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HomeMy WebLinkAboutStaff Report 3.F 08/06/2018Imn DATE: August 6, 2018 TO: Honorable Mayor and Members of the City Council FROM: John C. Brown, City Manager SUBJECT: Letter to Sonoma County Board of Supervisors Requesting an Amendment to the Memorandum of Agreement with the Lytton Rancheria. RECOMMENDATION It is recommended the City Council consider and, if appropriate, authorize the Mayor to sign a letter to the Sonoma County Board of Supervisors Requesting an Amendment to the Memorandum of Agreement with the Lytton Rancheria. BACKGROUND House Resolution (H.R.) 597, the Lytton Rancheria Homelands Act of 2017, was introduced on January 20, 2017, by Representative Jeff Denham. H.R. 597 would take into trust and make part of its reservation, for the benefit of the Lytton Rancheria of California, a federally recognized Indian tribe, 511 acres owned by the Rancheria and adjacent to the City of Windsor. The bill prohibits gaming on lands taken into trust north of the intersection of Highways 101 and 12. The Bill also provides gaming will be prohibited until March 16, 2037 on other lands taken into trust for the benefit of the tribe after enactment of H.R. 597, which is consistent with a memorandum of agreement (MOA) executed between the Rancheria and the County of Sonoma in 2015. H.R. 597 was passed by the House on July 11, 2017, received in the Senate on July 12, 2017, and referred to the Senate Committee on Indian Affairs. In September 2017, the City Council authorized and executed a letter of opposition to H.R. 597 (Attachment 2). In November 2017, the City Council reiterated its opposition to H.R. 597, and proposed amendments to the Bill that would make permanent a prohibition on gaming on the lands in question (Attachment 3). On July 11, 2018, the Senate Committee on Indian Affairs passed H.R. 597. Vice Mayor Healy attended the Senate Committee hearing, and argued for the amendments proposed in the City's November 2017 letter: a permanent ban on gaming on the lands in question to be taken into trust by the Lytton Rancheria. The Committee asked the County and the Rancheria to address those changes in amendments to their 2015 MOA. DISCUSSION The County and the Lytton Tribal Council have drafted proposed amendments to the MOA, in response to the Senate Committee's request, the operative language of which is as follows: "The Count) of Sonoma and the Lytton Rancheria of California hereby agree, effective immediately, to amend the Memorandum of Agreement Between the County of Sonoma and the Lytton Rancheria of California regarding Fee to Trust lands entered into as of March 10, 2015 (the "Agreement'), as folloivs: 1. Section 6.3 of the Agreement is amended to read as follows: "The Tribe agrees not to engage in any Gaming or Gaming Activities in Sonoma County during the term of this Agreement. Notwithstanding this, upon the enactment into law of HR. 597, the Lytton Rancheria Homelands Act of 2017, as passed by the U.S. House of Representatives, or any other federal legislation containing substantially identical language to H.R. 597 in the 115th Congress (the "Federal Legislation'), the Tribe agrees to a permanentprohibition on engaging in any Gaming or Gaining Activities in Sonoma County. Except with regard to the Federal Legislation, nothing in this provision shall impact or diminish the County's right to object to and/or comment on lands being taken into trust, whether or not for the purposes of Gaming. Any disputes arising under this section are subject to sections II, XI, XIV and XV of this Agreement, which are incorporated by reference. 2. Section 9.1 of the Agreement is amended to read as follows: This Agreement shall be in fuill force and effectfor twenty-two (22) years from the Effective Date, provided that Section 6.3, and Sections II, XI, XIV and XV of the Agreement required to enforce Section 6.3, shall survive and continue in full force and effectfor so long as the Tribe has Trust Lands in Sonoma County. " 3. All other provisions of the Agreement remain in effect and unchanged". Concerns have been raised with this proposed language because, as a Memorandum of Understanding, it can be modified by future Boards of Supervisors and Tribal Councils, and lacks enforceability by an outside party. Vice Mayor Healy, working with the City Attorney, has proposed a solution to that concern: adding language to the amendment that would give the City of Petaluma third -party beneficiary status, and require the City's consent to any changes to Section 6.3 of the proposed amendment. Incorporating the proposed language, the operative section of the amendment would read as follows (proposed change underscored): "1. Section 6.3 of the Agreement is amended to read os follows: The Tribe agrees not to engage in any Gaining or Gaming Activities in Sonoma County during the terin of this Agreement. Notwithstanding this, upon the enachnent into law of H.R. 597, the Lytton Rancheria Homelands Act of 2017, as passed by the U.S. House of Representatives, or any other federal legislation containing substantially identical language to H. R. 597 in the IlSth Congress (the "Federal Legislation'), the Tribe agrees to a 2 permanent prohibition on engaging in any Gaming or Gaming Activities in Sonoma County. Except with regard to the Federal Legislation, nothing in this provision shall impact or diminish the County's right to object to and/or comment on lands being taken into trust, whether or notfor the purposes of Gaming. Any disputes arising under this section are subject to sections II, XI, XIV and XV of this Agreement, which are incorporated by reference. Notwithstanding Section 10.1 of the Agreement, the City of Petaluma shall be a third party beneficiary in accordance with Civil Code section 1559 for purposes of this section 6.3. Nohvithstanding Section 10.2, the Parties may not amend this Section 6.3 without first obtaining- the written consent of the Cibh ofPetaluma. Notwithstanding Section 14.5 or any other provision of the Agreement, the Cib� of Petahnna may IudiciallLnforce this Section 6.3 ygainst the County o Sonoma. 2. Section 9.1 of the Agreement is amended to read as follows: This Agreement shall be in full force and effect for twenty-hvo (22) years from the Effective Date, provided that Section 6.3, and Sections II, XI, XIV and XV of the Agreement required to enforce Section 6.3, shall survive and continue in full force and effect for so long as the Tribe has Trust Lands in Sonoma County. " 3. All other provisions of the Agreement remain in effect and unchanged." On August 2, 2018, the City Attorney and I participated in a conference call with corresponding County staff, and Supervisor Rabbitt, to determine whether the City's proposed language could be incorporated into the amendment to the MOA developed between the County and the Rancheria. We were advised to raise the matter with the full Board of Supervisors. The Board of Supervisors is scheduled to consider amendments to the MOA with the Lytton Rancheria at its August 7, 2018 meeting. This matter is placed on your August 6, 2018 agenda to provide the City Council an opportunity to consider the language proposed by Mr. Healy and City staff to amend the MOU. If the Council deems it appropriate, a draft letter, requesting the Board of Supervisors to incorporate this proposed language into the Amendment to the MOA, has been prepared and is attached for the Council's approval and the Mayor's signature. FINANCIAL IMPACTS The cost associated with this item was the staff time required to prepare, review and process it. ATTACHMENTS 1. Draft Letter to County Board of Supervisors 1. September 18, 2017 Letter of Opposition to H.R. 597 2. November 6, 2018 Letter of Opposition to H.R. 597 3 I:v 1 MOVI l l -M -11i1 Sonoma County Board of Supervisors 575 Administration Drive, #100A Santa Rosa, CA 95403 RE: HR 597 — Oppose Honorable Chair and Members of the Board: At its regular meeting of November 6, 2017, the Petaluma City Council authorized me to request text changes to the Amendment to the Memorandum of Agreement (MOA) between the County of Sonoma and Lytton Rancheria, scheduled for consideration at your August 7, 2018 meeting. Supervisor Rabbitt and your Board are aware of the City's opposition to H.R 597. The reasons for our opposition are clearly stated in our correspondences to our federal legislators dated September 18 and November 6, 2017, copies of which are enclosed with this letter. Our November correspondence offered amendments to the Bill that would make permanent the ban on gaming on the lands in question to be taken into trust by the Rancheria, rather than for the two-year period contemplated in the Bill. You are also aware that on July 11, 2018, the Senate Committee on Indian Affairs approved H.R. 597. In doing so, the Senate Committee directed the County and the Rancheria to amend the 2015 MOA to make permanent the ban on gaming on the lands in question to be taken into trust by the Rancheria. The amendments to the MOA before you for consideration on August 7, 2018 reflect that direction. The serious concern expressed by the Petaluma City Council is that an MOA can be modified, and enforceable between the parties, but not by a party outside the agreement. While we do not doubt the intentions or sincerity of the current Board of Supervisors, or the Lytton Tribal Council, over a period of decades, players and positions can change. The safeguards in the current MOA could well be eliminated by the action of future Boards and Tribal Councils. To address this concern, the City Council proposes that Section 1 of the proposed Amendment be further amended (proposed change underscored) to read: " 1. Section 6.3 of the Agreement is amended to read as follows: The Tribe agrees not to engage in any Gaining or Gaming Activities in Sonoma County during the term of this Agreement Nohvithstanding this, upon the enactment into lair of HR. 597, the Lytton Rancheria Homelands Act of 2017, as passed by the U.S. House of Representatives, or any other federal legislation containing substantially identical language to H.R. 597 in the 1151h Congress (the "Federal Legislation'), the Tribe agrees to a permanent prohibition on engaging in any Gaining or Gaming Activities in Sonoma C011170�. Except with regard to the Federal Legislation, nothing in this provision shall impact or diminish the Comno) 's right to object to andlor connnent on lands being taken into trust, whether or not for the purposes of Gaining. Any disputes arising under this section are 4 subject to sections II, XI, XIV and XV of this Agreement, which are incorporated by reference. Nohvithstanding Section 10.1 of the Agreement, the City ofPetalznna shall be a third party benefician, in accordance i,vith Civil Code section 1559° or purposes of this section 6.3. Notwithstanding Section 10.2, the Parties may not amend this Section 6.3 without first obtaining the written consent of the Cite of Petaluma. Nohvithstanding Section 14.5 or any other provision of the Agreement, the Cith of Petalanna nnay judicially enforce this Section 6.3 ygainst the Counb� ofSonoma. The City Council appreciates the stewardship efforts the Board of Supervisors and the Lytton Tribal Council have made thus far regarding lands to be taken into trust by the Rancheria and the ban on gaming there that is important to residents in Petaluma and throughout the County. The addition of our proposed language strengthens the safeguards currently found in the proposed amendment. For that reason, your favorable consideration of our additions is respectfully requested. Sincerely, David Glass Mayor 5 ATTACHMENT 2 David Glass Mayor Chris Albertson Teresa Barrett Mike Healy Gabe Kearney Dave King Kathy Miller Councibnembers City Manager's Office 11 English Street Petaluma, CA 94952 Phone (707) 778-4345 Fax (707) 778-4419 E -Mail: citymgr&i petahana.ca.us Economic Developinent Phone (707) 778-4549 Fax (707) 778-4586 Housing Division Phone (707) 778-4555 Fax (707) 778- 4586 Information Technology Division Phone (707) 778-4417 Fax (707) 776-3623 Risk Management Division Phone (707) 776-3695 Fax (707) 776-3697 OPPO TYYslYY September 18, 2017 Honorable Dianne Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510 RE: HR 597 — Oppose Dear Senators Feinstein and Harris: Honorable Kamala Harris United States Senate 112 Hart Senate Office Building Washington, DC 20510 We write in opposition to HR 597 (Denham), which would take into federal trust lands in Sonoma County adjacent to the Town of Windsor on behalf of the Lytton Rancheria of California. As you know, legislation is necessary because the Lytton Rancheria, which was not a federally recognized tribe in 1934, faces what appears to be an insurmountable Carcieri problem. HR 597 represents another.unsavory step in the reservation shopping saga in the North Bay. The North Bay counties in general, and Petaluma in particular, are highly sensitized to reservation shopping efforts by both -newly recognized and long established tribes. The Graton Rancheria, established by Congress in 2000, after being pressured to abandon its original Highway 37 site, eyed Petaluma before settling on Rohnert Park. Every single Rohnet-t Park councilmember who supported bringing the Graton casino there was defeated in their next election. In Petaluma's case, the Dry Creek band, which operates River Rock casino in northern Sonoma County, purchased a ranch adjacent to Highway 101 on our southern boundary shortly after the Graton Rancheria announced plans for Rohnert Park. The Dry Creek band has agreed, in negotiations with the County of Sonoma centered on River Rock, not to seek for several more years to have the Petaluma parcel taken into federal trust. But that agreement will expire, and we are faced with the prospect of . another potential casino or, at the least, intensive development on lands zoned for agriculture outside our Urban Growth Boundary in a highly visible community separator. The County of Sonoma has negotiated a Memorandum of Agreement with the Lytton Rancheria obligating it to support the Lytton's land -to -trust efforts. The County apparently felt it negotiated the best deal possible under the legal circumstances, although we note that it mistakenly contemplated that the land might be taken into trust by the Department of the Interior without congressional action. Because of this MOA, \-ve understand that Sonoma County supervisors are being told by their legal coLuzsel that they cannot oppose efforts to take the land into trust for the M Lytton, even if that is their personal viewpoint. Similarly, our colleagues on the Windsor Town Council are apparently still hopeful of obtaining fimding from the Lytton to build a community pool. A particularly troublesome aspect of HR 597 is Section 5. Section 5(b)(1) provides that additional lands taken into trust for the Lytton in Sonoma County will not be gaming eligible until after March 15, 2037. Section.5(b)(2) makes the prohibition on gaming permanent for future trust lands in Sonoma County located north of the intersection of Highways 12 and 101. The two largest cities in Sonoma County located south of the intersection of Highways 12 and 101 are Rohnert Park and Petaluma. No new casino would want to locate in Rohnert Park because the Graton casino is already there. Conversely, locating in or near Petaluma would be attractive as the Dry Creek investment demonstrates — because it would leapfrog the Gratbn casino and be closer to the central Bay Area. Section 5 of HR 597 paints a big bull's eye on the City of Petaluma. Section 5 is even more problematic because it could be construed as overriding IGRA and making lands taken into trust for the Lytton in or near Petaluma gaming eligible, even though such lands would not otherwise be gaming eligible under IGRA. See 25 U.S.C. § 2719(a)&(b). For the above reasons, we respectfully request that Hk 597 not be approved. a, avid Glass Mayor Chris Albertson Councilmember Gabe I earney Councilmember U Com—. {athy A' filler Councilmember Teresa Barrett Vice Mayor d-,�Z Mike Healy Councilmember leoe (--- Dave King Councilmember 7 David Glass Mayor Chris Albertson Teresa Barrett Mike Healy Gabe Kearney Dave King Kathy Miller Councilinemhers City Manager's Office 11 English Street Petaluma, Cif 94952 Phone (707) 778-4345 Fax (707) 778-4419 E -Mail: cit}nngr&i petahona.ca.its Economic Development Phone (707) 778-4549 Fax (707) 778-4586 Hoasing.Divisian Phone (707) 778-4555 Fax (707) 778- 4586 Information Technologv Division Phone (707) 778-4417 Fax (707) 776-3623 Risk Management Division Phone (707) 776-3695 Fav (707) 776-3697 CITY OF A 1 POST ®FFICE Box 61 PETALUMA, CA 94953-0061 November 6, 2017 Honorable Dianne Feinstein United States Senate 331 Hart Senate Office Building Washington, DC 20510 RE: HR 597 — Oppose Dear Senators Feinstein and Harris: ATTACHMENT 3 Honorable Kamala Harris United States Senate 112 Hart Senate Office Building Washington, DC 20510 At its regular meeting of November 6, 2017, the Petaluma City Council adopted the attached resolution, offering proposed amendments to HR 597, and indicating our continuing opposition to the Bill. We write to follow our September 18 letter opposing HR 597 (Denham), and a subsequent conference call with members of your staff. Thank you for the prompt response to our letter. In the conference call, John Watts of Senator Feinstein's office asked how the City would like to see section 5 of HR 597 changed to address the specific concerns pertaining to -Petaluma that were raised in the September 18 letter. The Council has considered Mr. Watts' question, and proposes.the statutory language modifications shown in Exhibit 1 of the attached resolution. From our perspective, HR 597 would pose less of a threat if the preferred modification was amended into the bill. However, even with the preferred amendment, the City of Petaluma will remain opposed to HR 597. Our reasoning follows: All nine cities in Sonoma County, including both Petaluma and Windsor, are surrounded by voter -approved Urban Growth Boundaries to prevent sprawl type development. Layered over that are voter -approved Urban Separators and county zoning that support the same policy goals. These policies are enormously popular with voters. Petaluma views the Lytton proposal and HR 597 as a pernicious test case that could serve as a model for frustrated landowners and anti -zoning developers to partner with a tribe and blow up carefully designed regulations limiting sprawl development on lands adjoining cities throughout the region. The City of Petaluma is surrounded by privately owned ranches and farms outside our Urban Growth Boundary in areas zoned for agriculture, many of P which are also located in voter -approved community separators. Under existing policies, these lands are off limits to intense development. As you know, there are enormous financial incentives to find ways to develop such lands, especially in the Bay Area, and that financial pressure will only intensify in the future. The Lytton proposal and HR 597 provide a blueprint for wrecking these carefully crafted land use policies. For the above reasons, the City of Petaluma continues to respectfully request that HR 597 not be approved. Sincerely, David Glass May or r Chris Albertson Coun 'member Ga e earn �11__(,eA_ /� /row L-_ thy Miller Teresa Barrett Vice Mayor 1 Mike Healy Councilmember Dave King Councilmember 9 Resolution No. 2017-167 N.C.S. of the City of Petaluma, California RESOLUTION AUTHORIZING A LETTER OFFERING AMENDED LANGUAGE, AND INDICATING CONTINUING OPPOSITION, I'O HR S97 (DENHAM) WHEREAS, the City Council sent a letter of opposition to Senators Dianne Feinstein and Kamala Harris on September 18, 2017 opposing HR 597; and WHEREAS, in subsequent conversations with Senator Feinstein's office, the City was asked for specifics on how to change Section 5 of HR 597; and WHEREAS, the City- has received direction to present the proposed statutory language modifications shown in Exhibit 1 to the letter of opposition; and WHEREAS, the City of Petaluma remains opposed to HR 597, NOW, THEREFORE, BE IT RESOLVED that the City Council offers proposed amendments to Section 5 of HR 597 as detailed in Exhibit 1 to this Resolution and indicates its continuing opposition to the Bill, Under the power and authority conferred upon this Council by the Charter of said City, REFERENCE: 1 hereby certify the foregoing Resolution was introduced and adopted by the Approved asAl Council of the City of Petaluma at a Regular meeting on the 6'h day of November, fo.. t j 2017, by the following vote: , City AttomS)L.` AYES: Albertson, Vice Mayor Barrett, Mayor Glass, Hcaly, Kearney, King, Miller NOES: None ABSENT: None - a ABSTAIN: None ArrEsr: City Clerk C --Mayor Resolution No. 20.17-167 N.C.S. 10 Exhibit 1 to Resolution HR 597, Section 5(b) 1. Lin tiage iii current bill: (b) OTh1;R LANDS TAKEN INTO TRUST.— (1) TIME-LIMITED PROHIBITION.—Lands taken into trust for the benefit of the Tribe in Sonoma County after the date of the enactment of this Act shall not be eligible for gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2710 et seq.) until after March 1.5, 2037. (2) PERMANENT PROHIBITION. -Notwithstanding paragraph (1), lands located north of a line that runs in a cardinal cast and west direction and is defined by California State Highway Route 12 as it crosses through Sonotna County at highway 101 as they are physically on the ground and used for transportation on January 1, 2016, and extending to the furthest extent of Sonoma County shall not be eligible for gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2710 et seq.). 2. City of Petaluma's Preferred Modification: (b) OTHER LANDS TAKEN INTO TRUST.— (1) PERMANENT PROHIBITION.—Lands taken into trust for the benefit of the Tribe in Sonoma County after the date of the enactment of this Act shall not be eligible for gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2710 et seq). 3. City of Petaluma's Second Choice Modification: (b) OTHER LANDS TAKEN INTO TRUST.— (1) TIME-LIMITED PROHIBITION.—Lands taken into trust for the benefit of the Tribe in Sonoma County after the date of the enactment of this Act shall not be eligible for gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2710 et seq) until after March 15, 2037. After that date, lands taken into trust for the benefit of the Tribe in Sonoma County would not automatically be eligible for gaming but would still need to qualify as eligible for gaming pursuant to 25 U.S.C. 2519 or other statute. (2) PERMANENT PROHIBITION.—Notwithstanding paragraph (1), lands located north of a line that runs in a cardinal east and west direction and is defined by California State Highway Route 12 as it crosses through Sonoma County at Highway 101 as they are physically on the ground and used for transportation on January 1, 2016, and extending to the furthest extent of Sonoma County shall not be eligible for gaming under the Indian Gaining Regulatory Act (25 U.S.C. 2710 et seq). Resolution No. 2017-167 N.C.S. I