Casino attempts to bypass NEPA process

City council seeks to ensure developers comply with state environmental process

By BRIAN COSNER, News Review Staff Writer

City officials are calling into question the vulnerability of community interests after developers of the proposed Indian gaming casino apparently circumvented its promise for environmental review by working out a backchannel deal with the outgoing federal administration.

The Ridgecrest City Council continued last month’s discussion on the progress of the Timbisha Shoshone Tribe casino development. During the discussion, City Attorney Keith Lemieux announced that developers had opted out of the National Environmental Policy Act review process — which was identified by city officials and community members alike as a critical measure of protection when the feasibility of the facility was vetted last year.

“We were surprised to learn for the first time that [the developer] worked out a deal with the federal government so that the property could be taken as trust land without going through the NEPA process,” said Lemieux.

This “caused some concern,” as it looked like the project was only required to fill out an environmental “checklist” rather than be subject to a more thorough compliance review.

“That raises a couple of concerns,” he added. “Are they dealing with us honestly and truthfully?”

Lemieux, after consulting with tribal expert and consultant to the city on this matter, Attorney Jack Duran, reported that this does not directly breach the Municipal Services Agreement between the tribe and the city. But there is language in the MSA that the city expects the development to undergo environmental review on good faith.

Additionally, he said that the tribe would eventually be required to undergo some sort of environmental review in the form of a Tribal Environmental Impact Report – which he says would be likely to adhere to the state’s more stringent California Environmental Quality Act. But when and how that process would be triggered remained unclear.

The tribe has not given any reason for why it pulled out of the process. But Lemieux said that developers will often wait until their projects exist in a more concrete form to undergo an environmental review to avoid the risk of paying for multiple reviews.

“We were under the impression that they would be going through NEPA,” said Councilmember Lindsay Stephens. “It would be in the best interest of the city to ask the governor’s office to encourage the tribe to go through CEQA.”

Originally, casino developer Nigel White explicitly stated that he was avoiding the CEQA process as it is more demanding than NEPA.

Stephens also questioned whether the city should maintain it’ position of support for the project, since the majority of the new council may no longer necessarily support the casino.

“We agreed in the MSA to send a letter of support or similar documents,” said Lemieux. “We, through the MSA, adopted a support position. We have not waived our rights obviously to negotitate hard going forward regarding this contract. And we have definitely not waived any right to insist on a full environmental review that’s to our satisfaction.”

“I do not want to be a hinderance, nor do I want to be a facilitator,” said Mayor Peggy Breeden of the development. “But I don’t want to say anything that makes us go back and question whether or not this is going to happen.”

Breeden, along with Mayor Pro Tem Mike Mower and former councilmember Lori Acton voted to approve the land sale to the tribe last year. Vice Mayor Eddie Thomas and former councilmember Jim Sanders opposed.

Councilmember Wallace Martin objected to the convoluted nature of the entire casino process. He likened it to the controversial 2010 Affordable Care Act – a federal statute that began as “eight to 10 agreeable points” before becoming “25 pages of smoke and mirrors that nobody on earth could understand.”

“It’s becoming the tried-and-true approach,” he said, “and this casino is exactly that. It will require some of the smartest minds in Las Vegas and a whole fleet of special tribal attorneys. They descend on on small towns and take advantage of them. Smoke, mirrors, attorneys, etc. – it is by design complicated.”

He said that the spirit of the agreement involved the NEPA process and that the developers were “trashing the only protection we have left in this process.”

“I don’t want anything less than a full-blown CEQA process.”

No members of council argued against the importance of requiring the environmental review process, and Lemieux reminded Martin that eventually the tribe would certainly have to undergo some sort of review to begin developing.

Members of the public unanimously requested the need to push for CEQA compliance, some requesting that the developers still adhere to the NEPA process as well.

Ultimately, Lemieux drafted a letter to the developer and tribe with language as follows:

“The city and the public expected that the tribe would follow the NEPA process. The city was surprised to learn that the NEPA process would not be followed for this project. The city seeks to ensure that a full environmental process is completed as a condition of approval that complies with the requirements of the California Environmental Quality Act.”

Because the tribe is already in talks with the governor’s office, council agreed that it was prudent to submit the letter as soon as possible and decided against a special meeting to go into any more detail regarding the letter.

“I’d like to avoid a special meeting, I think we all would,” said Lemieux. “You’re either sitting at the table or you’re on the menu. That’s why I want to get this letter out quickly.”

Council unanimously approved submitting the letter and also approved sending a letter to the Secretary of the Interior and the Bureau of Indian Affairs requesting that the development undergo a NEPA process as well.

Additional details will follow in the next edition of the News Review.

Story First Published: 2017-02-03