It's time for a reality check
on tribal sovereignty and how it will affect the mitigation process for the Federated Indians of Graton Rancheria's casino, should it be built.
This past March, the Draft
Environmental Impact Statement (DEIS) for the Federated Indians of Graton Rancheria's casino project ( http://www.gratoneis.com ) was released to the public. It is quite clear that a tunnel-vision
approach, minimizing or ignoring significant impacts upon the community was the preferred strategy by the consultants hired
by the NIGC to prepare the DEIS, and it contains numerous, serious flaws, including the mitigations proposed to offset the
serious, negative impacts of the casino..
Throughout the DEIS,
most mitigation comments begin with, "The tribe will…" or "the tribe shall…" In each case,
the consultants fail to identify a single agency or individual responsible to ensure that the tribe actually will or shall
do what is identified as a mitigation. This is an important detail, because the Federated Indians of Graton Rancheria
is not accountable by federal and state agencies or courts, as any "John Doe" developer would be.
The Federated Indians of Graton Rancheria is a very unique applicant as a
tribal government, and under federal Indian policy, is legally accountable to few. The Federated Indians of Graton Rancheria's is
under no enforceable legal obligation to implement a single mitigation mentioned in its woefully inadequate DEIS. It cannot
be held accountable in federal or state court by local governments or citizens for failure to implement a mitigation. Once
the land is in trust, the Federated Indians of Graton Rancheria's can do whatever it wants with the property.
Here's what Sonoma County said in its Comments on the Federated Indians of Graton Rancheria
Casino Project's DEIS about mitigation and enforcement of mitigation (From County of Sonoma and Sonoma County Water
Agency DRAFT Comments on the Federated Indians of Graton Rancheria Casino and Hotel Project DEIS", 9 of 10):
"The mitigation measures presented in the DEIS are not commitments and include no enforcement mechanisms.
The DEIS correctly notes that NEPA requires the inclusion of means to mitigate adverse environmental impacts, including limitations
on the size of the proposed project and its implementation. (40 CFR §§1502.14(f), 1502.16(h), 1508.20(b).) NEPA
further requires the inclusion of a monitoring and enforcement program to ensure that mitigation measures are implemented.
(40 CFR § 1506.2(c), NIGC NEPA Guidance Manual §§ 2.7.3.5, 2.7.4.7.)
"The DEIS lists mitigation measures that are "recommended" for the various alternatives.
The DEIS does not require that the project proponent actually implement any of the measures, and includes no monitoring or
enforcement program of any kind. The DEIS thus includes no commitment or guarantee that the project proponent would mitigate
adverse impacts at all, much less reduce them to less-than-significant levels.
"Absent an enforceable
commitment, the measures set forth in the DEIS
do not constitute actual mitigations, and do not support the document's
claims that impacts of the proposed project will be less than significant. The DEIS must be revised and recirculated
to require actual implementation of all proposed mitigation measures, particulate a monitoring program to verify compliance,
and identify enforcement steps that the NIGC would take to ensure compliance." (emphasis added)
For every single mitigation discussed in the Federated Indians of Graton Rancheria casino's DEIS, the
consultants should have considered: "What if the Tribe doesn’t…" What if the Tribe won’t…"
complete a mitigation? Putting aside the fact that the mitigations offered in the DEIS are for the most part, inadequate,
what recourse does an adjacent property owner, an affected resident, the City of Rohnert Park or Sonoma County have if the
Federated Indians of Graton Rancheria shall not or will not complete a mitigation?
There is only one way to get the Federated Indians of Graton Rancheria to do what they say they're going to do
if the land is taken into trust: they must give us an irrevocable waiver of sovereign immunity before a federal judge
on the matter of enforcing promised mitigations. If it does not, we have no guarantees whatsoever.
The County's MOU with the Federated Indians of Graton Rancheria's that sets forth terms for negotiating
mitigation provides for "binding arbitration", but that was naive on the part of the County. Unlike the Federated
Indians of Graton Rancheria's management contract with Station Casinos, the MOU did not require the Federated
Indians of Graton Rancheria to give an irrevocable waiver of sovereignty. What that means in practical terms is that if the Federated
Indians of Graton Rancheria decides not to engage in the arbitration, or they don't like what's been decided, or the
tribal council changes and decides not to even honor the MOU, there will be nothing we can do. That is the reality of "tribal
sovereignty".
Will the Federated Indians of Graton
Rancheria entirely waive its sovereign immunity and submit to the same level of accountability as any "John Doe"
Developer? Probably not, and failing to factor the fundamental "exempt" status of an Indian tribe into the DEIS
has been a sheer waste of everyone’s time. It makes even the proposed inadequate mitigations, much-trumpeted by the
Federated Indians of Graton Rancheria's leadership, completely meaningless.
