pro hac vice) - Point Richmond, Richmond, California

1 - 1 Case No.: CV 12-1326-YGR Joint Case Management Statement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael P. Scott, Esq. (SBN 139188) Box 3802 Santa Rosa, CA 95402-3802 Tel: (707) 799-4678 Email: CROWELL LAW OFFICES TRIBAL ADVOCACY GROUP Scott Crowell ( pro hac vice ) 1487 W. State Route 89A,Suite 8 Sedona, AZ 86336 Tel: (425) 802-5369 Fax: (425) 828-8978 Email: Attorneys for Plaintiff Guidiville Band of Pomo Indians O'KEEFE & O'KEEFE LLP Garet D. O'Keefe (SBN 168415) Shona L. Armstrong (SBN 191685) 1341 Francisco Street Berkeley, CA 94702 Tel.: (510) 540-8320 Fax.: (510) 540-6169 Email: Attorneys for Plaintiff Upstream Point Molate LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF California THE GUIDIVILLE RANCHERIA OF California , a federally recognized Indian tribe; and UPSTREAM Point MOLATE LLC, a California Limited Liability Corporation, Plaintiffs, vs.

2 THE UNITED STATES OF AMERICA; KEN SALAZAR, the Secretary of the Department of the Interior; LARRY ECHOHAWK, the Assistant Secretary - Indian Affairs; and THE CITY OF RICHMOND, a California Municipality, Defendants. _____ Case No. CV 12-1326 YGR JOINT CASE MANAGEMENT STATEMENT [LOCAL RULE 16-9] AND RULE 26(f) REPORT Date: September 17, 2012 Time: 2:00 Place: Ronald V. Dellums Fed. Building 1301 Clay Street, Oakland, CA Case4:12-cv-01326-YGR Document30 Filed09/04/12 Page1 of 23 - 2 Case No.: CV 12-1326-YGR Joint Case Management Statement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE CITY OF RICHMOND, a California Municipality, Counterclaimant, vs.

3 UPSTREAM Point MOLATE LLC, a California Limited Liability Corporation, Counterclaim Defendant CASE MANAGEMENT STATEMENT AND RULE 26(f) REPORT Pursuant to Local Rule 16-9 and Federal Rule of Civil Procedure 26(f), a meet and confer session was held on August 27, 2012, between Michael Scott and Scott Wheat of Crowell Law Office, co-counsel for plaintiff The Guidiville Rancheria of California a/k/a the Guidiville Band of Pomo Indians of the Guidiville Rancheria ( Band or Tribe ), Garet O'Keefe of O'Keefe & O'Keefe LLP, counsel for plaintiff/cross-defendant Upstream Point Molate LLC ( Upstream ), Reuben S. Schifman of the United States Department of Justice, counsel for defendants United States of America, Ken Salazar and Larry Echo Hawk ( Federal Defendants ) and Christopher J.

4 Carr of Morrison & Foerster, LLP, counsel for defendant/counterclaimant The City of Richmond ( City ). The parties, by and through their undersigned counsel, jointly submit this Joint Case Management Statement and Rule 26(f) Report in anticipation of the Case Management Conference pursuant to Fed. R. Civ. P. 16(b) and Civil L. R. 16-9, scheduled for September 17, 2012, at 2:00 , at the United States District Court for the Northern District of California , Ronald V. Dellums Federal Building, Oakland, California . 1. JURISDICTION AND SERVICE The parties agree that plaintiff Tribe s claims challenging the Secretary s September 1, 2011, denial are brought under 28 1331 and 1362 and that Plaintiffs allege their claims arise under the Constitution, federal common law, and federal statutes, including the Indian Gaming Regulatory Act, 25 2701 et seq.

5 , among other statues establishing jurisdiction Case4:12-cv-01326-YGR Document30 Filed09/04/12 Page2 of 23 - 3 Case No.: CV 12-1326-YGR Joint Case Management Statement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 over the Tribe s claims. The Plaintiffs allege a waiver of sovereign immunity from the Administrative Procedure Act ( APA ). The City and Plaintiff agree that under 28 1367(a), the court has supplemental jurisdiction over the Tribe s and Upstream s claims against the City and the City s counterclaim against Upstream, as those claims are related to the Tribe s claims against the Federal Defendants and form part of the same case or controversy. 2. FACTS Each party has summarized below the factual and legal contentions in its respective pleadings.

6 The inclusion of these summaries in this Joint Case Management Statement should not be construed as an admission or adoption by any party of any factual or legal contention alleged by the other party. a. Plaintiffs Description of the Case The federal claims center on the Federal Defendants refusal to approve Guidiville Tribal gaming activities upon a 425-acre parcel of land in Richmond, California , known as Point Molate, under the Indian Gaming Regulatory Act. The pendant claims arise out of a directly related contractual arrangement between the City, the developer Upstream, and the Tribe concerning the ultimate transfer of legal title to Point Molate from the City of Richmond ( the Property ) to the United States in trust for the Tribe.

7 In November 2004, the City and Upstream entered into a Land Disposition Agreement ( LDA ), which expressly benefited the Tribe. Pursuant to the LDA, the City agreed, among other things, to sell and lease the Property to the Tribe through a pre-approved assignment of Upstream s rights, contingent, of course, on CEQA review and approval and other Closing conditions. One of the City s main commitments pursuant to the LDA was the City s agreement that it would urge the United States Department of the Interior ( DOI ) to approve the Tribe s request that the DOI take the Property in trust, in part for gaming purposes. The City also agreed to urge the State of California to negotiate and enter into a Compact with the Tribe to permit Class III gaming.

8 Case4:12-cv-01326-YGR Document30 Filed09/04/12 Page3 of 23 - 4 Case No.: CV 12-1326-YGR Joint Case Management Statement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 6, 2004, the Tribe notified the Secretary of its intent to start the NEPA process associated with having the United States place Point Molate into trust, for the purposes of reestablishing a Tribal homeland and in part, for the purpose of gaming pursuant to the Restored Lands Exception, 25 2719(b)(1)(B)(iii). The Tribe also began to execute a Services Agreement with the City requiring the Tribe to pay to the City $15-$20 million per year for a variety of services necessary to the construction and operation of the Project.

9 The Tribe performed all the steps necessary to make the LDA possible. The Tribe also showed that the Property qualified to be taken into Trust. Upstream performed all of the obligations required of it under the LDA and related documents. Indeed, between 2004 and 2011, Upstream and the Tribe made payments of approximately $16,000,000 to the City as a deposit against the purchase price to be paid to the City for the Property and expended approximately another $14,000,000 in expenses related to the Project and Property, all of which benefitted the City Meanwhile, between March 2006 and January 2009, the Tribe attended several meetings with representatives of the DOI and the National Indian Gaming Commission regarding the Tribe s request for a restored lands determination.

10 On October 5, 2006, the DOI published a proposed rule in the Federal Register (71 Fed. Reg. 58769) in order to explain how the Department interprets 2719 exemptions and exceptions, including the restored lands exception. On or about February 25, 2008, at the request of the Government, the Tribe submitted its Supplement to the Land Determination Request to the Department of the Interior. On May 20, 2008, the DOI published its final rule, codified at 25 CFR Part 292 ( 2008 Regulations ). Sections through of the 2008 Regulations impose restrictions on the restored lands exception, including that the applicant tribe demonstrate a historic, modern, and temporal connection to the land. 25 CFR On or about September 25, 2008, at the request of the Government, the Tribe submitted its Second Supplement to the Land Determination Request of the Department of the Interior to the DOI and to the NIGC.