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By PAUL PAYNE
THE PRESS DEMOCRAT
A federal appeals court has rejected the lawsuit by a group suing to block development of a proposed $1 billion casino near Rohnert Park.
The 9th U.S. Court of Appeals in San Francisco on Thursday said the Sonoma County group, Stop the Casino 101, lacks legal standing to sue the Department of the Interior and the Federated Indians of the Graton Rancheria.
The group is trying to set aside the 2008 decision by Department of Interior officials to take the casino site into federal trust for use by the Graton tribe. The agency has delayed implementing that decision until the court challenge is resolved.
However, the three-judge panel concluded that the group’s contention that the federal agency’s decision posed an imminent threat to “economic, environmental and quality of life” issues was “speculative.” The judges noted that the Interior Department’s action specifically noted that it was not an approval or denial of a casino for the property.
The ruling affirms a lower court’s 2009 ruling to toss out the case and could bring an end to the federal legal issues that have delayed the tribe’s access to the land just outside Rohnert Park’s western city boundary.
Mike Healy, a Petaluma City Councilman and plaintiff in the case, called the ruling a “procedural setback” that could be appealed to the U.S. Supreme Court or revisited after the tribe and its partner, Station Casinos of Las Vegas, receive gaming agreements with the state.
Healy said nothing is expected to happen any time soon because the project is being delayed by Station’s ongoing bankruptcy filing.
“We certainly are still intending to litigate this vigorously,” Healy said.
Neither tribal representatives nor Station officials returned calls Friday afternoon seeking comment.
The tribe is proposing a Las Vegas-style casino and resort on part of 254 acres near Wilfred Avenue. The facility would have 2,000 slot machines, a 300-room hotel and a convention center.
Opponents sued in 2008 to stop the federal government action, arguing it could not create a sovereign nation within California without the state’s consent. Because the Legislature has not approved a gaming compact with the Graton tribe, opponents contend the state has not given its permission.
The suit was dismissed in U.S. District Court in San Francisco and sent to the court of appeals. Arguments were heard in April.
Also, the panel rejected the claim by the opponents that taking the land into federal trust was effectively denying them protections offered by state law.
“Injuries related to the possible building of a casino are hypothetical and not fairly traceable to an agency action that affirmatively declined to determine whether or not a casino could be built on the property,” the court said.
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ROHNERT PARK CITIZENS TO ENFORCE CEQA v. U.S. DEPARTMENT OF TRANSPORTATION
ROHNERT PARK CITIZENS TO ENFORCE CEQA, Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION, Defendants-Appellees.
No. 09-15750.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 11, 2010 — San Francisco, California.
Filed July 1, 2010.
Before: REINHARDT and BYBEE, Circuit Judges, and GWIN,[ 1 ] District Judge.
NOT FOR PUBLICATION
MEMORANDUM[ 2 ]
Plaintiff-Appellant Rohnert Park Citizens To Enforce CEQA (\Rohnert Park Citizens\) appeals the district court’s entry of summary judgment in favor of the U.S. Department of Transportation and the Federal Highway Administration on Rohnert Park Citizens’s claim that the federal agencies violated the National Environmental Policy Act (\NEPA\) when they found that a northern California highway interchange expansion project would have no significant impact on the human environment. Rohnert Park Citizens argues that the environmental assessment for the highway project violated 40 C.F.R. § 1508.25(c)(3) by failing to adequately consider the cumulative impact on traffic of the highway project in tandem with an unrelated casino construction project nearby.
We review the district court’s grant of summary judgment de novo and the environmental assessment’s finding of no significant impact under the Administrative Procedure Act’s arbitrary and capricious standard. See, e.g., Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891-92 (9th Cir. 2002). We hold that given the lack of information about the casino project’s likely effects on traffic, the environmental assessment’s discussion of the cumulative traffic impact was not arbitrary or capricious. We therefore affirm the district court’s grant of summary judgment.
As a threshold matter, the federal agencies’ challenge to Rohnert Park Citizens’s associational standing to bring this action fails. Linda Long, a Rohnert Park Citizens member who lives on a street adjacent to the project, has a concrete interest in being free from any adverse environmental effects caused by the project. See, e.g., White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, 1039 (9th Cir. 2009). Because Ms. Long \would otherwise have standing to sue in [her] own right,\ Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000), and because the other elements of associational standing are met, Rohnert Park Citizens has standing to maintain this action on behalf of its members.
On the merits of this appeal, Rohnert Park Citizens argues that the highway project’s environmental assessment did not adequately analyze the highway project’s \incremental impact . . . when added to\ the impact of the nearby casino project, a \reasonably foreseeable future action[].\ 40 C.F.R. § 1508.7. The highway project proposes to create a more direct connection between a local road and the casino’s doorstep via an underpass. Rohnert Park Citizens claims that the environmental assessment’s analysis of the potential traffic increase associated with the highway project was deficient.
We disagree. The environmental assessment used current and projected traffic data from the city of Rohnert Park to calculate that, due to the city’s traffic routing plans, the highway project would cause only \an incremental increase to traffic\ at a local intersection. The data took into account potential traffic that would be generated by the proposed casino. Although this analysis is admittedly thin, that shortcoming is the result of meager information about the incipient casino project, not a failure to adequately analyze available information. At the time of the environmental assessment’s release in November 2006, the federal agency responsible for the casino project had not yet issued a draft environmental impact statement for the casino. The only publicly available information about the casino project was its proposed location and general attractions. Even today, the casino has not been built. A NEPA document’s failure to analyze unknown environmental effects of reasonably foreseeable future actions does not render its cumulative impacts analysis arbitrary or capricious. See League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211, 1220 (9th Cir. 2008); N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 976-77 (9th Cir. 2006).
Rohnert Park Citizens’s remaining challenges to the environmental assessment’s alternatives and comments sections depend entirely on the success of its cumulative impact challenge. Because that challenge fails for the reasons above, Rohnert Park Citizens’s remaining challenges also fail.
AFFIRMED.
I like Mike Healy’s moderate politics and intelligence and John King’s passion and intelligence.
Since there can be two candidates advancing to November, I really hope people look for substance this time around. These two are the most qualified and are both independent thinkers without all the special interest money.
The person posting the blog probably knew that the decisions of the 9th federal appellate court are always posted on the court’s website. The court does alert the attorneys before releasing its decisions. Someone got a heads up? Well, lots of people on both sides got the same heads up! It’s nothing sinister.
The basic claim in our lawsuit hasn’t been ruled on and it hasn’t gone away, that being if Native Americans get title to the land, that doesn’t affect state sovereignty, and state law will still prevail. Neither the lower court nor the appeals court has addressed that issue.
Mike Healy and the other members of our legal team evaluated the legal aspects of this case beforehand in some depth. The anonymous commenter may not be an attorney, and thus, may not be able to appreciate the legal nuances of our lawsuit.
Part of the reason we challenged the decision to take the property into federal trust when we did was because, if we waited until the decision to approve the casino was final, we didn’t want to be vulnerable to the argument that we should have earlier challenged the land-to-trust decision.
The court did not rule against us. It simply said that we made our claim too early; we hadn’t been “injured” yet. So we now feel more confident that we can challenge that decision at the appropriate time. Our legal team, including Mike Healy, knew that by filing this law suit we’ve preserved our right to do so.
In addition, we delayed the trust acquisition by two years – not bad for a grassroots movement.
At this point, we’re reviewing the decision and considering all of our options, including a possible appeal to the U.S. Supreme Court.
Remember that the casino site is part of the Station Casinos bankruptcy estate, which will continue to be the case for at least several months. Under the reorganization plan filed with the Reno bankruptcy court, the land will be auctioned off in a bundle with 11 of the company’s casinos, other CA land holdings, it CA tribal management contracts, including the FIGR’s. and its NV land holdings.
Mike is a talented attorney and a dedicated citizen and servant of the people he represents. He wants you, me and everyone in District 2 to have their voices heard. How refreshing!
As we move closer to the legal challenge of the casino environmental study, Mike Healy is the man I’d like to have on the Board. I can trust him to follow through.
Readers of this forum in its earlier form on Press Democrat got to read this exact ruling and reasoning the very day the lawsuit was publicized in the Press Democrat.
How did some random bulletin board poster know exactly what would happen?
Another waste of time and resources by Mike Healy. He simply does not have a real clue here. And this is the man that a few people want on the Board of Supervisors? We need better people there, not worse.