A lawyer for the state of California faced tough questioning before an 11-judge federal appeals panel Wednesday over state opposition to building an Indian casino on environmentally sensitive land at Big Lagoon in Humboldt County.
The 9th U.S. Circuit Court of Appeals voted to rehear the casino case after a three-judge panel in January blocked development of the gambling house on the scenic coastal land in California’s far north.
In the end, several judges suggested both sides might do well to seek out a mediator to settle the dispute.
Chief Judge Alex Kozinski asked, why not mediation? “You’re all here. Sometimes the courthouse steps is a good place to talk. Why don’t you go to lunch and talk. We have an excellent mediation unit here. If you have an interest and want us to delay a decision to allow mediation, let us know in the next 24 hours and we will,” he said.
Judge Harry Pregerson also warned the tribe’s lawyer that even if they win there are still serious environmental hurdles. “Bearing in mind the environmental issues are overwhelming, what would it take for the tribe to be happy,” he asked.
Michael Pollard, attorney for Big Lagoon Rancheria said there are 28 members of the Rancheria and they want “self-sufficiency.”
California reluctantly entered into a deal to allow Big Lagoon Rancheria to operate a casino on the parcel in HumboldtCounty after U.S. District Judge Claudia Wilken sided with the rancheria.
But the state has continued to oppose the casino at the site of the lagoon and its latest gambit has been to challenge federal recognition of the 28-member tribe and allotment of land to them, which dates back potentially to 1904, but at least to 1968.
During the hour-long hearing many of the judges asking questions focused on whether the state had blown the six-year statute of limitations to challenge the legitimacy of the rancheria.
Kozinski prodded Deputy Attorney General Peter Kaufman for a date when the U.S. Department of Interior assigned the tribal trust land. “You say it is not 1979 and it is not 1994. When was it? Without the date we can’t add six years,” he said.
Kaufman gamely tried. “I can’t. The statute has not run yet.’
Kozinski: “Let me decide that by adding six. Just give me a year.”
Pregerson then stepped in to ask, “What is going on here? What is the hidden agenda?”
After some back and forth, Pregerson said, “Isn’t the real issue the environmental issue?”
Kaufman acknowledged the environment has been driving the state interest. “This is a 24-7 activity adjacent to an environmental preserve,” he said.
The original three-judge panel held that California did not violate the Indian Gaming Regulatory Act by failing to negotiate a tribal-state gaming compact. The panel held the tribe did not have jurisdiction over Indian lands in question.
The three-judge panel then reversed in January in a 2-1 vote saying Big Lagoon could not demand negotiations on a parcel that was not Indian land.
A majority of the 9th Circuit judges voted to reconsider the issue with the 11-judge en banc panel.
Case: Big Lagoon Rancheria v. State of California, No. 10-17803