Case4:12-cv YGR Document30 Filed09/04/12 Page1 of 23

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1 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 Michael P. Scott, Esq. (SBN ) P.O. Box 0 Santa Rosa, CA 0-0 Tel: (0) - Michael_p_scott@yahoo.com CROWELL LAW OFFICES TRIBAL ADVOCACY GROUP Scott Crowell (pro hac vice) W. State Route A,Suite Sedona, AZ Tel: () 0- Fax: () - scottcrowell@hotmail.com Attorneys for Plaintiff Guidiville Band of Pomo Indians O'KEEFE & O'KEEFE LLP Garet D. O'Keefe (SBN ) Shona L. Armstrong (SBN ) Francisco Street Berkeley, CA 0 Tel.: (0) 0- Fax.: (0) 0- garet@okeefelaw.com Attorneys for Plaintiff Upstream Point Molate LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA THE GUIDIVILLE RANCHERIA OF CALIFORNIA, a federally recognized Indian tribe; and UPSTREAM POINT MOLATE LLC, a California Limited Liability Corporation, vs. Plaintiffs, THE UNITED STATES OF AMERICA; KEN SALAZAR, the Secretary of the Department of the Interior; LARRY ECHOHAWK, the Assistant Secretary - Indian Affairs; and THE CITY OF RICHMOND, a California Municipality, Defendants. Case No. CV - YGR JOINT CASE MANAGEMENT STATEMENT [LOCAL RULE -] AND RULE (f) REPORT Date: September, Time: :00 p.m. Place: Ronald V. Dellums Fed. Building 0 Clay Street, Oakland, CA -

2 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 THE CITY OF RICHMOND, a California Municipality, vs. Counterclaimant, UPSTREAM POINT MOLATE LLC, a California Limited Liability Corporation, Counterclaim Defendant CASE MANAGEMENT STATEMENT AND RULE (f) REPORT Pursuant to Local Rule - and Federal Rule of Civil Procedure (f), a meet and confer session was held on August,, between Michael Scott and Scott Wheat of Crowell Law Office, co-counsel for plaintiff The Guidiville Rancheria of California a/k/a the Guidiville Band of Pomo Indians of the Guidiville Rancheria ( Band or Tribe ), Garet O'Keefe of O'Keefe & O'Keefe LLP, counsel for plaintiff/cross-defendant Upstream Point Molate LLC ( Upstream ), Reuben S. Schifman of the United States Department of Justice, counsel for defendants United States of America, Ken Salazar and Larry Echo Hawk ( Federal Defendants ) and Christopher J. Carr of Morrison & Foerster, LLP, counsel for defendant/counterclaimant The City of Richmond ( City ). The parties, by and through their undersigned counsel, jointly submit this Joint Case Management Statement and Rule (f) Report in anticipation of the Case Management Conference pursuant to Fed. R. Civ. P. (b) and Civil L. R. -, scheduled for September,, at :00 p.m., at the United States District Court for the Northern District of California, Ronald V. Dellums Federal Building, Oakland, California.. JURISDICTION AND SERVICE The parties agree that plaintiff Tribe s claims challenging the Secretary s September,, denial are brought under U.S.C. and and that Plaintiffs allege their claims arise under the Constitution, federal common law, and federal statutes, including the Indian Gaming Regulatory Act, U.S.C. 0 et seq., among other statues establishing jurisdiction -

3 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 over the Tribe s claims. The Plaintiffs allege a waiver of sovereign immunity from the Administrative Procedure Act ( APA ). The City and Plaintiff agree that under U.S.C. (a), the court has supplemental jurisdiction over the Tribe s and Upstream s claims against the City and the City s counterclaim against Upstream, as those claims are related to the Tribe s claims against the Federal Defendants and form part of the same case or controversy.. FACTS Each party has summarized below the factual and legal contentions in its respective pleadings. The inclusion of these summaries in this should not be construed as an admission or adoption by any party of any factual or legal contention alleged by the other party. a. Plaintiffs Description of the Case The federal claims center on the Federal Defendants refusal to approve Guidiville Tribal gaming activities upon a -acre parcel of land in Richmond, California, known as Point Molate, under the Indian Gaming Regulatory Act. The pendant claims arise out of a directly related contractual arrangement between the City, the developer Upstream, and the Tribe concerning the ultimate transfer of legal title to Point Molate from the City of Richmond ( the Property ) to the United States in trust for the Tribe. In November 0, the City and Upstream entered into a Land Disposition Agreement ( LDA ), which expressly benefited the Tribe. Pursuant to the LDA, the City agreed, among other things, to sell and lease the Property to the Tribe through a pre-approved assignment of Upstream s rights, contingent, of course, on CEQA review and approval and other Closing conditions. One of the City s main commitments pursuant to the LDA was the City s agreement that it would urge the United States Department of the Interior ( DOI ) to approve the Tribe s request that the DOI take the Property in trust, in part for gaming purposes. The City also agreed to urge the State of California to negotiate and enter into a Compact with the Tribe to permit Class III gaming. -

4 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 On December, 0, the Tribe notified the Secretary of its intent to start the NEPA process associated with having the United States place Point Molate into trust, for the purposes of reestablishing a Tribal homeland and in part, for the purpose of gaming pursuant to the Restored Lands Exception, U.S.C. (b)()(b)(iii). The Tribe also began to execute a Services Agreement with the City requiring the Tribe to pay to the City $-$ million per year for a variety of services necessary to the construction and operation of the Project. The Tribe performed all the steps necessary to make the LDA possible. The Tribe also showed that the Property qualified to be taken into Trust. Upstream performed all of the obligations required of it under the LDA and related documents. Indeed, between 0 and, Upstream and the Tribe made payments of approximately $,000,000 to the City as a deposit against the purchase price to be paid to the City for the Property and expended approximately another $,000,000 in expenses related to the Project and Property, all of which benefitted the City Meanwhile, between March 0 and January 0, the Tribe attended several meetings with representatives of the DOI and the National Indian Gaming Commission regarding the Tribe s request for a restored lands determination. On October, 0, the DOI published a proposed rule in the Federal Register ( Fed. Reg. ) in order to explain how the Department interprets exemptions and exceptions, including the restored lands exception. On or about February, 0, at the request of the Government, the Tribe submitted its Supplement to the Land Determination Request to the Department of the Interior. On May, 0, the DOI published its final rule, codified at CFR Part ( 0 Regulations ). Sections. through. of the 0 Regulations impose restrictions on the restored lands exception, including that the applicant tribe demonstrate a historic, modern, and temporal connection to the land. CFR.. On or about September, 0, at the request of the Government, the Tribe submitted its Second Supplement to the Land Determination Request of the Department of the Interior to the DOI and to the NIGC. -

5 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 On December, 0, the DOI issued its determination that Guidiville is a restored tribe under the restored lands exception. Upon the Tribe s information and belief, the DOI prepared, and was prepared to release, a determination that Point Molate qualifies as the Tribe s restored lands and approving gaming activities thereon. George Skibine, then Acting Deputy Assistant Secretary, Policy and Economic Development, announced at a meeting of the Federal Bar Association that the DOI would be issuing a favorable determination for Point Molate. Instead, appointees of the new Administration advised the Tribe that the favorable determination was under review. On information and belief, Plaintiffs allege that local, state and federal officials exerted inappropriate political influence upon the DOI to reverse the favorable determination on grounds other than required by applicable law. For instance, while the City initially honored its obligation to support the Tribe s application, by late 0 the City abruptly changed course. The City s new Mayor and City Council actively and aggressively sought to undermine the Tribe s Application to place the Property in trust with the DOI. Plaintiffs allege that the City s efforts scuttled the LDA and unduly interfered in the LIT process and eliminated any possibility that the Tribe s application would be approved. On or about March,, the City Council certified the EIR for the Project. Then the City breached the LDA by passing a resolution, dated April,, in which the City Council unilaterally decided to discontinue consideration of the casino use at Point Molate and declared the Project not legally permitted in an act of bad faith designed to support the City s refusal to return to the Tribe and Upstream the $,000,000 in deposits or to reimburse them for the approximately additional $,000,000 spent in furtherance of the Project and betterment of the Property, including obtaining the ETCA transfer agreement discussed below. On September,, the Assistant Secretary Larry Echo Hawk issued a written determination concluding that Point Molate does not qualify as the Tribe s restored lands under U.S.C. (b)()(b)(iii) ( Indian Land Determination or ILD ). In its September, ILD, the DOI determined that the Tribe failed to establish a modern connection and a significant historical connection to Point Molate. The Federal Defendants maintain that the ILD renders Point Molate ineligible for gaming and have ignored the Tribe s additional requests -

6 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 for a federal determination that Point Molate qualifies for gaming under grounds independent from the restored lands exception. See U.S.C.. Defendants unlawful conduct has deprived the Tribe of its right to restore its land base and also caused plaintiffs to suffer approximately $0 million in actual damages, in addition to lost profits reasonably expected to be earned from the Project. Further, defendant City was unjustly enriched. For example, plaintiffs invested significant time and resources to bring about an Early Transfer Cooperation Agreement ( ETCA ) pursuant to which the Navy transferred the majority of the physically developable land at Point Molate to the City for $.00 along with placing $. million in escrow to be devoted to the environmental clean up of that land. In connection therewith, Upstream entered into a Remediation Agreement with the City pursuant to which Upstream developed clean up plans and managed and supervised the remediation work required by the ETCA without any compensation paid to date. Indeed, despite the City s breaches of the LDA, Upstream continues to this day to manage the remediation efforts to the City s benefit. In sum, even excluding the approximately $0 million plaintiffs paid to the City, the City has been unjustly enriched by at least $0 million considering the $. million provided by the Navy for clean-up, the value of Upstream s management services and the value of the land transferred to the City under the ETCA. b. The City s Description of the Case The City contends Plaintiffs have no legal or factual basis for bringing this lawsuit. The City disagrees with Plaintiffs characterization of the LDA (and the parties obligations thereunder) and the actions of the City. The City contends that the LDA did not commit either Upstream or the City to developing the Property as a casino and that Upstream s right to move forward with development of a casino plan was conditioned on the outcome of the CEQA process and on the City s ultimate approval. The City also asserts that the development of a casino at the Property was subject to various federal approvals and that the LDA contemplated that a casino use might not be approved. The Federal Defendants independently determined that, because the Tribe has neither a modern nor a historic connection to the Property, the Property -

7 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 could not be taken into trust by the United States for development as a tribal gaming facility. Regardless of the City s action, the City alleges no gaming development could take place at the Property without federal approval and, thus, any claim of breach or damages against the City has no merit. The City also contends that it negotiated with Upstream with respect to an alternative proposal for the Property and, thus, satisfied its obligations under the LDA. Furthermore, the Closing Date for the LDA (extended several times by mutual agreement of the City and Upstream), pursuant to the sixth amendment to the LDA, was April,, and because that date has passed, even the obligations that the City once owed to Upstream have been extinguished. As a result, the City alleges that there is simply no breach of the LDA nor any damages or causation, and neither Upstream nor the Tribe are entitled to any relief from the City. c. Federal Defendants Description of the Case In December 0, Plaintiff Guidiville requested to have approximately acres of land in Richmond, California taken into trust, in part, for the purpose of gaming. Section of the Indian Gaming Regulatory Act ( IGRA ) prohibits gaming on trust lands acquired after October,, unless various exceptions apply. See U.S.C.. One exception, the restored lands exception, provides that the IGRA s general prohibition on gaming does not apply when lands are taken into trust as part of... the restoration of lands for an Indian tribe that is restored to federal recognition. Id. (b)()(b)(iii). On May, 0, the Secretary published Interior s Final Rule interpreting Section of IGRA, U.S.C.. Gaming on Trust Lands Acquired After October,, Fed. Reg. (May, 0). The regulations implement Section of IGRA by articulating standards that the Department will follow in interpreting the various exceptions to IGRA s general prohibition on gaming on lands acquired after October,. Fed. Reg.. The provisions relevant to the restored lands exception, (b)()(b)(iii), are located at C.F.R..-. Section. provides that, with respect to Tribes like the Plaintiff Guidiville, which was restored by a court-approved settlement agreement entered into by the United States, a parcel qualifies as restored land if the tribe can establish three types of -

8 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 connections to the land: a modern connection, a historical connection, and a temporal connection. Following the issuance of these regulations, in September 0, Plaintiff Guidiville submitted its Second Supplement to the Land Determination Request of the Department of the Interior to the DOI and to the NIGC. Over the next several years, DOI worked in good faith with Plaintiff Guidiville in processing their request. At no time did DOI release a determination that Point Molate qualifies as the Tribe s restored lands. Neither George Skibine, nor any other DOI employee publically announced that DOI would be issuing such a determination. Rather, on September,, then Assistant Secretary Larry Echo Hawk issued a written determination concluding that Point Molate does not qualify as the Tribe s restored lands because Plaintiff Guidiville failed to meet the criteria established by the regulations, including the requirement that the Plaintiff demonstrate a modern connection and a significant historical connection to Pointe Molate. This decision was rational, and DOI has not acted unlawfully. The Secretary possesses broad authority to promulgate regulations, including regulations implementing the Secretary s duties under the IGRA. In particular, the Secretary possessed the authority to promulgate the regulations governing the implementation of the IGRA s prohibition on gaming on trust lands acquired after its passage, and the exceptions to that general prohibition. The challenged regulations reflect a reasonable interpretation of the IGRA s restored lands exception. Here, as the Administrative Record will show, Interior reasonably applied the plain language of these regulations and determined that Plaintiff could not meet the requirement of the restored lands exception because the Plaintiff had not show a modern connection or a significant historical connection to Pointe Molate. d. Factual Issues in Dispute At this stage of the litigation, Defendants challenge all of Plaintiffs material factual allegations, and Plaintiffs challenge all of Defendants material factual allegations. -

9 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0. LEGAL ISSUES a. Legal Issues in Dispute The principal legal issues in dispute include: () Whether the Federal Defendants violated the Administrative Procedure Act by acting arbitrarily, capriciously and contrary to law by: issuing a decision that is not supported by substantial evidence; failing to consider evidence; failing to accord evidence its proper weight, and; basing its decision on improper considerations beyond the scope of the 0 regulations, including inappropriate political influence by local, state and federal officials. () Whether the 0 Regulations unlawfully contradict the meaning of restored lands intended by Congress. See, e.g. Grand Traverse Band of Ottowa & Chippewa Indians v. Office of the United States Attorney, F. Supp. d (W.D. Mich. 0); City of Roseville v. Norton, F.d 0, 00- (D.C. Cir. 0); Oregon v. Norton, F. Supp. d 0, 0 (D. Ore. 0). () Whether the Federal Defendants erred by failing to employ the Indian law canons of construction when promulgating the 0 Regulations. See, e.g. Grand Traverse Band of Ottowa & Chippewa Indians v. Office of the United States Attorney, F.d 0, (th Cir. 0); City of Roseville v. Norton, F.d 0, 0 (D.C. Cir. 0); Oregon v. Norton, F. Supp. d 0, (D. Ore 0). () Whether the City breached its contractual obligations under the LDA. () Whether Plaintiffs have suffered any damages. () Whether the City is the cause of any damages allegedly suffered. () Whether the City breached the LDA by deciding to discontinue consideration of a casino use on the Property. () Whether the City fulfilled its obligations under section. of the LDA. () What is the closing date under the LDA. (0) Whether the City has any outstanding legal obligations under the LDA. -

10 Case:-cv-0-YGR Document0 Filed0/0/ Page0 of 0 () Whether any of the City s affirmative defenses bar Plaintiffs claims. b. Federal Defendants Statement of Legal Issues () Whether the 0 Regulations are a reasonable exercise of the Secretary s authority to promulgate regulations under IGRA, U.S.C., or whether they are arbitrary or capricious in substance, or manifestly contrary to the statute. Mayo Found. for Med. Educ. & Research v. United States, U.S., S. Ct. 0, () (citation omitted). See Redding Rancheria v. Salazar, - SC, WL (N.D. Cal. Feb., ) (upholding 0 Regulations as a reasonable exercise of the Secretary s authority under IGRA). () Whether, in determining that Plaintiff could not meet the requirement of the restored lands exception DOI acted reasonably and examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choices made. Providence Yakima Med. Ctr. v. Sebelius, F.d, 0 (th Cir. 0) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., U.S., ()). This list is preliminary and not inclusive. The Parties anticipate that more issues will be identified as the case progresses.. MOTIONS There are no motions pending at this time. However, the Tribe and the Federal Defendants expect to disagree on the scope of discovery allowed for the federal claims. Plaintiffs contend they are entitled to discovery, beyond the Administrative Record ( AR ), particularly discovery related to inappropriate political influence upon the Federal Defendants. The Federal Defendants position is that because Plaintiffs claim is brought under the Administrative Procedure Act ( APA ), the Court s review is limited to the AR and that any discovery on the APA claims is inappropriate. The Parties expect this disagreement to require resolution by the Court, following the service of the AR. The Tribe and Federal Defendants also expect the case (against the Federal Defendants) to be resolved on cross motions for summary - 0

11 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 judgment after production of the Administrative Record and completion of any permissible discovery on the federal claims. Defendant City anticipates filing a Motion for Judgment on the Pleadings on certain claims and counter-claims that can be determined as a matter of law early in the litigation. The City and Upstream also expect to file cross motions for summary judgment on the state law claims after the completion of discovery.. AMENDMENT OF PLEADINGS Plaintiffs anticipate one further amendment to the complaint prior to discovery to include additional claims against the Federal Defendants. The parties do not anticipate any further amendments. However, discovery is not completed, and parties, claims, or defenses may be added as necessary if normal case scheduling is not thereby delayed.. EVIDENCE PRESERVATION The parties represent that they have taken reasonable and necessary steps to preserve evidence relevant to the issues reasonably evident in this action. The Plaintiffs and City will meet and confer further regarding electronic discovery issues. If discovery is ordered against the Federal Defendants, they will also meet and confer with Plaintiffs on this topic. Federal Defendants are preserving records as per the regular course of business.. DISCLOSURES The Federal Defendants position is that the Federal Defendants do not have to provide initial disclosures under Fed. R. Civ. P. (a)()(b)(i) because this is an action under the APA and review will occur based on an Administrative Record. Moreover, it is the Federal Defendants position that Plaintiffs have not provided a basis for showing that they fall within the narrow exceptions to Administrative Record review. Plaintiffs assert that the Federal Defendants are required to provide initial disclosures regarding each individual that may have discoverable information relating to inappropriate political influence. The Tribe agrees to stipulate that the Federal Defendants shall be exempted from the initial disclosure requirement, but reserves the right to make discovery requests for information that would otherwise be provided under Fed. R. Civ. P. (a)()(b)(i). -

12 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 Plaintiffs Tribe and Upstream and defendant City have agreed to exchange initial disclosures pursuant to the requirements of Fed. R. Civ. P. on or before September,. To the extent there are any perceived deficiencies in the disclosures, the parties will meet and confer and, if an agreement cannot be reached, the parties will advise the Court of any need to compel further disclosures.. DISCOVERY- RULE (f) DISCOVERY PLAN No formal discovery has been completed to date. The parties agree that the discovery, if any, and case schedule should be linked to the timing of the Federal Defendant s production of the Administrative Record. The Federal Defendants are currently in the process of preparing the Administrative Record, and anticipate serving it by November,. a. Rule (f)()(a): (What changes should be made in the timing, form, or requirement for disclosures under Rule (a), including a statement as to when disclosures under subdivision (a)() were made or will be made?) As noted, the initial disclosures by Plaintiffs and the City will be made by September,. b. Rule (f)()(b): (The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues.). Plaintiff Tribe s Statement Concerning Discovery Upon the Federal Defendants: Regarding the federal claims, Plaintiff Tribe asserts discovery is needed outside of the AR regarding the exertion of inappropriate political influence upon the federal Defendants. Depending on the documents that are included in the AR, the Tribe may seek discovery against the Federal Defendants, including initial written discovery and depositions of the Federal Defendants and third party witnesses to elicit communications between the Federal Defendants and third parties that constitute attempts to exert inappropriate political influence. Plaintiffs reserve the right to assert additional bases for discovery on the federal claims once Plaintiffs have had the opportunity to review the AR. -

13 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0. Plaintiffs Statement Concerning Discovery Upon the City: Upstream intends to serve initial written discovery and conduct initial depositions of certain representatives of the defendants and third party witnesses to elicit the communications between the defendants and third parties concerning defendants respective actions that led to the demise of the Project and denial of the Tribe s Application. This initial round of discovery is intended to elicit evidence relevant to opposing the City s anticipated motions challenging Plaintiff s claims. This initial round of discovery will also assist the Plaintiffs in determining whether the Federal Defendants have included all of the City s communications with them into the AR (of course, the converse is also true). Plaintiffs intend to commence the initial discovery against the City prior to the Federal Defendants production of the AR. After the court rules on the City s anticipated motions, Upstream will engage in a second phase of discovery consisting of depositions of anticipated trial witnesses and further written discovery. Plaintiffs oppose defendant City s proposal to phase discovery as set forth below in subsection for several reasons. The resolution of the Federal Claims will not meaningfully streamline discovery or the issues as the City contends. First, as to the breach of contract claim, Plaintiffs allege the City breached the LDA by failing to support the Tribe s application and the Project and, in fact, actively lobbying against the Project during the final - years of the Parties efforts under the LDA. Given that the DOI initially drafted a favorable determination, plaintiffs expect the Tribe to prevail on the federal claims. Further, it has been years since the Tribe was restored to recognition in federal litigation and that it has been seeking to restore its reservation. Successful resolution of the federal claims, by settlement or summary judgment, may include land being taken into Trust for the Tribe at a location in the general area of Point Molate. Should that occur, the resolution of the federal claims would have no bearing whatsoever on the resolution of plaintiffs claims against the City. While many of the legal issues are intertwined, some will not be addressed by the resolution of the federal claims. In other words, the resolution of the federal claims is not likely to involve a ruling that limits plaintiffs breach of contract claim against the City. -

14 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 Second, even if the Tribe were not to prevail on the federal claims (arguendo), the issues against the City would not be meaningfully narrowed. Contrary to Defendants assertion, Plaintiffs breach of contract claim would not be moot. Rather, Plaintiffs still would be allowed to prosecute their breach of contract claim against the City to the extent it could be shown that the City s actions led, in whole or in part, to the Federal Defendants adverse determination. Further, Plaintiffs allege claims against the City for misrepresentation and unjust enrichment, among others, which even the City acknowledges would not be impacted in any way by resolution of the federal claims. These claims involve the same discovery. For example, Plaintiffs allege the City fraudulently induced Plaintiffs to enter into several amendments extending the LDA and to pay additional monies to the City as deposits and in furtherance of the Project at a time when the City had already begun its efforts to lobby against the Project. Plaintiffs damages on these claims, which also are in the tens of millions of dollars, have no connection to the outcome of the federal claims. Third, since Plaintiffs anticipate assertions of privilege by all Defendants, it is important that discovery commence forthwith as to all Defendants, so that Plaintiffs can uncover unprivileged communications between the City and others and the Federal Defendants. Finally, delaying discovery against the City will not streamline any of the issues, but would serve only to increase the risk that evidence may be lost due to the passage of time and would unnecessarily delay the resolution of this action which would be unfair to Plaintiffs given that the City is holding $,000,000 in deposits paid by Plaintiffs.. Federal Defendants Statement Regarding Compilation and Supplementation of the Administrative Record: Plaintiffs claims against Federal Defendants are brought pursuant to the APA, U.S.C. 0-0, and are therefore subject to review upon the administrative record and extra-record discovery is inappropriate. See Fla. Power & Light Co. v. Lorion, 0 U.S., - () (the general rule is that courts reviewing an agency decision are limited to the administrative record that the agency presents to the court); e.g., Havasupai Tribe v. Robertson, F.d, -

15 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 (th Cir. ) (affirming district court s limitation on the scope of its review to the administrative record and barring discovery). The Federal Defendants further assert that review of the claims against the Federal Defendants should only occur based on the Administrative Record because Plaintiffs have not shown they fall within any of the limited exceptions to the record review rule (especially as the record has not been served yet). See Southwest Center for Biological Diversity v. U.S. Forest Service, 00 F.d, 0 (th Cir. ) (Plaintiffs must make a strong showing of bad faith or improper behavior by the agency to justify extra-record review). Review is properly limited to the Administrative Record submitted by the agency unless Plaintiffs can make a showing that an exception applies. Havasupai Tribe v. Robertson, F.d, (th Cir. ). Therefore, neither supplementation of the record nor discovery is appropriate here and review should be limited to the Administrative Record. At the very least, any motions by Plaintiffs to supplement should be filed following service of the Administrative Record.. Defendant City s Statement: The City proposes phasing the federal and state claims in order to streamline the litigation and conserve the resources of the Court and the parties. Under the City s proposal, litigation of the federal claims would be adjudicated first, followed by any necessary discovery and motion practice for the state claims. This would entail a stay of not just discovery on the state claims, but of litigation of those claims, including motion practice the City anticipates to dismiss and/or narrow certain of Plaintiffs state claims. The City believes phasing the litigation would be beneficial because resolution of the federal claims would greatly narrow the issues remaining in the case. Despite the Complaint s setting forth eight causes of action against the City, this is a breach of contract case. Plaintiffs breach of contract cause of action boils down to two claims: () that the City breached the LDA, which breaches caused the Federal Defendants to deny the Tribe s application to take Pt. Molate -

16 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 into trust for gaming; and () that the City breached its duty under the LDA to negotiate in good faith with Upstream an alternative use for Pt. Molate. If the Court decides that the Federal Defendants decision was lawful, then the City could not have been a cause of Plaintiffs alleged damages from their inability to develop a casino resort at Pt. Molate (thus, resolving the first breach claim). This, in turn, would limit the potentially relevant timeframe for discovery by at least five years, as the only remaining breach claim would be the duty to negotiate in good faith. The City s duty to negotiate over an alternative use did not arise until April,, the day after the City Council voted to discontinue consideration of a casino use at Pt. Molate. As a result, the scope and timeframe of discovery would be tremendously narrowed, to the obvious benefit of the court and the parties, from resolution of the federal claims prior to litigation of the state claims. At a minimum, the City respectfully requests that the Court direct the parties to meet and confer to develop a targeted discovery plan that avoids unnecessary expenditure of the City s scarce resources on wide-ranging discovery. In particular, the City believes that discovery should not commence until the Parties have had an opportunity to review the administrative record. This would serve at least two purposes. First, it will enable the Plaintiffs to target their discovery in terms of subject matter and date. Second, it will provide numerous publicly available documents to Plaintiffs so that the City is not put in the position of producing such documents. c. Rule (f)()(c): (Any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.) Federal Defendants contend that discovery is inappropriate in this APA case. However in the event the Court orders discovery, Federal Defendants will comply with all Court orders and cooperate in good faith with Plaintiffs on the conduct of discovery. The Plaintiffs and City anticipate discovery in this case will involve extensive disclosure of electronically stored information. The Plaintiffs and City agree to meet and confer to address agreed upon search terms, format and production protocol, and other issues in the event they arise. -

17 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 d. Rule (f)()(d): (Any issues relating to claims of privilege or of protection as to trial preparation material, including - if the parties agree on a procedure to assert such claims after production - whether to ask the court to include their agreement in an order.) The parties anticipate discovery in this case will involve the assertion of various privileges. The parties agree to meet and confer on a protocol for the preparation of privilege logs and related issues. e. Rule (f)()(e): (What changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed.) Please see discussion under Subparagraph (b), above. f. Rule (f)()(f): (Any other orders that should be entered by the court under Rule (c) or under Rule (b) and (c).) The parties may file Rule (c) motions upon production of the AR, See Section, supra. Pursuant to Fed. R. Civ. P. (b), the parties request the Court enter a scheduling order consistent with the schedule proposed in Section, supra.. CLASS ACTIONS Not applicable. 0. RELATED CASES On August,, the City initiated a related action filed in the State Court of California, County of Contra Costa, entitled City of Richmond v. Upstream Point Molate LLC, bearing Contra Costa County Superior Court Case No. C -0 (the State Action ), wherein the City filed a complaint for Declaratory Relief that is essentially identical to the City s counterclaim filed herein. The State Action has been stayed pending resolution of this Action.. RELIEF a. Plaintiffs Statement: On its claims against the Federal Defendants, the Tribe seeks: an order setting aside the September, determination by the federal Defendants that the Point Molate lands cannot qualify for gaming; an order compelling the Assistant Secretary to issue a determination that Point Molate qualifies as the Tribe s Restored Lands under U.S.C. (b)()(b)(iii); an order setting aside CFR.-.; an order compelling the federal Defendants to issue a determination that Point Molate qualifies as the Tribe s restored lands under U.S.C. -

18 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 (b)()(b)(iii); and an order compelling the Secretary to approve the Final Environmental Impact Statement for the Point Molate Lands. On their claims against the City, plaintiffs Tribe and Upstream seek an award for actual, incidental and consequential damages (including deposits and other monies paid in furtherance of the Project of approximately $0,000,000 and reasonably anticipated lost profits over the first five years of the Project in excess of $0,000,000), and an award in excess of $0,000,000 for unjust enrichment, among related relief sought in the First Amended Complaint. b. Defendant s Statement: Federal Defendants seek a judgment in their favor and a determination that DOI acted reasonably and lawfully in promulgating the regulations interpreting the restored lands exception and in deciding that Plaintiff Guidiville could not meet the requirement of this exception because they could not demonstrate a modern connection or a significant historical connection to Pointe Molate. Defendant City seek a judgment that Plaintiffs take nothing by virtue of their Complaint and that judgment be entered in favor of the City on all grounds. The City further seeks a declaration under its counterclaim that it did not breach the LDA and that it owes no further obligations to plaintiffs.. SETTLEMENT AND ADR The parties agree that it is premature to consider ADR until after the federal Defendants produce the AR and possibly until after the Court rules on the City s anticipated motions challenging plaintiffs claims. Accordingly, the parties have not yet reached any agreements concerning ADR and thus have not filed the ADR certification documents and Stipulation to ADR Process. The parties are willing to participate in an Early Settlement Conference should the Court determine it is appropriate.. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES Defendant City objected to proceeding before a Magistrate Judge. Plaintiffs generally oppose proceeding before a Magistrate judge, with the exception of issues pertaining to discovery. -

19 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0. OTHER REFERENCES Not applicable.. NARROWING OF ISSUES It is premature for the parties to determine which material facts or legal issues in this case will be resolved by stipulation, if any.. EXPEDITED TRIAL PROCEDURE This case should proceed in the normal course.. SCHEDULING All parties agree the discovery and litigation schedule should be linked to the production of the AR. However, Plaintiffs and City disagree on when discovery should commence, with the City proposing that the Court phase the federal and state claims for the purposes of motion practice and discovery. The proposed litigation schedules are outlined below. a. Plaintiffs Proposal Designation of Experts: June, Discovery Cut-off Date: 0 days from production of the AR Discover Motion Cut-off Date (whether days from production of the AR discovery should be had on the federal claims): Motion Cutoff Date (in re cross-motions 0 days from production of the AR for summary judgment on the Tribe s Federal Claims): Motion Cutoff Date (other motions): 00 days from production of the AR Pre-Trial Conference: 0 days from production of the AR Trial: 0 days from production of the AR a. The City s Proposal Federal Claims: The City defers to the Federal Defendants proposed schedule below. -

20 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 State Claims: Discovery Commences: days after the Court s order on Federal Claims Designation of Experts: 0 days after the Court s order on Federal Claims Discovery Cut-off 0 days after the Court s order on Federal Claims Motion Cutoff Date (other motions): 0 days after the Court s order on Federal Claims Pre-Trial Conference: 0 days after the Court s order on Federal Claims Trial: 0 days after the Court s order on Federal Claims Federal Defendants Proposal: Federal Defendants propose the following schedule for resolution of the APA-based claims in this suit. Service of the Administrative Record ( AR ) Deadline for Motions for Supplementation of AR Plaintiffs Motion for Summary Judgment Defendants Response to the Plaintiffs Motion for Summary Judgment Plaintiffs Reply Defendants Reply November, 0 days from service of the AR Assuming no supplementation of the record, 0 days from service of AR 0 days from Plaintiffs Motion for Summary Judgment days from Defendants Response days from Plaintiffs Reply -

21 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0. TRIAL With regard to plaintiffs claims against the City and the City s counterclaim, plaintiffs have requested a jury trial. It is premature to estimate the length of trial as discovery is just commencing and also the scope of issues to be presented at trial could be affected by anticipated law and motion practice. The Parties anticipate that Plaintiffs claim against the United States may be decided based on summary judgment motions and trial is not appropriate.. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS The parties hereby acknowledge that no entity or person other than themselves is known to have either (i) a financial interest (of any kind) in the subject matter in controversy or in a party to the proceeding; or, (ii) any other kind of interest that could be substantially affected by the outcome of the proceeding. The parties hereby certify, by the signature of their attorneys of record below, that: Pursuant to Civil L.R. -, the undersigned certifies that as of this date, other than the named parties, there is no such interest to report." If the Court requires a separately filed Certification of Interested Entities or Persons, the parties will promptly file same.. OTHER MATTERS The parties are not presently aware of any other matters that may facilitate the just, speedy, and inexpensive disposition of this matter. Dated: September, MICHAEL P. SCOTT, ESQ. CROWELL LAW OFFICES TRIBAL ADVOCACY GROUP By: s: Michael P. Scott Michael P. Scott Attorneys for Plaintiff Guidiville Band of Pomo Indians -

22 Case:-cv-0-YGR Document0 Filed0/0/ Page of 0 Dated: September, Dated: September, Dated: September_, O KEEFE & O KEEFE LLP By: s: Garet D. O Keefe Garet D. O Keefe Attorneys for Plaintiff Upstream Point Molate LLC DEPARTMENT OF JUSTICE By: s: Reuben S. Schifman Reuben S. Schifman Attorneys for Defendants United States of America, Ken Salazar and Larry Echohawk MORRISON & FOERSTER LLP By: s: Christopher J. Carr Christopher J. Carr Attorneys for Defendant and Counterclaimant City of Richmond -

23 Case:-cv-0-YGR Document0 Filed0/0/ Page of CERTIFICATE OF SERVICE I hereby certify that on September,, the foregoing JOINT CASE MANAGEMENT STATEMENT AND RULE (f) REPORT was filed electronically, and served automatically upon opposing counsel by operation of the Court s electronic filing system. 0 s: Garet D. O Keefe Garet D. O Keefe (California Bar # ) -