Local officials say sovereign status limits their leverage in bargaining with tribe

JEREMY HAY
THE PRESS DEMOCRAT

County officials hold most of the cards when negotiating conditions for new developments. But they now have a weak hand in confronting a project they roundly oppose, the Federated Indians of Graton Rancheria's plan to open a casino outside Rohnert Park.

It would be one of the county's largest-ever developments, yet it is is planned for land the federal government deems sovereign Indian territory -- free of zoning and other local regulations, and property and most sales taxes.

One of the few things in local officials' favor is the fact that they will be at the bargaining table at all.

"The county usually has in negotiations some sort of leverage. In this case, the leverage is, the tribe has agreed to negotiate with us," said Supervisor David Rabbit, whose 2nd District includes the Wilfred Avenue casino site just south of Home Depot.

The high-stakes discussions would follow the expected U.S. Department of the Interior approval of a state-tribal agreement allowing the Federated Indians of Graton Rancheria to start the project. The department has until July 6 to make a decision or the agreement takes effect.

The county-tribe talks will set the terms for how much money the county is to get over the next 20 years from the Graton Rancheria to address a range of local impacts. Other measures, such as design and well-monitoring programs, also may be on the table.

County administrators and lawyers will handle the negotiations, joined by an attorney they have hired for the job, Guy Miller, of the Seattle-based Perkins Coie law firm.

A hearing is set for 6 p.m. Tuesday at the Board of Supervisors' chambers for the public to speak about concerns they want the county to focus on in the talks.

The tribe's Oakland-based attorney, John Maier, and its chairman, Greg Sarris, a Sonoma State University English professor, declined to comment.

Supervisors say areas to be addressed include:

Environmental concerns such as the strain on groundwater supplies and an estimated 14,724 total vehicle trips a day.

The casino's impact on police and fire services.

Social concerns such as gambling addiction and the cost to the county of providing services to people whose health and/or finances and families may suffer as a result.

"It is very much the goal of the board to offset all of those impacts . . . and make sure they are being fully mitigated," said Supervisor Shirlee Zane, whose 3rd District borders the casino site's east side.

They also want to get as many concessions as possible.

"We are going to try and capture as much as we can, obviously working constructively with the tribe," said Supervisor Efren Carrillo, whose 5th District also abuts the site.

Estimating impacts

But negotiators face the problem that some of the impacts, especially in the case of groundwater supplies and the social service system, can only be estimated.

"There is really no guarantee that the amount will be sufficient to address all of these impacts," Carrillo said. "The challenge will be to really quantify, because no one can predict what can really occur."

To account for that, Zane said, she would like the option to revisit some mitigation measures when more data is available.

"I'm hoping (the tribe) will allow for some flexibility there," she said.

But the imbalance between ability and desire was evident in remarks Rabbitt made last week at a meeting with constituents fearful of the impact from a 534,000-square-foot casino resort on private wells.

The tribe plans to rely on two wells of its own and wouldn't be connected to the county water agency's water delivery system or to the regional sewer treatment plant.

"The whole thing is we have very little leverage," Rabbitt told the group.

A few minutes later, he said: "We're going to make darn well sure every impact is mitigated and funded and paid for so we're not out of pocket."

The talks are to occur because of a deal the county and tribe reached in 2004 to negotiate those financial terms. If they cannot agree, the deal says, they must go to arbitration -- in which case the tribe has agreed to waive sovereignty and accept the decision of a neutral third party.

Officials call that a key factor that will allow them to push firmly for what they consider fair.

"We are in a unique position to go to arbitration if in fact we don't reach a conclusion," Zane said.

Limited bargaining power

But at the same time, county officials acknowledge they have far less bargaining power than they would like. "That's the best we've got, and it's not very good," Rabbitt said at his Rohnert Park meeting.

At the same meeting, County Counsel Bruce Goldstein, in a comment that highlighted the county's continuing frustration at its relative lack of power, said: "I wish litigation was a strongly viable alternative, but tribes as sovereign governments and the federal government are very hard to sue."

The 2004 deal came just four years after California voters OK'd the right of tribes to open Nevada-style gambling casinos on Indian land and at a time when the relationships between local governments and sovereign tribes were still being worked out.

The agreement was slammed by casino critics because it effectively ended official efforts to block the casino, which had included resolutions opposing it and challenges to the environmental reports about the project.

Supervisors said they had no option but to reach an accord because ultimately they would not be able to stop the project and getting something was better than nothing.

The deal puts the county today in a position it did not enjoy, for example, in its earlier attempts to negotiate with the Dry Creek Rancheria Band of Pomo Indians over the impacts of its River Rock Casino near Geyserville.

"I think there's a pathway for a reasonable government-to-government relationship on a not exactly equal, but a more balanced playing field," said former County Counsel Steven Woodside, who shepherded the 2004 agreement.

Woodside described those negotiations as "sometimes battles and sometimes simply sitting down and negotiating." And they offer a window into how the tribe might approach the upcoming talks when, as before, it will be represented by Maier and Sarris.

'A strong team'

"I can never tell for sure who's really calling the shots, but I would say this: Both of them are strong and knowledgeable," Woodside said. "They've got a strong team."

Of Maier, Woodside said: "He's not one of these hired guns out there who basically take pretty strident positions. He's very knowledgeable, very firm, and he really approached this with a long view."

The tribal leadership includes a former banker, a school administrator and a high-tech manager, and Woodside said they are attuned to factors that make for good government relations.

"They dealt with other government entities . . . and they understand the benefit of having a good relationship going forward," Woodside said.

"With the state of the law, and the way things were moving in those years, the tribe didn't have to do what it did," Woodside said. "But it chose to do so, in part because it wanted to develop a long-term relationship with county government."

Goldstein noted that the agreement now under review at the Department of the Interior outlines a formula under which the tribe already is committed to making annual payments of millions of dollars to the county for a variety of casinos impacts.

Negotiating for significant additional payments, he suggested, may be a tougher task this time around.

"My anticipation," he said, "is that the tribe's feeling will be that they gave at the office."

You can reach Staff Writer Jeremy Hay at 521-5212 or jeremy.hay@pressdemocrat.com.

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