041 -018:
1. Staff Report: City Manager Leivo summarized the
contents of the Staff Report and responded to Council
questions /comments about the mitigation plan.
2. Public Comments: None.
3. Resolution for Adoption:
2004 -124 AUTHORIZING AND APPROVING A VACANT LAND PURCHASE
AGREEMENT FOR AN 18 -ACRE PARCEL LOCATED
IMMEDIATELY NORTH OF THE CITY LIMITS
Council Motion /Discussion /Vote:
Council discussion continued regarding the mitigation plan.
Upon MOTION by Councilmember Mackenzie, seconded by
Councilmember Vidak- Martinez, and UNANIMOUSLY APPROVED,
reading was waived and Resolution 2001 -124 was ADOPTED.
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(8 )
11. COMMISSION /COMMITTEE /BOARD MATTERS:
1. Bicycle Advisory Committee - Consideration of
appointment to fill vacancy with a two -year term to
expire December 31, 2004:
Council action to fill vacancy due to acceptance of
Gary Jelinek resignation: Mayor Nordin indicated
that he has received no applications, and he
DIRECTED STAFF to continue advertising the position.
2. Cultural Arts Commission - Consideration of
appointment to fill vacancy with a four -year term to
expire December 31, 2006:
Council action to fill vacancy due to acceptance
of resignation of Crissey Cossey: Vice Mayor
Spradlin indicated that she has received no
applications, and Mayor Nordin DIRECTED STAFF to
continue advertising the position.
3. Senior Citizens Advisory Committee - Consideration of
proposal to disband:
a. City Council Liaison Report: Councilmember Flores
reviewed the contents of his Meeting Report.
b. Council Discussion /Direction /Action: Council
CONCURRED with Councilmember Flores' proposal to
maintain the Senior Citizen Commission as outlined
in his report entitled, "Senior Citizen Issue
Awareness for the City Council."
12. ANNUAL STATUS REPORT ON THE GENERAL PLAN:
1. Presentation by Ron Bendorff, Senior Planner: Senior
Pla7'1 Y1er Bender f f r e _r Vved the contents Of t11C Stdf f
Report, and staff responded to Council
questions /comments about staying in line with the
General Plan and about working with the City of
Cotati on transportation issues.
2. Council Discussion /Action: Upon MOTION by
Councilmember Flores, seconded by Councilmember
Mackenzie, a motion to receive and file the Annual
Status Re -port on the General Plan was UNANIMOUSLY
APPROVED.
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(9 )
13. ANNUAL POLICY REVIEW OF THE GROWTH MANAGEMENT PROGRAM:
1. Presentation by Ron Bendorff, Senior Planner: Senior
Planner Bendorff reviewed the contents of the Staff
Report.
2. Council Discussion /Action: Council commended Senior
Planner Bendorff for the report and expressed a
desire to see the affordable housing percentage
increased. Upon MOTION by Councilmember Mackenzie,
seconded by Councilmember Flores, a motion to receive
and file the Annual Policy Review of the Growth
Management Program was UNANIMOUSLY APPROVED.
Councilmember Vidak- Martinez left the Council chambers at
9:10 p.m. and returned at 9:11 p.m.
14. COUNCIL COMMITTEE AND /OR OTHER REPORTS:
1. Sonoma County Remote Access Network (RAN), May 12,
2004 meeting: Vice Mayor Spradlin gave a brief
overview of RAN, and she referred Council to the
meeting agenda. She noted that Exhibit D, "Board
Direction on Future Project Funding," had been
accepted and approved.
2. Mayors' & Councilmembers' Association, May 13, 2004
meeting: Mayor Nordin reported from the executive
part of the meeting that Mike Healy was appointed
to the SMART Board. Councilmembers shared their
perspectives on the meeting and suggested that the
next meeting of this type include special districts,
be held on an annual basis, and function more like
a working group.
3. League of California Cities General Assembly,
May 13, 2004 meeting: Councilmember Mackenzie
reported that he voted "aye" as directed by Council
regarding a matter pertaining to League policy.
4. Garbage Subcommittee, May 14, 2004 meeting:
Councilmember Flores reported on the meeting with
Rick Powell, General Manager of Rohnert Park
Disposal, to discuss RP Disposal's plans to build
a $20 million recycling facility. Councilmember
Flores indicated that the Garbage Subcommittee
would like to review further options before
returning to Council with its recommendation.
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(10)
5. Economic Development Subcommittee, May 14, 2004
meeting: Councilmember Vidak- Martinez emphasized
the need to start agendizing discussions about the
Green Music Center, and she indicated that plans
have been made to set up a luncheon between staff and
the subcommittee to discuss the Green Music Center.
Councilmember Flores spoke about construction of the
Green Music Center, and Councilmember Mackenzie
toucaieu oil possible future annexation of SSU and how
sales tax dollars would be allocated. Councilmember
Mackenzie REQUESTED that Council be informed if there
are discussions going on with the County regarding
these issues.
6. Other informational reports, if any:
a. Tiger Salamander meeting: Mayor Nordin reported
that he and City Manager Leivo went to last
night's meeting to show the City's support.
b. Russian River Watershed
Councilmember Mackenzie
water management plans,
be sharing a report at
this Thursday.
15. COMMUNICATIONS:
Association:
discussed water resources/
and he stated that he will
the Association's meeting
Communications per the attached outline were brought to the
attention of Council. No communications were discussed.
16. MATTERS FROM /FOR COUNCIL:
1. Schedule of Events and Meetings. Mayor Nordin
briefly reviewed the list provided and staff noted
the events that each Councilmember planned to attend.
2. City Council Agenda Forecast: Councilmember
Vidak- Martinez inquired why reports regarding
the Special Enforcement Unit are not scheduled for the
second Council meeting of each month. She also asked
if the vehicles had been ordered. City Manager Leivo
indicated that there is a special presentation being
planned in conjunction with the funding source for the
Special Enforcement Team and that details of said
presentation will be shared at the next Council
meeting. Councilmember Flores thanked Interim City
Attorney Whelan for her report that the MOU is still
in effect.
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(11)
4. Other informational items, if any:
a. Casino matters: Mayor Nordin reviewed written
comments regarding casino - related matters. He
called attention to the serious accusations
regarding the Council and the City Manager, and
he spoke about the City's budgetary struggles.
He then discussed (1) the sequence of events that
led to the City's entering into an agreement with
the Graton Rancheria, (2) the court's rulings per
the MOU and the cost of said litigation, and (3)
various aspects of the MOU in terms of the
distribution of the funds. He emphasized that the
Council has always had the best interests of the
City in mind. Councilmember Flores commented on
how the City is following important procedural
steps as the casino is a project that will more
than likely happen.
FOR THE RECORD, Councilmember Vidak- Martinez stated that
Mayor Nordin was reading from a multi -page speech and that
there is no casino item under "Matters From /For Council."
She indicated that she has never seen this before and that
a new precedent has been set. She inquired whether any
Councilperson can give a speech during the "Other
Informational Items" portion of "Matters from /for Council."
Councilmember Mackenzie noted that a prepared
statement such as Mayor Nordin's should have been
agendized, if agreed by Council, on an agenda item
for Casino and Legal Matters. Interim City
Attorney Whelan stated that items are placed on
the agenda for the public's information, and
she recommended that Council contact City Manager
Leivo regarding items to be agendized. She also
questioned Council if they want a standing casino
item on the agenda.
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(12)
17. CITY MANAGER'S REPORT:
1. FIGR Hotel /Resort /Casino Opinion from Professor
Carole Goldberg, UCLA School of Law: City Manager
Leivo summarized the opinions provided to him at his
request by Professor Goldberg pertaining to community
opposition. Councilmember Flores SUGGESTED that
copies of Professor Goldberg's opinion be sent to
Clark 14ason at Tile Press Democrat and Jud Snyder at
The Community Voice. Councilmember Mackenzie
expressed his position that Council follow protocol,
and he REQUESTED that if a Councilperson prepares
a formal speech, copies be given to the other
Councilmembers so that they can prepare rebuttals.
2. Human Rights Seminar at Doubletree Hotel on May 15,
2004: City Manager Leivo shared brief comments
on his perspective of the meeting.
3. Other informational items, if any:
a. Cell phone tower in M Park: City Manager Leivo
discussed the growing criticism over this issue
in terms of health risks and disruption of
satellite signals. He indicated that staff has
been trying to have meetings with neighborhood
residents. He also stated that the matter will
be considered by the Planning Commission this
Thursday.
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18. CONSENT CALENDAR:
Mayor Nordin asked if there were any questions about the
matters on the Consent Calendar, which were explained in
the City Manager's Council Meeting Memo.
A. APPROVAL OF CONCURRENT MEETING MINUTES FOR:
REGULAR CONCURRENT CITY MEETINGS - MAY 11, 2004
B. APPROVAL OF BILLS /DEMANDS FOR PAYMENT CONCURRENTLY FOR:
CITY OF ROHNERT PARK /CITY COUNCIL IN THE AMOUNT OF
$1,435,892.63
COMMUNITY DEVELOPMENT COMMISSION IN THE AMOUNT OF:
$61.35
- - - - -C . ACCEP'�211TG CASH / INVES'NlEl�T'L'S REPORT FOR MONTH
MARCH 31, 2004 CONCURRENTLY FOR:
CITY OF ROHNERT PARK /CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
ROHNERT PARK FINANCING AUTHORITY
*City Council /Community Development Commission/
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City of Rohnert Park *CONCURRENT MEETINGS MINUTES
May 25, 2004 Page(13)
D. RESOLUTIONS FOR ADOPTION:
2004 -125 PROCLAIMING WEDNESDAY, JUNE 2, 2004 AS "COMMUNITY
WATERSHED CLEAN -UP DAY" (FORMERLY "CLEAN UP
COPELAND CREEK DAY ")
2004 -126 HONORING JUNE 14, 2004 AS "NATIONAL FLAG DAY" AND
JUNE 13 -19, 2004 AS "NATIONAL FLAG WEEK"
2004 -127 EXPRESSING APPRECIATION TO JENNIFER WONG, SONOMA
STATE UNIVERSITY ASSOCIATED STUDENTS, INC.
2004 -128 AUTHORIZING AND APPROVING AMENDMENT NUMBER ONE TO
THE AGREEMENT WITH HECTOR CORREA FOR ARTISTIC
DIRECTOR SERVICES
2004 -129 AUTHORIZING AND APPROVING ADJUSTMENTS TO
MISCELLANEOUS RECREATION PART -TIME PAY RATES AND
RANGES
2004 -130 AUTHORIZING THE MAYOR TO EXECUTE DEED GRANTING
PACIFIC GAS AND ELECTRIC COMPANY EASEMENT RIGHTS
ON THE OAK VIEW SENIOR APARTMENTS (KISCO) SITES
(APN 159 - 460 -025, 026 AND 027)
2004 -131 APPROVAL OF LETTER PROPOSAL WITH BAECHTEL HUDIS,
INC. FOR ENGINEERING SERVICES AND AUTHORIZING
FINANCE DIRECTOR TO AMEND FY 2003 -04 CAPITAL
IMPROVEMENT PROGRAM BUDGET TO INCLUDE PROJECT
ENGINEERING COSTS
2004 -132 APPROVAL OF TASK ORDER NO. 2004 -07 WITH WINZLER &
KELLY ENGINEERS FOR CONSTRUCTION MANAGEMENT
SERVICES OF CITYWIDE PAVEMENT SLURRY SEALS
PROJECT NO. 2003 -18
2004 -133 AWARDING THE CONTRACT TO NORTH BAY CONSTRUCTION
FOR THE COMMERCIAL WATER METERS INSTALLATION
PROJECT NO. 2003 -03
Upon MOTION by Councilmember Flores, seconded by
Councilmember Vidak- Martinez, the Consent Calendar, as
outlined in the agenda, was UNANIMOUSLY APPROVED.
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19. PUBLIC COMMENT:
Members of the public desiring to speak were invited to
come forward. No members of the public responded.
*City Council /Community Development Commission/
Rohnert Park Financing Authority
City of Rohnert Park *CONCURRENT MEETINGS MII\NTES
May 25, 2004 Page(14)
ADJOURNMENT:
There being no further business, Mayor Nordin ADJOURNED the
meeting at 10:07 p.m.
Katy Leonard
Certified Shorthand Reporter
CSR No. 11599
ory A. or in
Mayor
of Rohnert Park
*City Council /Community Development Commission/
Rohnert Park Financing Authority
P i ct:fl-c-Le-k % -4-v o Y-4
VV, I " t._ %.e s .
May 25, 2004
Carl Leivo
City Manager
Dear Carl:
J en
r °'I to `. -PW�!ex -e- -Ae ..L•( y-
I am formally requesting that you allow citizen's opinions in the weekly city newsletter
and on the city website as second point of view regarding city issues. In interest and
fairness, differing points of view should be expressed in all city publications. Only in an
open environment can there be a fair exchange of ideas. If only one point of view is
presented, it appears that the city is promoting the casino as a foregone conclusion.
It should also be expressed in city publications that the MOU is suspended. Per Deborah
Caplan, "As Your Honor knows, once — if a petition is circulated and 10% of the
registered voters sign it, it suspends it immediately until there's an election, so the impact
of the referendum can be quite substantial and significant on a local government."
(Transcript p. 12:24 -28, speaking generally about matters subject to referendum as part of
argument why this MOU should not be subject to referendum.)
In my opinion, the city manager and city council are using city meetings and publications
to be a bully pulpit promoting the casino and for political purposes regarding the recall. It
appears that the city manager has become a lobbyist for the casino and Indian gaming and
in my opinion it is a misuse of his position.
Sincerely yours,
JrN
�, -r,W Ja ° ,'
Chip Worthington
May 25, 2004
City Council of Rohnert Park
Dear City Council:
I certify that the following letter was sent to me from a former official of the BIA after I
requested an analysis of Professor Goldberg's opinion.
Chip, here is my quick analysis of her position:
I . While I do not disagree that the Secretary "shall" take the land into trust pursuant
to the language of the bill, as I have stated before, it does not say "when." While
the bill does state "after the property is conveyed or otherwise transferred to the
Secretary" as a definition of `when' there is nothing short of a Court Order
requiring that she make her decision within any specified time period. The BIA
process calls for the Regional Office to prepare the fee to trust package, which
includes all the environmental analysis necessary for the title transfer, and then it
is reviewed by the Gaming Office in DC before it is transferred to the Secretary
for final decision. No Court in the Country would interfere with a Cabinet
Secretary's internal procedures unless those procedures "abused the discretion"
granted the Secretary to carry out her /his authority. It would be years before a
Court would make such a finding and then even more years if the Secretary chose
to fight that finding. No Court would find that the Secretary abused her discretion
by being very thorough and deliberative in her analysis.
2. While I generally agree with Ms. Goldberg's analysis on the first question, I think
her analysis of the second question misses the point. While the Governor is
certainly required to negotiate with any Tribe for a Compact, there is absolutely
nothing that requires him to reach an agreement. Furthermore, while Ms.
Goldberg is correct in asserting that the terms of the Compact are to be negotiated
between the Governor and the Tribe, would not the impact on the Community be
one of those considerations? No Court would compel a Governor to execute a
Compact if he did not believe that Community issues were resolved to his
satisfaction. (There is even a Constitutional argument that the State can not be
compelled by the federal government to execute a Compact — example — the
Seminole case in FL.) Simply stated, while the Governor is required to negotiate
in good faith there is nothing in IGRA that requires him to execute an agreement.
If the Governor believes the issues are pertinent to the operation of the casino he
most certainly has a right to have them addressed. It would be a very difficult
argument to make that the Governor can not consider Community impact.
Conclusion: Community opposition is a significant factor in a Compact with the State.
Chip Worthington
CHIP: HERE'S WHAT AG'S SAY ON SECTION 20: I MOVED THIS UP FROM BELOW
4. Change in use for gaming purposes. Also discussed in both the November 12, 1999, and March
7, 2001, letters, was the fact that the preamble to the proposed rule (April 1999) set forth the
Department's position that any land acquired in trust after October 17, 1988 (the effective date of
the Indian Gaming Regulatory Act), could not be used for gambling without prior compliance
with Section 20 of the Act. That section generally prohibits gaming on any newly acquired lands
with certain exceptions, such as when certain secretarial findings are made and there is
gubernatorial concurrence with those findings. The preamble to the proposed rule stated:
If a tribe applies under these regulations to have title acquired in trust for a non -
gaming purpose, and then at a later date decides that it would like to conduct
gaming on that parcel, it will be authorized to engage in such gaming only if it
complies with the requirements of Section 20 of IGRA. In other words, to game on a
parcel of trust land acquired after October 17, 1988, (i.e., the date of passage of
IGRA), the tribe must submit to the same Section 20 analysis and obtain the same
gubernatorial consent as would have been required if the parcel were originally
taken into trust for the purpose of gaming.
Again, we observe that the statement in the April 1999 preamble should be included in the text of
the rule itself. As we said in November 1999, it substance should be recited in the "regulations so
that it is part of the Federal Register, and ultimately, the Code of Federal Regulation, rather than
just a statement of intent...." While the Department has promulgated a proposed rule governing
acquisition of land in trust for gaming purposes, 65 Fed. Reg. 55471 (Sept. 14, 2000), that rule has
not been finalized and, in any case, it serves to strengthen the Department's position to restate its
view in this published rule. Indeed, the Department should unequivocally articulate the
requirement, in the form of a final, binding rule relating to land in trust acquisitions generally,
that Section 20 of IGRA governs the use of lands acquired after October 17, 1988, for gaming
purposes, including, where applicable, the requirement of secretarial findings and gubernatorial
concurrence. Therefore, we recommend an amendment to include the relevant language of the
preamble of the original proposed rule into the text of the current published rule
A Communication From the States
5/25/04
of
Alabama, Alaska, Arizona, Colorado, Connecticut, Florida,
Idaho, Indiana, Kansas, Louisiana, Michigan, Mississippi, Missouri,
Nevada, New Jersey, New Mexico, North Dakota, Ohio,
Rhode Island, South Dakota, Utah, Vermont, and Washington
June 15, 2001
The Honorable Gale Norton
Secretary of the Interior
Department of the Interior
1849 C Street N.W., Rm. 6151
Washington, DC 20240
Re: Comments on published rule concerning Acquisition of Title to Land in Trust; Federal
Register Notice, 66 Fed. Reg. 19,403 (April 16, 2001)
Dear Secretary Norton:
This letter is in response to the April 16, 2001, Notice in the Federal Register seeking comments on the
final rule published January 16, 2001, 66 Fed. Reg. 3452 ( "Notice "), regarding acquisition of title to
land in trust for Indian tribes. The Notice temporarily delays the effective date of the final rule and
seeks comments on whether the rule should be amended in whole or in part or withdrawn in whole or in
part. 66 Fed.Reg. 19,403 (April 16, 2001).
State Attorneys General welcome the opportunity to address this matter. Ultimately, if a rule is adopted,
we urge the Department to adopt one which encourages a positive and constructive dialogue between the
federal, state and tribal governments, based on consultation, cooperation and communication, one that
serves to accommodate the important interests of all the governments involved. States recognize the
need for tribes to acquire land within or near their reservations for certain key tribal governmental
purposes as set forth by the Congress and do not oppose that interest. However, any process designed to
acquire the land should be within the bounds of state and federal law and the Congressional enactments
authorizing rules in this area, as well as fair, thorough and fully cognizant of the interests of state and
local governments. To that end, we specifically recommend amending the rule in part and withdrawing
certain elements of it altogether, as discussed below.
Over twenty Attorneys General set out their detailed comments with regard to the final regulation in a
letter dated March 7, 2001. Additionally, the National Association of Attorneys General forwarded
comments, dated November 12, 1999, on the rule when it was first proposed. The comments made in
those letters are still highly germane and express the serious concerns of the state Attorneys General
concerning this rule. For your convenience, we are attaching both sets of earlier comments to this
letter. This letter sets forth some general propositions and then suggests specific amendments, roughly
in order of their importance to the states.
A. Need for collaborative problem solving approach
5/25/04
We note at the outset that the rule fails to promote important values of consultation, cooperation and
communication with the state and local governments on matters that deeply and significantly affect their
sovereignty, jurisdiction, environment and general welfare. These values were highlighted in the
November 12, 1999, letter, where the Attorneys General suggested a collaborative problem solving
approach, as well as a process for the Department to recognize and follow cooperative agreements
between states and tribes regarding acquisition of land in trust. The Attorneys General reaffirm the
approach suggested in the November 12, 1999, letter. There we urged a collaborative problem solving
approach whenever proposed acquisitions present serious jurisdiction and infrastructure issues or where
a State or local community has objected.
We also suggested in that letter that all significant applications should mandate that the Secretary of
Interior, upon the request of a political subdivision of the State and early in the decision making process,
convene a meeting between tribal representatives and the commentators, cooperatively to address
potential adverse impacts. The parties should be required to come together to attempt to work out
solutions to identified jurisdictional and infrastructure problems and changes in administration arising
from the trust land acquisition. We noted that the United States has long experience with this kind of
process in its other areas of negotiated rulemaking, and for the best and long term interests of all the
stakeholders, should include it in all trust acquisition applications, where requested by an interested
party.
Additionally, we suggested the rule provide for a fast -track approval process for tribes that work out
potential differences with potentially affected communities in advance of submission of an application
to take lands into trust, whether on or off reservation. Inclusion of such a provision would reduce Bureau
of Indian Affairs workload significantly, reduce conflict between tribes and their neighbors and provide
a positive incentive for tribes by sharply reducing the often - lengthy review processes which can occur in
even relatively simple applications. A simple approach would be to provide that if a tribe submits a
consent by the Governor of the state to a taking into trust, together with a copy of an agreement between
the tribe and the state addressing and resolving potential jurisdictional issues, the B.I.A. would review
the agreement for conformance to its fundamental legal requirements and approve the application within
a stated period of time, such as 60 days from the application.
B. Need for a third party neutral hearing officer
Also, as a preliminary matter, the Attorneys General urge the secretary to consider integrating into the
rule a process whereby a neutral hearing examiner is used to resolve disputed requests, if a collaborative
or negotiated effort fails to resolve disputed issues. The Department should invoke such authority as it
may have under 25 U.S.C. §§ 2 and 9, and set out a detailed, efficient means of handling such disputes,
employing a neutral hearing examiner. As we stated in the March 7, 2001, letter, the institutional
advocacy of Superintendents, Regional Directors and the Assistant Secretary of Indian Affairs naturally
makes it difficult for those officers to render decisions that will be perceived as neutral and objective.
Neutral hearing officers would help to re- establish and preserve public confidence in the process. A
neutral hearing examiner would have the duty of setting up a hearing to allow the applicant, and the
objectors, to set forth evidence on any contested facts. Allowing the testing of all the facts is an
indispensable part of this process.
Additionally, in such situations, a hearing officer should be able to evaluate taking a parcel of land into
trust on or off reservation. As we noted in our March 7, 2001, letter, the burden of proof and of
persuasion should be on the applicant. The applicant should be required to demonstrate that the
acquisition is consistent with the purposes of 25 U.S.C. 465, as discussed in our March 7, 2001, letter,
and to demonstrate how the acquisition of land in trust will benefit the applicant. The application
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nonetheless should not be approved if the approval would result in significant (not severe) negative
harm to the local government or to the environment. In making this determination, the hearing examiner
should be charged with making a comprehensive examination of the ability of the existing units of local
government to fulfill their responsibilities on any reduced or remaining tax base. A neutral hearing
officer should be aware that the losses from otherwise minor acquisitions of land in trust may create
insurmountable burdens for the local unit of government. Similarly, with regard to disputed off -
reservation acquisitions, the hearing officer should operate from a rule that provides a rebuttable
presumption against acquisition and provides that this presumption may be overcome in very limited
circumstances. The Attorneys General believe that, failing a negotiated agreement, a neutral hearing
officer will guarantee that state and local interests will be fully and fairly considered.
C. Amend standards for evaluating an acquisition
As discussed in the March 7, 2001, letter, the standard for determining whether land should be taken
into trust should be revised. Significantly for the states and local governments, the published rule
provides in section 15 1. 10 that the Secretary will not accept transfer of title into trust for land inside a
reservation or inside an approved TLAA if the approval of the acquisition will result in "severe"
negative impact to the environment or "severe" harm to the local government. Evidence of such harm
must be clear and demonstrable and supported in the record. § 151.10. For acquisitions off - reservation
(or outside a TLAA), the standard is reduced to "significant" harm to the local government, where the
harm is supported by the "application record." § 151.14(b).
On the other hand, approval is the course of action for an on- reservation (or inside a TLAA) acquisition
if the acquisition "facilitates" any of several open -ended tribal purposes, or, for an off - reservation (or
outside a TLAA) acquisition, if it is "necessary" for those purposes and provides "meaningful" benefits
that outweigh demonstrable harm to the community. § 151.14(a). Again, we note an imbalance in the
standards set forth in the rule. These standards favor acquisition and discount the interests of state and
local government. Further, these standards are to be employed by Superintendents, Regional Directors
and the Assistant Secretary of Indian Affairs, all of whom have an institutional loyalty and obligation to
the tribes under the federal government's trust obligation. This point further emphasizes the need to
have a consultative and collaborative process, or one which employs a neutral hearing officer to evaluate
the facts.
The Attorneys General recommend amending these sections to provide more equitable standards for
evaluating acquisitions both on and off reservation. Any land removed from a state or local
government's jurisdiction, environmental and zoning controls and taxing authority should at a minimum
be "necessary" to specific tribal purposes, on or off reservation. Off - reservation acquisitions should
require a higher standard, such as "compelling." This preserves the two- tiered approach this rule
endeavors to establish - on- reservation acquisitions should be easier to accomplish than off reservation
ones - but not by lowering the necessity standard to a mere" facilitating" of tribal purposes.
Similarly, the standards for evaluating impact on local governments should be amended, as they are
onerous and unfair. The Secretary will only be able to hear such evidence from state and local
government comments in a 30 -day period (for on- reservation acquisitions) and a 60 -day period (for off -
reservation acquisitions). Obviously, the tribal applicant is unlikely to provide such information. Aside
from the inadequate period of time to respond with comments, the standards require clear and
demonstrable evidence of a "severe" negative impact to the environment (again, state and local
government will be the only likely voice to address this area) and "severe" (on- reservation) or
"significant" (off - reservation) harm to the local community. The kind and degree of proof on the two
sides of the equation is not the same. In some cases, the tribe need only show a "meaningful benefit." A
5/25/04
local unit of government, however, is required to show a "demonstrable harm." This difference in the
standard of proof is inequitable.
We recommend amending the rule to provide for different standards to be employed by the Department
in evaluating a request. If there is an objection from the state or local government, it should trigger a
consultation requirement for the Department to meet with those governments and seek to negotiate a
cooperative agreement. If the matter cannot be resolved through a cooperative agreement, the
Department or any neutral hearing officer should deny an application for an acquisition, on or off
reservation, whenever it finds any "significant" harm to the environment or to a state or local
community will occur.
D. Withdraw the provision for Tribal Land Acquisition Areas (TLAA)
More concern has been aroused by the provision for a Tribal Land Acquisition Area (TLAA) than any
other feature of the rule. The notion that the federal Secretary can designate wide swaths of land as a
TLAA with little or no guidance and then use a lower standard to acquire land in trust within the
designated area is understandably intimidating to state and local governments. As discussed in the
March 7, 2001, letter, the provisions in the rule allowing for a TLAA are not legally authorized. There
is no authority in the text of 25 U.S.C. § 465, or elsewhere, for such an entity. We also noted in the
March 7 letter that the statutory authorities for land consolidation on reservations do not support the
TLAA concept.
Moreover, as we noted in the March 7 letter; the TLAA provision provides vague and limitless standards
for the Secretary in agreeing to designate a TLAA, and in doing so, it presents a most serious flaw - - it
allows for lower standards of approval comparable to on- reservation acquisitions. It bears repeating
here what we said in March:
Under the provisions of the final rule, a tribe with a TLAA will never need to meet the
heightened standard for off -reservation acquisitions. Instead, a tribe may simply
designate large TLAAs and enjoy the benefits of the relaxed TLAA acquisition standard
when it chooses to acquire off - reservation lands. We respectfully submit that, if legal
authority can be discovered to support the TLAA idea, trust land acquisitions within such
areas be required to proceed as off - reservation acquisitions (which they most certainly
would be).
Further, the rule, as originally proposed, 64 Fed. Reg. 17574 (April 12, 1999), provided for a TLAA
only for a tribe that was "reservationless" or was, in the words of the legislative history of the 1934
Indian Reorganization Act, "landless." See March 7, 2001 letter. The now - published rule removes even
that purpose and substitutes a standard whereby a TLAA may be created for a tribe which does not have
a reservation, does not have trust land, or "has a trust land base which is incapable of being. developed in
a manner that promotes tribal self - determination, economic development, and/or Indian housing." That
change certainly dooms the provision, in our view.
Furthermore, the expansion of the TLAA concept for any tribe which may indeed have a reservation or
trust land, but which then asserts that it is inadequate for self- detdrmination or economic development,
goes far beyond the original concept of a TLAA. Instead, it sets up a process for an "on- reservation"
acquisition for what is really an "off- reservation" acquisition, with especially significant implications for
the state's environmental controls, land use laws, jurisdiction, tax revenues, gaming policies and general
welfare.
5/25/04
V
In our November 12, 1999, letter, we also strongly objected to the loose and vague standards to be
employed in creating a TLAA. A TLAA, once created, would have the effect of making any acquisition
within its borders much easier to accomplish, as if it were an on- reservation acquisition. We also
objected to the inadequate and significantly flawed provisions for notice to the state and local
governments and the lack of full consideration of those comments by the Secretary. Importantly, we
noted that the creation of a TLAA is potentially disruptive of state gaming policies because, under the
Indian Gaming Regulatory Act ( "IGRA "), the acquisition of land for gaming purposes for an initial or
restored reservation is one of the exceptions from the general prohibition on gaming on off - reservation
lands acquired after the enactment of IGRA in 1988. In such situations, the TLAA concept allows a
side - stepping of any significant scrutiny of potential gaming activities in the designation of a TLAA.
When the time comes for the Secretary to "pick" out a location within the TLAA, the state may find a
subsequent acquisition of land in trust will involve gaming activities, when no meaningful review of the
matter by the state and local governments can occur.
As the TLAA concept is not supported by any statute and the TLAA provisions in the published rule are
highly flawed, the Attorneys General urge the Secretary to withdraw the entire provision and reference
to it throughout the rule.
E. Amend the Notice and Comment Requirements
As discussed in both the November 12, 1999, and March 7, 2001, letters, the provisions providing for
notice and opportunity to comment by the state and local governments are inadequate. For on-
reservation lands, the notice will provide scant information from the application and invite comments
within 30 days from the date of receipt; for off - reservation lands, the comment period is 60 days. We
addressed this matter in detail in the November 12, 1999, letter, suggesting in good faith various
alternative methods of notifying state and local governments, recognizing the need to redact religious
and sacred site information, and similar matters, none of which were taken into account in the published
rule. (Indeed, the prologue summary to the published rule does not even account for the states having
submitted views on this issue.)
The rule should be amended to require all information submitted by applicants be sent to the state and
local political subdivisions for all discretionary as well as "mandatory" acquisitions. Religious and
sacred site information should be redacted, of course, to protect the religious rights of tribes and their
members. All other information should be provided, notwithstanding the FOIA, the Privacy Act, and
the Trade Secret Acts, given the recent decision in Department of Interior and Bureau of Indian Affairs
vs. Klamath Water Users Protective Association, No. 99 -1871 (March 5, 2001). Although section 151.5
provides that the request will be available for review in local BIA offices, this is insufficient to provide
the interested parties with meaningful notice. On- reservation acquisitions can present equally difficult
transition problems for highly checkerboarded reservations, and thus may require additional time to
evaluate. The matter is discussed more fully in the November 12, 1999, letter.
Additionally, 30 days is simply an inadequate time for states and local governments to respond to a brief
notice of the application for an on- reservation acquisition. We believe section 151.5 should be
amended to allow state and local governments in which the land is located at least 60 days to comment
for on- reservation acquisitions. If these interested parties are required to request the full application and
supporting information from the local BIA office, this period should run from the time the entire
application is received.
5/25/04
F. Additional suggested amendments
As more fully set forth in the November 12, 1999, letter, the following areas in the published rule
deserve amendment. While that letter responded to the proposed rule, the published rule did not make
the changes urged by the Attorneys General.
1. 4n- reservation applications under section 151.9 should include the same information as off-
reservation applications in section 151.12, particularly as it relates to descriptions of impact on public
safety, land use, fire protection, law enforcement (which may differ between P.L. 280 and non -P.L. 280
reservations), emergency medical services, flood protection, traffic, sanitation, water, supplies (including
impact on the remaining non -Indian community of the tribal taking of water), utilities and tax
collection. If the tribal and local governments develop a cooperative agreement and resolve these
matters before the application, the rule should allow for an abbreviated on- reservation application. The
Department cannot make the presumption that the tribe exerts jurisdiction over all on-reservation lands,
as its jurisdiction may be quite limited on non -Indian lands on the reservation. Strate v. A -1
Contractors, 520 U.S. 438 (1997); Atkinson trading Co. v. Shirley, _U.S._ (May 29-; 2001). Thus,
many of the same issues facing an off - reservation acquisition pertain to non - Indian on- reservation lands
that may be acquired in trust.
2. Definition of "reservation "in section 151.2. In both the November 12, 1999, and March 7, 2001,
letters, the Attorneys General recommended amending the definition of "reservation." While the
published rule did make changes to the definition, as it relates to Pueblos in New Mexico, it did not
observe the comment made by our letters. The Attorneys General again suggest a definition which
states:
Reservation means that area of land which has been set aside or which has been
acknowledged as having been set aside by the United States for the use ofthe Tribe as
described in a final treaty, Executive order or proclamation, Federal statute, or final
judicial determination, except as such lands may have been diminished or Indian title
extinguished by agreements, treaties, executive orders or congressional actions or by a
decree or ruling of a court.
The published rule uses a definition which refers to the "exterior boundaries" of lands, as "more
particularly defined ..." in the statutes, etc. However, while ceded lands are no longer part of the
"reservation," under the definition in the published rule, ceded lands may arguably be included within
the "exterior boundaries" of the reservation. Notably, the term "exterior boundaries" has been deleted
from our proposal to reflect the reality that the land ownership on many reservations is checkerboarded
and the jurisdiction over those lands is checkerboarded as well. Additionally, the states oppose any
definition of "reservation" that fails to acknowledge that tribes have ceded certain lands back to the
United States and that these ceded lands are no longer part of the reservation unless subsequently
restored to reservation status. A clear definition of the term "reservation" is extremely important to the
states.
3. Federal agency transfers of title. As discussed in the March 7, 2001, letter, the now - published rule
excludes from its provisions "federal agency transfers of title." § 151.3(b)(5). The rationale given is that
such exchanges "do not have an impact on the local governments - because these lands are not already
under their jurisdiction." This is an overly -broad and inaccurate statement concerning federal lands
within the states. While there may be federal preemption of certain areas of jurisdiction, unless the
parcel is in the exclusive jurisdiction of the United States, states exercise certain limited police powers
in federal lands within their boundaries. The State of South Dakota, for example, has hunting and
fishing jurisdiction over non - Indians on Corps of Engineers' lands on reservations. South Dakota v.
5/25/04
atloV1'
n
Bourlund, 508 U.S. 679 (1993). Any proposal to transfer Corps of E g inee rs, Buren
BLM, U.S. Forest, U.S. Wilderness, U.S. Monuments, or other federal lands into trust is a, ate ids
substantial concern to the states, affecting their jurisdiction and potentially impacting land use,
environmental quality, water rights, public safety, gaming policies, and general welfare of the stu
local communities. Existing federal agency transfer rules do not contemplate the new usurof such i,.
for activities such as Indian gaming. The rule should be amended to require consideration of all such
impacts under section 151 and to include such transfers within the ambit of a. federal - state = tribal
cooperative dialogue discussed herein.
4. Change in use for gaming purposes. Also discussed in both the November 12, 1999, and March 7,,,
200 1, letters, was the fact that the preamble to the proposed. rule (April 1999) set forth. the Department's
position that any land acquired in trust after October 17, 1988 (the effective date of the Indian Gaming
Regulatory Act), could not be used-for gambling without- prior- compliance with- Section-20 of the Act..
That section generally prohibits gaming on any newly acquired lands with certain exceptions, such as
when certain secretarial-. findings are made and there is gubernatorial concurrence- with those findings,_
The preamble to the proposed-rule stated:
If a tribe applies under these regulations to have title acquired in trust for a non - gaming
purpose, and thenatalater date decides thatitwould like to conduct-gaming on that-
parcel, it will be authorized to engage in such gaming only if it complies with the
requirements. of Section-20 of IGRA_ In other words, to game on, parcel_ of trust land-
acquired after October 17, 1988, (i.e., the date of passage of IGRA), the tribe must submit
to the same Section20 analysis and obtain_ the carne gubernatorial consent as would have
been required if the parcel were originally taken into trust for the purpose of gammg.-
Again, we observe that the statement in the April 1999 preamble should be included in the text of the
rule itself~ As we.saidinNovember 1999it. substance should be recitedin the "regulations. so that it-is-
part of the Federal Register, and ultimately, the Code of Federal Regulation, rather than just a statement
of intent_ _ _...._" While the Departmenthas pr_orr ulgated a- proposed rule governing acquisition_ of land in,
trust for gaming purposes, 65 Fed. Reg. 55471 (Sept. 14, 2000), that rule has not been finalized and, in
any case, it.serves, to strengthen the Department's position to restate its view in this published rule. -
Indeed, the Department should unequivocally articulate the requirement, in the form of a final, binding
rule relating to land in trustacquisitions. generally,. that Section 20 of IGRA. governs the use of lands -
acquired after October 17, 1988, for gaming purposes, including, where applicable, the requirement of
secrztarial findings and gubernatorial concurrence_ Therefore, we recommend an amendment to include .
the relevant language of the preamble of the original proposed rule into the text of the current published
rule.
CONCLUSION
The Attorneys General appreciate the opportunity to address again this critical question that relates to
core sovereign interests of the state and the local communities- The acquisition_ of land in trust for the
benefit of Indian tribes is generally a commendable and important federal governmental action, but it is
simultaneously a taking of land out of the traditional scope of the states.' jurisdiction and that of their
political subdivisions. The federal government, then, should proceed quite carefully in matters such as
this and give frill measure to a consultative, cooperative and collaborative approach to the federal state-
tribal relations involved. The Attorneys General have addressed these issues in their previous letters and
reiterate them_ here_ Further, the States of Alaska, Kansas, Michigan, South. Dakota, Rhode Island and
Connecticut have submitted separate comments over the past two years; those comments should be
revisited in this review.
5/25/04
We urge you to adopt the recommended amendments and other changes that we have suggested and
cireulate .a__new draftfor the .states and other interested- parties to review- As part of this -review process,
we also suggest a more intense consultation with the states' Attorneys General in meetings or sessions
where the issues can. be fully develope&
Sincerely
Attorney General Riil P nr Attorney General Rnive Rntplhn
Attorney General of Alabama Attorney General of Alaska
Attorney General T-q politana Attorney General Ken Salazar
Attorney General of Arizona Attorney General_ of Colorado
Attorney General Richard-Blumenthal Attorney General l? ^1` °rt A rth
Attorney General of Connecticut Attorney General of Florida
Attorney General Alan T anne Attorney General Steve Carter
Attorney General of Idaho Attorney General of Indiana-
Attorney Ge Attorney Ge -rd n ley nh
Attorney General of Kansas- .Attorney General of Louisiana.
Attorney General TPnnifPr C'rranhnlm Attorney Gene r�ilre Moore
Attorney General. of Michigan Attorney General of ivlississippi-
5/25/04
Attorney General Teremiah w Nixon Attorney General Franlrie R„e 17e1 Pia
Attorney General of Missouri Attorney General of Nevada-
Attorney General John Farmer, Tr Attorney General Patdrria Marlrirl
Attorney General of New Jersey Attorney General. of New Mexico
Attorney General Wayne. Se em - - -- Attorney General "Betty D Montgomery
Attorney General- of North_ Dakota Attorney General_ of Ohio
Attorney General Sheldon Miteho „Se Attorney General Mark Barnett
Attorney General of Rhode Island Attorney General of South_ Dakota
Attorney General Mark I.Shurtleff Attorney General William H Sorrell
Attorney General of Utah- Attorney General of Vermont
Attorney General Christine 0 rlrecpire
Attorney General of Washington
5/25/04
act: Re: Rohnert Park referendum
ah Caplan, attorney for the city of Rohnert Park, told Judge Sawyer, As Your Honor knows, once —if a petition is circulated and
f the registered voters sign it, it suspends it immediately until there's an election, so the impact of the referendum can be quite
ntial and significant on a local government. (Transcript p. 12:24 -28, speaking generally about matters subject to referendum as part
anent why this MOU should not be subject to referendum.) John
Subject: Re: Urgent
The way it's been explained to me by the attorney at the Secretary of State's office, the very fact that a referendum is certified
automatically suspends the "object of the referendum". In fact, its suspended the moment its turned in to the Registrar of
Voters for certification of the signatures. (Of course, if a referendum doesn't get enough valid signatures, it has failed, and at
that point, the "object of the referendum" would no longer be suspended.)
The issue of whether or not the MOU is subject to the referendum process is a sepearate issue to be decided in court. This
MOU is suspended until the higher courts decide - and that could mean all the way to the State Supreme Court.
The reason the law is written this way is to prevent governments from ignoring a successful referendum. The - referendum
insures that the government does not proceed with the contested action or activity; it stops everything and everyone in their
tracks. Everything grinds to a halt until the "object of the referendum" is either (1) nullifed, (2) put to the vote or
(3) decided in court. A.
El