BILL ANALYSIS Ķ
AB 1418
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CONCURRENCE IN SENATE AMENDMENTS
AB 1418 (Hall)
As Amended August 31, 2011
2/3 vote. Urgency
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|ASSEMBLY: |75-0 |(May 26, 2011) |SENATE: |39-0 |(September 8, 2011) |
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|COMMITTEE VOTE: |16-0 |(September 9, 2011) |RECOMMENDATION: |concur |
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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.
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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
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
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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
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
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significant needs and investment of resources in furtherance of 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 groups in the region.
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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 statute
or constitutional provision, or the conclusive and dispositive
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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.
Building and safety standards : The casino must meet or exceed the
California Building Code and Public Safety Code as applicable to
Mendocino County.
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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 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
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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 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
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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
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
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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 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
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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 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: 0002889
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