BILL ANALYSIS Ķ
AB 1418
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1418 (Hall)
As Amended August 31, 2011
2/3 vote. Urgency
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|ASSEMBLY: | |(May 26, 2011) |SENATE: |37-0 |(September 8, |
| | | | | |2011) |
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(vote not relevant)
Original Committee Reference: G.O.
SUMMARY : Ratifies the tribal-state gaming compact entered into
between the State of California and the Pinoleville Pomo Nation,
executed on August 8, 2011.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Repeal the ratification of the tribal-state gaming compact
entered into between the State of California and the
Pinoleville Pomo Nation, executed on March 10, 2009.
2)Provide for the legislative ratification of a revised
tribal-state gaming compact between the State of California
and Pinoleville Pomo Nation, authorizing them to commence
Class III gaming with up to 900 gaming devices, executed on
August 8, 2011.
3)Requires contributions to the Indian Gaming Special
Distribution Fund (SDF) and the Revenue Sharing Trust Fund
(RSTF), as specified, instead of requiring revenue
contributions be made to the General Fund (GF).
4)States upon all the necessary approvals, the compact will be
valid until December 31, 2031.
5)Add an urgency clause.
EXISTING LAW :
1)Provides, under the Indian Gaming Regulatory Act (IGRA), for
the negotiation and conclusion of compacts between federally
recognized Indian tribes and the state for the purpose of
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conducting class III gaming activities on Indian lands within
a state as a means of promoting tribal economic development,
self-sufficiency, and strong tribal governments.
2)Authorizes the conduct of class III gaming activities to the
extent such activities are permitted by state law, a gaming
compact has been concluded by a federally recognized tribe and
the state, and the compact has been approved by the Secretary
of the Interior.
3)Limits the operation of class III gaming activities to Indian
lands acquired on or before October 17, 1988. Provides for
certain exceptions to conduct gaming activities on Indian
lands acquired after October 17, 1988.
4)Defines Indian lands to mean all lands within the limits of
any Indian reservation, and any lands title to which is either
held in trust by the United States for the benefit of any
Indian tribe or individual or held by any Indian tribe or
individual subject to restriction by the United States against
alienation and over which an Indian tribe exercises
governmental power.
5)Requires the state to negotiate to conclude a compact in good
faith with an Indian tribe having jurisdiction over the Indian
lands upon which the class III gaming activity is to be
conducted.
6)Provides the United States district courts with jurisdiction
over any cause of action initiated by a tribal government
alleging that the state failed to negotiate in good faith to
conclude a compact.
7)Prescribes the remedy, mediation supervised by the courts, if
it is found that the state failed to negotiate in good faith
to conclude a compact.
8)CEQA requires a lead agency to prepare, or cause to be
prepared, and certify the completion of, an environmental
impact report on a project, as defined, that it proposes to
carry out or approve that may have a significant effect on the
environment, as defined, or to adopt a negative declaration if
it finds that the project will not have that effect.
9)Authorizes the Governor, under the California Constitution, to
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negotiate and conclude compacts, subject to ratification by
the Legislature.
AS PASSED BY THE ASSEMBLY , this bill revised the definition of
key employee as any natural person employed in the operation of
a gambling enterprise in a supervisory capacity or empowered to
make discretionary decisions with regard to gambling operations,
and deletes the term "pit boss" in this context, change the term
"shift boss" to "shift manager," and specifically include
surveillance managers or supervisors within the definition.
FISCAL EFFECT : Unknown
COMMENTS : This bill was substantially amended in the Senate and
the Assembly-approved provisions of this bill were deleted.
Purpose of the bill : The Pinoleville Pomo Nation (Tribe) is a
federally recognized Indian tribe listed in the Federal Register
as the Pinoleville Pomo Nation, California (formerly the
Pinoleville Rancheria of Pomo Indians of California). The
Tribe's reservation is the Pinoleville Rancheria. The rancheria
occupies approximately 100 acres on the northern edge of Ukiah
in Mendocino County. The Tribe has a membership of
approximately 250 members. The Tribe is governed by an elected
council of seven members.
On March 10, 2009, the State of California and the Tribe
executed a tribal-state class III gaming compact, which was
ratified by the Legislature with the passage of AB 122 (Coto),
Chapter 3, Statutes of 2009, and subsequently submitted to the
U.S. Department of the Interior for approval. On February 25,
2011, the Department of the Interior disapproved the 2009
compact in light of the decision of the United States Court of
Appeals for the Ninth Circuit in Rincon Band of Luiseno Mission
Indians of the Rincon Reservation v. Schwarzenegger (9th Cir.
2010) 602 F.3d 1019 ("Rincon"). The basis for the Department of
Interior's rejection was that the Compact, was unfair to the
tribe and that it violated IGRA by requiring revenue sharing
payments to the state General Fund (GF) and to the extent to
which revenue sharing and variations on tribal gaming
exclusivity constituted 'meaningful concessions' under IGRA.
Governor Brown's office states, "in light of the Tribe's
significant needs and investment of resources in furtherance of
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its proposed gaming project the State and the Tribe decided to
enter into a new compact rather than any potential federal court
review of the February 25, 2011, decision of the Department of
the Interior."
According to the Governor's office, "the compact includes terms
that are intended to address concerns raised by the Department
of the Interior in disapproving the 2009 compact. The primary
difference between this compact and the 2009 Compact is the
revenue sharing requirements between the State and the Tribe
with no revenue payments being paid into the General Fund."
Under the terms of the compact, the Tribe may engage in Class
III gaming only on eligible Indian lands at a single gaming
facility located within the boundaries of the Pinoleville
Rancheria, as those boundaries exist as of the execution date
of the Compact.
According to the Governor's Office," the compact includes
provisions to protect employees and patrons, and measures that
the tribe must take to protect the environment during the
construction and operation of gaming facilities."
The compact allows the operation of a maximum of 900 slot
machines, and up to 15% of the casino's net win from gaming
devices shall be paid into the Special Distribution Fund (SDF)
created by the Legislature, to benefit local communities, as
well as problem gambling mitigation and regulation provisions.
The compact requires regular audits of gaming operations, and
supersedes the 2009 compact between the Tribe and the State of
California.
The compact will run through December 31, 2031.
The author states, this compact is intended to assist the
Pinoleville Pomo Nation in improving the Tribe's socio-economic
status, assist in economic self-sufficiency and promote the
stability and security of the Tribe and its families.
The author further states, the Pinoleville gaming project will
result in an immediate influx of new, well-paying construction
jobs, engineering and associated consulting services in its
initial construction phase. Additionally, the new Pinoleville
facility will attract increased tourism and revenue that will
contribute to the financial growth of local businesses and
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groups in the region. The result will be a positive impact on
state and county tax revenue.
Other provisions of the compact include:
Authorized facilities : Not more than one Gaming Facility
(casino on eligible Indian lands at a single casino located
within the boundaries of the Tribe's Nation as those boundaries
exist as of the execution date of this Compact.
Authorized gaming devices : Authorizes the Tribe to operate no
more than 900 Gaming Devices.
Authorized and permitted Class III gaming : The Tribe is
authorized to operate only the following Gaming Activities under
the terms and conditions set forth in this Compact: 1) Gaming
Devices. 2) Any banking or percentage card games. 3) Any
devices or games that are authorized under state law to the
California State Lottery, provided that the Tribe will not offer
such games through use of the Internet unless others in the
state are permitted to do so under state and federal law.
Nothing shall be construed to preclude the Tribe from offering
Class II gaming or preclude the negotiation of a separate
compact governing the conduct of off-track wagering at the
Tribe's Gaming Facility.
Revenue contribution SDF : The Tribe shall pay quarterly to the
Special Distribution Fund (SDF) created by the Legislature, in
accordance with the following schedule:
Number of Gaming Devices inPercentage of Average
Quarterly Device Base Gaming Device Net Win
1-100 0%
101-350 7%
351-750 10%
751-900 15%
The payment specified herein has been negotiated between the
parties as a fair contribution, based upon the Tribe's market
conditions, its circumstances, and the rights afforded under
this Compact.
Exclusivity: Provides that in the event the exclusive right of
Indian tribes to operating gaming devices in California is
abrogated by the enactment, amendment, or repeal of a state
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statute or constitutional provision, or the conclusive and
dispositive judicial construction of a statute or the state
Constitution by a California appellate court after the effective
date of this Compact, that gaming devices may lawfully be
operated by another person, organization, or entity (other than
an Indian tribe pursuant to a compact) within California, the
Tribe shall have the right to exercise one of the following
options: 1) Terminate this Compact, in which case the Tribe
will lose the right to operate gaming devices and other Class
III gaming authorized by this Compact; or, 2) Continue under the
Compact with an entitlement to a reduction of the above
referenced rates following conclusion of negotiations, as
specified.
Revenue Sharing Trust Fund : The Tribe agrees that it will pay
into the Revenue Sharing Trust Fund (RSTF) on January 30 of the
following year for distribution on an equal basis to Non-Gaming
and Limited Gaming Tribes the following amounts:
Number of Gaming Devices Operated Annual Payment
0-350 $0 per Gaming Device
351-750 $900 per Gaming Device
751-900 $1,950 per Gaming Device
Enhanced audit and compliance review procedures : In addition to
providing for an annual independent audit, the amended compact
allows the state to conduct its own annual audit and compact
compliance review.
Inspection of slot machines : Slot machines will have to be
tested, approved and certified by an independent gaming test
laboratory and the tribal gaming agency to ensure that they are
being operated according to specified technical standards.
Allows the California Gambling Control Commission (CGCC) to
review the Tribe's technical standards, regulations and internal
controls applicable to slot machines.
Minimum internal control standards (MICS) : The Tribe must adopt
and comply with standards that meet or exceed the federal
National Indian Gaming Commission standards. The MICS are
incorporated into the compact as an appendix, which shall be
updated periodically by the CGCC and the Tribal Gaming Agency,
to ensure the MICS keep up with changing technology and industry
standards.
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Building and safety standards : The casino must meet or exceed
the California Building Code and Public Safety Code as
applicable to Mendocino County.
Patron protections : The Tribe agrees to binding arbitration
before a retired judge for disputes over patron injuries and
gambling.
Environmental protections : The Tribe must prepare a Tribal
Environmental Impact Report (TEIR) prior to initiating a
development project for a facility, to measure off-reservation
environmental impacts, consistent with standards set forth in
the California Environmental Quality Act (CEQA). The Tribe must
also negotiate mitigation of any off-reservation impacts with
the County.
Employee protections : The Tribe has granted employees the right
to collectively bargain. The Tribe has agreed to participate in
the state's worker's compensation system and unemployment
insurance program, to comply with federal and state occupational
health and safety standards and to consent to the jurisdiction
of the state agencies and courts enforcing all of those
standards. The Tribe also has agreed to enhanced employment
discrimination provisions.
Problem gambling : The Tribe must train supervisors and floor
employees on identifying and managing problem gambling, include
a responsible gaming message in advertising, provide signage and
education materials at conspicuous locations aimed at preventing
problem gambling and adopt a code of conduct derived from the
American Gaming Association's code.
Child and Spousal Support : Requires the Tribe to comply with
employee earnings withholding orders for child or spousal
support.
Tobacco control : Requires the Tribe to provide a non-smoking
area in the Gaming Facility and not to offer or sell tobacco to
anyone that is under 18 years of age. Requires the Tribe to
utilize a ventilation system throughout the Gaming Facility that
exhausts tobacco smoke.
Labor provisions : If the Tribe employs 250 or more persons in a
tribal casino facility, then the provisions of the Tribal Labor
Relations Ordinance (TLRO) become effective. TLRO provides for
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a secret ballot election.
Sexual harassment and discrimination complaints: Requires the
Tribe to adopt and comply with standards no less stringent than
federal laws and state laws forbidding harassment, including
sexual harassment, in the workplace, and forbidding employers
from discrimination on the basis of race, color, religion,
ancestry, national origin, gender, marital status, medical
condition, sexual orientation, age, or disability, with the
exception that the Tribe may give preference to members of
federally recognized tribes, as specified.
When will Compact become effective ? The compact is not
effective until it is ratified in accordance with state law, and
notice of approval by the U.S. Secretary of the Interior is
published in the Federal Register. Upon all the necessary
approvals, the compact will be valid until December 31, 2031.
Intergovernmental agreement and MOU : On April 26, 2011, the
Mendocino County Board of Supervisors voted to form an Ad Hoc
Committee to specifically work with the Tribe on the proposed
casino project. As of this date (September 9, 2011, the Tribe
has not entered into an enforceable written mitigation agreement
(Intergovernmental Agreement and MOU) with Mendocino County that
includes provisions for the mitigation of any significant effect
on the off-reservation environment, as specified, as well as
compensation for public services, including law enforcement,
fire protection, emergency medical services, wastewater
services, and transportation enhancements. The Tribe intends to
sit down with county officials to conclude an intergovernmental
agreement with the County that will satisfactorily address
off-reservation impacts from the proposed casino as soon as this
Compact is ratified.
UNITE HERE Memorandum of Agreement (MOU) : On September 29,
2009, the Pinoleville Pomo Nation negotiated an MOU with the
Hotel Employee and Restaurant Employee Union (UNITE HERE),
recognizing HERE's ability to organize eligible employees of the
casino. Otherwise, the compact has the same Tribal Labor
Relations Ordinance from the 1999 compacts.
Revenue Sharing Trust Fund : The Tribe will continue to receive
the $1.1 annual payment from the Revenue Sharing Trust Fund
established in the 1999 compacts, if the tribe operates less
than 350 gaming devices. A tribe operating under 350 gaming
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devices is considered a "non-compact" tribe and is eligible for
revenue payments from gaming tribes under the 1999 compacts.
Prior legislation : AB 1020 (Chesbro), Chapter 27, Statutes of
2011. Ratified a revised compact between the State of
California and the Habematolel Pomo of Upper Lake executed by
Governor Brown on March 17, 2011. Ratification of this revised
compact authorizes the Upper Lake Rancheria to operate up to 750
slot machines with up to 15% of the net-win from those gaming
devices be paid into SDF and the RSTF, instead of requiring
revenue contributions be made to the General Fund as provided by
the 2009.
AB 122 (Coto), Chapter 3, Statutes of 2010. Ratified a
tribal-state gaming compact between the State of California and
the Pinoleville Pomo Nation, executed on March 10, 2009.
SB 89 (Budget and Fiscal Review Committee), Chapter 1, Statutes
of 2010. Ratifies the tribal-state gaming compact between the
State of California and the Habematolel Pomo of Upper Lake,
executed on September 2, 2009.
AB 3072 (Price), Chapter 334, Statutes of 2008. Ratified the
first amendment to a tribal-state gaming compact entered into
between the State of California and the Shingle Springs Band of
Miwok Indians, executed on June 30, 2008.
SB 106 (Wiggins), Chapter 37, Statutes of 2007. Ratified a new
compact between the state and the Yurok Tribe of the Yurok
Reservation (Yurok).
SB 174 (Ducheny), Chapter 39, Statutes of 2007. Ratified the
first compact amendment to the compact between the state and
Sycuan.
SB 175 (Ducheny), Chapter 38, Statutes of 2007. Ratified the
first compact amendment to the compact between the state and
Morongo.
SB 903 (Padilla), Chapter 40, Statutes of 2007. Ratified the
first compact amendment to the compact between the state and
Pechanga.
SB 941 (Padilla), Chapter 226, Statutes of 2007. Ratified the
first compact amendment to the compact between the state and San
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Manuel.
SB 957 (Torlakson), Chapter 41, Statutes of 2007. Ratified the
first compact amendment to the compact between the state and
Agua Caliente.
SB 470 (Ducheny), Chapter 527, Statutes of 2006. Ratified the
first amendment to the compact between the state and the Quechan
Tribe of the Fort Yuma Reservation (Quechan).
SB 1117 (Burton), Chapter 856, Statutes of 2004. Ratified two
new and two amended compacts entered into between the state and
the following tribes: Coyote Valley Band of Pomo Indians (new
compact); Fort Mojave Indian Tribe (new compact); Buena Vista
Rancheria of Me-Wuk Indians (amended compact); and, Ewiiaapaayp
Band of Kumeyaay Indians (amended compact).
AB 687 (Nuņez), Chapter 91, Statutes of 2004. Ratified
amendments to five compacts entered into between the state and
the following tribes: Pala Band of Mission Indians; Pauma Band
of Luiseno Mission Indians of the Pauma and Yuima Reservation;
Rumsey Band of Wintun Indians; United Auburn Indian Communities;
and, Viejas Group of Kumeyaay Indians. Provides for the
issuance of bonds in an amount not to exceed $1.5 billion by the
California Infrastructure and Economic Development Bank and
requires the net proceeds of the sale of the compact assets to
be deposited in the Traffic Congestion Relief Fund and the
Transportation Deferred Investment Fund.
SB 930 (Burton) Chapter 802, Statutes of 2003. Ratified a
compact between the state and the Torres-Martinez Desert
Cahuilla Indians.
SB 411 (Ducheny), Chapter 790, Statutes of 2003. Ratified
compacts between the state and the La Posta Band of Diegueno
Mission Indians and the Santa Ysabel Band of Diegueno Mission
Indians in San Diego County.
Proposition 1A. Adopted by the people of California on March 7,
2000. Modifies the prohibition against casinos and lotteries in
the California Constitution to authorize the Governor to
negotiate compacts, subject to legislative ratification, for the
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operation of slot machines, lottery games, and banking and
percentage card games by federally recognized Indian tribes on
Indian lands in California, in accordance with federal law.
Authorizes slot machines, lottery games, and banking and
percentage card games to be conducted and operated on Indian
lands subject to the compacts.
AB 1385 (Battin), Chapter 874, Statutes of 1999. Designates the
Governor as the state officer responsible for negotiating and
executing compacts between the state and federally recognized
Indian tribes located in the state. Ratifies 57 compacts and
creates two special funds in the State Treasury (SDF and RSTF)
for the deposit of revenues derived from Indian gaming and
gaming device licensing fees.
Proposition 5. Adopted by the people of California on November
3, 1998. Specified the terms and conditions of mandatory
compacts between state and tribal governments for Class III
gambling on Indian lands. Amended California law to allow slot
machines and banked card games at tribal casinos. Provided for
contributions to trust funds benefiting non-gaming tribes,
statewide emergency medical care programs, and programs
benefiting communities near tribes. Allowed tribes to retain a
monopoly on authorized gambling. Proposition 5 was found to be
unconstitutional because it amended a provision of the
Government Code and did not amend the Constitution. The
proposition was invalidated in its entirety, save the final
sentence of Government Code Section 98005, containing the
state's consent to federal suits brought by California tribes
pursuant to IGRA.
SB 287 (Burton), Chapter 409, Statutes of 1998. Ratified 11
compacts negotiated between the State of California and Indian
tribes that permitted class III video gaming devices on tribal
lands and established a process for ratifying other compacts.
SB 8 (Lockyer), Chapter 867, Statutes of 1997. Repealed the
Gaming Regulation Act and enacted the Gambling Control Act of
1997. Established CGCC and charges it with, among other things,
the authority to issue, deny, revoke, suspend, or impose
conditions, restrictions, or limitations on licenses, permits,
or approvals to ensure that unsuitable or unqualified persons
are not involved in the operation of gambling. Establishes the
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Bureau of Gambling Control (formerly known as the Division of
Gambling Control) within the Department of Justice and charges
it with, among other things, the authority to investigate the
background and qualifications of licensees and enforce the laws
related to gambling.
Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531
FN: 0002862