Federal Judge Throws Out Another Challenge
A federal judge ruled last week that the U.S. Department of the Interior does not have to produce confidential documents related to the proposed development of the Wilton Rancheria casino resort to opponents of the project.
“….the court finds that the requested documents are protected by the attorney-client and deliberative process privileges,” wrote U.S. District Court judge Trevor N. McFadden in his Jan. 19 order. “Thus, it will deny the plaintiff’s motion.”
The decision marked the latest setback for a casino watchdog group, Stand Up for California! and three Elk Grove residents, Joe Texeira, Patty Johnson, and Lynn Wheat, who have been trying for the last two years to stop the development of the $500 million Wilton Rancheria casino resort in Elk Grove.
The Wilton Rancheria Casino
The project would involve building a 12-story, 302-room hotel with a spa, pool and a 30,000-square-foot event hall. The resort would feature six restaurants, and the casino would have 2,000 slot machines and 84 gaming tables. The complex would be located on 35.9 acres of land near Kammerer Road and Highway 99, north of the planned Outlet Collection at Elk Grove.
Judge McFadden’s Ruling
McFadden’s ruling comes in response to the plaintiffs’ latest demand that the U.S. Department of the Interior produce documents which they claimed showed improper communication between the agency and Wilton Rancheria before the Bureau of Indian Affairs took the land in trust for the tribe.
The group also asked for documents detailing the Interior Department’s deliberations leading up to the BIA decision, claiming that they would show government misconduct.
The judge denied both requests.
In response for the first demand, McFadden ruled that the documents are covered under attorney-client privilege. He noted that two weeks prior to the communication between the Interior Department and Wilton Rancheria, the plaintiffs had filed a temporary restraining order (TRO) and an injunction against the government agencies.
Stand Up and the residents had argued that the Interior Department had clearly coordinated its strategy with the tribe, and claimed that, as the BIA decision has yet to be issued at the time, “any communication regarding the TRO and the injunction….or other topics is not privileged.”
But McFadden noted that the plaintiffs had incorrectly relied on two e-mails sent from the Interior Department’s solicitor office to the Wilton Rancheria’s attorney, in which the plaintiffs’ TRO and injunction were discussed.
“But neither e-mail reveals a voluntary disclosure by the Department of attorney advice about its litigation strategy,” he wrote in his opinion.
“Rather, the e-mails appear to show the Department asking about the Tribe’s position on the TRO and preliminary injunction. And it is common for parties involved in litigation, even opposing parties, to discuss their litigation postures without revealing confidential attorney-client information.”
The judge also denied the watchdog group’s second motion to force the government to produce documents reflecting the deliberations that led up to the BIA decision.
By law, he said, government agencies can withhold documents that would reveal the process in which decisions and policies are formed. An exception can be made to this privilege if it could be shown that “the documents (sought) would shed light upon governmental misconduct.”
However, McFadden ruled that the activist group had not met that standard by simply relying on his earlier finding that the Interior Department had acted in “bad faith.”
“The plaintiffs have offered no arguments about the documents identified in the privilege log,” he wrote.
“Nor have they provided an adequate basis for believing any of these documents would shed light on government misconduct beyond that already alleged based on the existing record.”
Wilton Rancheria’s Press Release
Wilton Rancheria chairman Raymond Hitchcock was not available for comment Thursday. however, he had commented in the tribe’s press release a day earlier on McFadden’s decision.
“The court has already ruled against Stand Up for California and in favor of Interior’s decision to place our Tribal land into federal trust,” he said in the release.
“This is Stand Up’s latest desperate attempt to delay or derail a project that will create thousands of jobs, tens of millions of dollars in revenue for the city and give our members a path to self-sufficiency.”
Stand Up For California’s Ongoing Battle
But Cheryl Schmit, director of Stand Up for California! was not ready to admit defeat.
“The focus of the lawsuit – the status of the land is still in question – that lawsuit is ongoing,” she said Thursday.
“It has not gone to trial and the judge has not made a ruling as yet.”
In a nod to the then-ongoing federal government shutdown, McFadden had also ordered that “the parties shall file a status report with a proposed summary judgment briefing schedule no later than 20 days after Congress has restored appropriations to the Department of Justice and the Department of the Interior.”
The judge’s January 19 decision is the latest in an ongoing legal battle, pitting Stand Up and the three Elk Grove residents against the U.S. Department of the Interior, the Bureau of Indian Affairs, and the Wilton Rancheria tribe.
Past Events Of The Battle
In January of 2017, the plaintiffs had sued the two government agencies for acting in an “arbitrary and capricious manner” by abruptly dropping a three-year effort to take 282 acres near Galt in trust for the Wilton Rancheria casino resort project.
Instead, the watchdog group accused the two federal entities of rushing to approve the tribe’s application for the Elk Grove site in the waning days of the Obama administration.
Stand Up also claimed that in so doing, the U.S. Department of the Interior and the Bureau of Indian Affairs had violated several federal laws in the process.
In February 2018, McFadden dismissed the plaintiff’s claim that Larry Roberts, the principal deputy assistant secretary for the Bureau of Indian Affairs did not have the authority to issue the decision on Jan. 19, 2017 to take the Elk Grove land into trust for the tribe.
The U.S. Department of the Interior then compiled an administrative record of the case for judicial review for the remaining claims of the casino opponents’ lawsuit.
But Stand Up and the residents contend that the court record was incomplete, noting that the Interior Department had omitted some information, and withheld other documents, which the agency considered confidential.
They filed a motion in April 2018 to supplement the record and be allowed to review a privilege log to determine if documents were properly withheld.
In May 2018, McFadden denied the group’s request to add a number of documents to the administrative record, ruling that the plaintiffs had not shown that the documents were excluded “deliberately or negligently” or that “they provided background information in order to determine whether the agency considered all the relevant factors.”
However, he did agree that the Draft Environmental Impact Statement (DEIS), which was prepared in December 2015, should be entered into the record. The DEIS looked at several development scenarios at three sites – the 282 acres near Galt, 28 acres near Wilton, and the 36 acres in Elk Grove.
McFadden also ordered that the U.S. Department of the Interior produce a privilege log of documents withheld from the administrative record.
“Though the plaintiffs failed to make a showing to warrant supplementing the administrative record, they have made a prima facie showing of bad faith to warrant limited discovery – here, the production of a privilege log to facilitate review of the Defendants’ assertion of privilege,” he wrote.
The judge noted that the timeline of actions taken by the government leading up to the BIA decision to take the Elk Grove land in trust indicated a rushed review process.
“It was not until November 2016, after the presidential election and after it became clear that a different political party would control the Executive Branch – that the Department ‘shifted into warp speed’ to approve the application for the Elk Grove site,” McFadden wrote.
“Within two months, the Department completed the decision-making process for taking the Elk Grove land into trust – a process that was incomplete after three years for the Galt site – and issued the decision on the last day of the outgoing Presidential administration.”
McFadden noted in this month’s decision that the U.S. Department of the Interior had agreed to supplement the privilege log since his order in May 2018, and that the plaintiffs had asked in their latest lawsuit, that 400 documents be added to it.
He denied that request, saying it was moot since the Interior Department had agreed to treat the 400 documents as part of the record.
Still, Schmit was savoring that small victory Thursday.
“We got the majority of the documents,” she said. “They had to provide a privilege log. It made a difference to the judge because they (the Interior Department) had to do it.”
While Stand Up and the three Elk Grove residents have been battling the project in the courts in the past two years, the Wilton Rancheria tribe has been celebrating several milestones on the road to realizing their dream.
In February 2017, the tribe paid $36 million to the Howard Hughes Corporation to buy the land it needs for the casino resort.
In July 2017, then-Gov. Jerry Brown and Hitchcock signed a Tribal/State Gaming Compact, which was ratified by the state legislature in September 2017.
In October 2018, the chairman of the National Indian Gaming Commission approved the management agreement between Wilton Rancheria and Boyd Gaming to build a casino and resort on tribal trust land in Elk Grove.
Early this month (January 2019), drive pile tests have been conducted on the site. The tests are needed to determine how much weight the land can bear before construction can begin.
It was not known when the groundbreaking for the project will be held, but Hitchcock said a few weeks ago that he expects to have the casino resort open in late 2020.
“The project is on track,” he said. “No definite date has been announced (for the start of construction) but we will let people know the process.”
Hitchcock said the tribe plans to take out a loan of more than $500 million to fund the project.
“We have taken care of the aspects to move forward,” he said
The project is expected to generate 1,000 to 3,000 full-time construction jobs during the two-year build. Once completed, the casino resort will employ between 1,500 to 2,000 people.
“We anticipate a premiere first-class gaming resort,” said Hitchcock.
The Ghost Mall
He also said what is happening with the nearby Outlet Collection at Elk Grove, otherwise known as the “ghost mall,” will not affect the Wilton Rancheria project.
Earlier this month, the Howard Hughes Corporation, which owns the property, notified the City of Elk Grove that it was abandoning the mall and would tear down the existing structures.
“It doesn’t have any bearing on the tribe project,” Hitchcock said. “We would love to have the synergy but we’re a stand-alone entity.”
Early design drawings for the casino resort show an entrance to the mall.
“We designed the project in anticipation of the Outlet Collection to the south,” he said. “If nothing happens, it will still serve as an entry and exit way.”
But Hitchcock was toying with another idea.
“We can always purchase the land if it was ever up for sale,” he said noted. Indicating that the tribe would not need to take the additional acreage in trust.
“The tribe would be honored to move forward with the (mall) project that Elk Grove would like to come to fruition.”