Interior Lost Compacts – Declare Them Approved

Federal officials yesterday finalized what they have portrayed as the accidental approval of four gambling agreements that still face statewide votes on the Feb. 5 ballot.

The action added an additional layer of legal confusion to the deals for Sycuan of El Cajon, Pechanga of Temecula, Agua Caliente of Palm Springs and the Morongo tribe of east Riverside County.

The four tribes applauded the move but said they remain focused on the campaign to sell their compacts to California voters.

The tribes said they have no immediate plans to start expanding their gambling operations under the deals, which authorize up to a total of 17,000 more slot machines on the four reservations.

Gov. Arnold Schwarzenegger, who negotiated the agreements, said through a spokeswoman that he believes final voter approval is still necessary, a position shared by a key federal official, George Skibine of the Indian gaming office of the Bureau of Indian Affairs.

An attorney for Sycuan and Morongo was not so sure, although he predicted a Feb. 5 victory will render the legal question moot.

The four compacts were sent to the Interior Department on Sept. 5. They arrived two days later, but there is no record of their whereabouts until Nov. 26, when someone dropped them in Skibine's in-box.

Federal law gives the Interior Department 45 days to consider compacts. If they are not acted upon during that span, they are deemed approved under federal law.

Skibine concluded this month that, with the compacts lost at the Interior Department for 80 days, he had no choice but to declare the agreements approved. At the time, he noted that they would not take effect until notice of the approval was published in the Federal Register and that there was no deadline for that to happen.

But Skibine said Interior officials recently told him “to send the notices through the system.” The notices, which declare each of the four compacts “now in effect,” were published in the register yesterday.

“It is meaningless,” said Scott Macdonald, a spokesman for the opposition campaign that qualified the ballot measures to block the compacts. “There is no deal for the federal government to be reviewing. ... Under the California Constitution, these deals are in a suspended state.”

The referendum measures put the compacts on hold even though they were ratified by the Legislature. If the vote goes against the compacts – and recent polls suggest it's a toss-up – the ratification bills would be repealed.

If that happens, the legal weight of the federal approval would become the subject of a long legal fight, several attorneys said.

“There are certainly arguments to be made that federal law is paramount, and ... there are, I am sure, arguments that can be marshaled the other way,” said veteran tribal attorney George Forman, who represents Sycuan and Morongo.

A Schwarzenegger spokeswoman said the administration contacted the Interior Department in recent weeks, urging officials to sign off on the compacts, which offer a large, new revenue source for a strapped state budget.

“We did provide information and clarification to get the compacts approved and published,” spokeswoman Sabrina Lockhart said, declining to elaborate.

But Lockhart said the compacts themselves contain a requirement of state ratification, which now hinges on the Feb. 5 vote.

“We only deemed them approved, and only to the extent they complied with the Indian Gaming Regulatory Act,” Skibine said. “Part of the compliance would be if they had been validly entered into” with the state. He reiterated that the act requires state approval.

Nonetheless, the four tribes welcomed the news.

“With publication, the governor, state Legislature and now the federal government have all approved the agreement,” Pechanga Chairman Mark Macarro said in a statement. “Clearly the efforts to break these comprehensive agreements are a waste of time and money.”

In the case of Sycuan, whose compact authorizes a contentious off-reservation casino in the Dehesa Valley, federal approval had been uncertain.

“Today is a historic day for the Sycuan tribe,” Chairman Danny Tucker said in a statement. “We are pleased that the Department of Interior has published notice that our amended compact has been approved in accordance with federal law.”

Sycuan could expand from 2,000 to 5,000 slots under its new compact, but it has no “immediate plans to install any more,” spokesman Adam Day said.
“We're awaiting the outcome of the referendum campaign,” Day said.

Because the 45-day period had expired, neither Skibine nor anyone else at the Interior Department could even review the compacts. That, along with the more tenuous legal status of compacts deemed approved, could backfire, said Scott Crowell, an attorney who represents the Rincon band of north San Diego County and tribes in seven other states.

“I don't believe it's helpful to the four tribes,” Crowell said. “Frankly, I think this development makes their agreements far more vulnerable to a legal attack.”

In addition to the compacts, the Interior Department's action approved largely identical memorandums of agreement in which the four tribes promised to maintain internal security controls.

The tribes also agreed to permit state monitoring to ensure compliance with those federal standards, to make annual financial audits available for state review and to enforce child support orders issued by state courts.

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