COPY C ourt o f A ppeal - Third D istrict

FILEDIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

PICAYUNE RANCHERIA OF CHUKCHANSI INDIANS,

Plaintiff and Appellant,

v.

EDMUND G. BROWN, JR., as Governor, etc., et al.,

Defendants and Respondents,

NP FRESNO LAND ACQUISITIONS, LLC

Real Party in Interest and Respondent.

Feb 21, 2014

Deena C. Fawcett, Clerk/Administrator By: TVoss, Deputy Clerk

Case No. C074506

Sacramento County Superior Court, Case No. 34-2012-80001326 Michael P. Kenny, Judge

RESPONDENT DEPARTMENT OF FISH AND W ILDLIFE’S OPPOSITION BRIEF

K a m a l a D. H a rr is Attorney General of California R a n d y L. B a r r o w Supervising Deputy Attorney General

D e b o r a h L. B a rn es Deputy Attorney General State Bar No. 124142

13001 Street, Suite 125 P.O. B o x 944255 Sacramento, CA 94244-2550 Telephone: (916)322-9294 Fax: (916)327-2319 E-mail: Deborah.Bames@doj.ca.gov

Attorneys for Defendant and Respondent Department o f Fish & Wildlife

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

C ase PICA YUNE RANCHERIA OF Court of Appeal No.: C074506Name: CHUKCHANSI INDIANS, v. EDMUND G.

BROWN, JR., as Governor, etc., etai.

CERTIFICATE OF INTERESTED PARTIES OR ENTITIES OR PERSONS(Cal. Rules of Court, Rule 8.208)

(Check One) INITIAL CERTIFICATE jjT j SUPPLEMENTAL CERTIFICATE

Please check the applicable box:

There are no interested entities or persons to list in this Certificate per California Rules of Court, rule 8.208(d).

Interested entities or persons are listed below:

Full Nam e of Interested Entity or Party Party Non-Party Nature of InterestCheck One (Explain)

The undersigned certifies that the above listed persons or entities (corporations, partnerships, firms or any other association, but not including government entities or their agencies), have either (i) an ownership interest of 10 percent or more In the party if an entity; or (ii) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Attorney Submitting FormDEBORAH L. BARNES Deputy Attorney General S tate Bar No. 124142 1300 I Street, Suite 125 P.O. Box 944255 Sacram ento, CA 94244-2550 Telephone: (916)322-9294 Fax^(916) 327-2319 E-n/ail: Deborah.Bamgs@ doj.ca.gov

Party RepresentedAttorneys for Defendant and Respondent Department of Fish & Wildlife

iJuttornev mitting Form) (Date) * »

SA2013310047 31906842.doc

TABLE OF CONTENTS

Page

Introduction..........................................................i............................................ 1Relevant Background....................... 3

A. Alleged facts................................................................... 3B. Procedural background.................................................. 4C. The Trial Court’s order...................................................5

Standard of Review.......................................................................................... 6

Argument............................................................................... 7I. The Trial Court properly sustained the Governor’s

demurrer without leave to amend..............................................7II. Appellant failed to state a cause of action against

CDFW as any potential cause of action is not ripe for judicial review................................................................... 7

A. There is no pending incidental take permitapplication ........ 8

B. There is no pending streambed alterationagreement application.................................................... 9

III. Appellant's request for injunctive relief against CDFWwas properly denied, as there is no CEQA violation and Appellant cannot allege any facts supporting a hypothetical CEQA violation................ 10

Conclusion.;..................................................................................................... 12

TABLE OF AUTHORITIES

Page

Cases

Blank v. Kirwan(1985) 39 Cal.3d 311...............................................................................6

Bozung v. Local Agency Formation Commission o f Ventura County (1975) 13 Cal.3d 263.................. ;...................................................10, 11

Environmental Council o f Sacramento v. City o f Sacramento(2006) 142 Cal.App.4th 1018............ 8, 9,10

Environmental Protection Information Center v. California Department o f Forestry(2008) 44 Cal.4th 459............... 9

Heninger v. Board o f Supervisors(1986) 186 Cal.App.3d 601................ 11, 12

Maral v. City o f Live Oak(2013) 221 Cal.App.4th 975............................ 6

Stonehouse Homes v. City o f Sierra Madre(2008) 167Xal.App.4th 531...................................................................8

Sunset Sky Ranch Pilots Association v. County o f Sacramento(2009) 47 CaUth 902..................... 5

Unruh v. Intuit Inc.(2002) 121 Cal.App.4th 574................................................................... 6

Statutes

25 United States Code § 2719........ 4

42 United States Code § 4321 et seq............................................................3

California Code o f Regulations, title 14, § 24579................................. 5, 6

Code of Civil Procedure, § 430.30, subd. (a).............................................. 6

TABLE OF AUTHORITIES (continued)

Page

Fish and Game Code§ 3 7 .............................................. ,........................................................... 1§ 1600 et seq.............................................................................................9§ 1602.......................................................................................................9§ 1602, subd. (a).......... 9§ 1602 subd. (a)(1)........................ 9§2080 .................................;.....................................................................8§2081 8§ 12000, subd. (a)...................................................................... ;............8§ 12012 .................................................................................................................... 8

iii

INTRODUCTION

The Picayune Rancheria of Chukchansi Indians (Appellant)

challenges the decision of Sacramento Superior Court Judge Michael P.

Kenny (Trial Court) sustaining the demurrer of all Appellees including the

California Department of Fish and Wildlife (CDFW).1 Appellant alleges

the Governor of California violated the California Environmental Quality

Act (CEQA), when he concurred with the United States Department o f the

Interior Secretary’s decision that land in Madera County (Madera Site)

would be transferred to the United States in trust for gaming development,

without engaging in environmental review pursuant to CEQA.2 (JA at p.

000843 .)3

Appellant claims the Trial Court erred by failing to enjoin CDFW and

other state and local agencies from “providing the additional permits and

licenses necessary to make the casino/hotel complex operational.. ” (AOB

at p. 5.)4 Regarding the Governor, Appellant reiterates arguments that

failed in the Trial Court including: the Governor’s concurrence is a

“project” as defined by CEQA thus requiring environmental review; the

Governor acting in his official capacity is a “public agency” under CEQA

and the Governor’s concurrence is an “approval” pursuant to CEQA.

(AOB at pp. 15-28; 29-32; 33-35.)

1 As of January 1, 2013, the California Department of Fish and Game was renamed and is now known as the California Department of Fish and Wildlife. (Fish & G. Code, § 37; Assem. Bill No. 2402 (2011-2012 Reg. Sess.), § 5.)

\

2 The land in question is located near Madera, California. (JA at p. 000843.)

3 The Joint Appendix shall be referred to as “JA.”

4 The Appellant’s opening brief shall be referred to as “AOB.”

1

CDFW and the other Appellees are finally mentioned in the last

section of the Appellant’s opening brief. In claiming this action is ripe for

judicial review, Appellant asserts that injunctive relief would prevent

CDFW from “taking any subsequent actions necessary to further

development of the North Fork casino resort.” (AOB at p. 39.) Appellant

claims that CEQA requires that a challenge be brought in response to the

first CEQA violation whether or not the subsequent project approvals have

occurred. (AOB at p. 43.) The Appellant reasons that since the Governor

has violated CEQA, all other Appellees should be enjoined to prevent

future CEQA violations.

The Trial Court properly rejected these and other arguments. First the

Trial Court found that the Governor’s concurrence is not a “project” as

defined by CEQA as the decision to permit the casino is a federal, not a

state action. (JA at pp. 000847-000849.) Second, the Governor’s

concurrence is not an “approval:” (JA at p. 000849.) Third, the Governor

is not a public agency as defined by CEQA. (JA at pp. 000849-000852.)

Regarding CDFW, the Trial Court properly found that the claims

against CDFW and the other public entities are “entirely dependent” on the

claims asserted against the Governor. (JA at p. 000852.) Since the

Appellant failed to state any viable cause of action against the Governor, it

did not state any cause of action against CDFW or the other Appellees. (JA

at p. 000853.)

Additionally, Appellant alleged no facts that CDFW undertook any

action approving a project under CEQA. (JA at p. 000853.) The Trial

Court acknowledged that the only allegations against CDFW were

speculative and therefore not ripe for adjudication. {Id.)

Finally, the Trial Court found that the Appellant did not carry its

burden by establishing that it could amend the complaint. The Appellant

could not and did not demonstrate how it could allege additional or more

2

detailed facts. Therefore Appellant was unable to cure the defects in its

complaint and the demurrers were sustained without leave to amend. (JA at

pp. 000853-000854.)

As discussed below, Appellant has not provided any authority that

supports overturning the Trial Court’s decision. This Court should sustain

not only the Governor’s demurrer without leave to amend, but CDFW’s as

well.

RELEVANT BACKGROUND

A. Alleged Facts

Appellant alleges that the North Fork Tribe seeks to develop a

casino/hotel on 305 acres of “off-reservation” land in Madera County,

California. (JA at p. 000067,1(18.) In March of 2005, the North Fork Tribe

submitted a request to the United States Department of the Interior to

acquire the privately owned Madera Site. (JA at p. 000069, <J 27.) As

required, the Department of the Interior commenced and completed an

Environmental Impact Statement (EIS) pursuant to the National

Environmental Policy Act.5 (JA at p. 000070, 29.) The EIS opined that,

depending on the nature of any casino/hotel project, there could be

environmental impacts. Appellant further alleges that the EIS concluded

that such a project could have “a number o f potentially significant

environmental impacts,” including impacts to wildlife. {Ibid.) CDFW

submitted comments during the EIS process regarding potential impacts on

“special status biological resources” and the potential of increased water

pollution from storm runoff. (JA at p. 000072, 33.) The First Amended

Petition makes no other allegations against CDFW.

5 42 United States Code section 4321 et seq.

3

In September of 2011, the Assistant Secretary for Indian Affairs,

Larry Echo Hawk, informed Governor Brown that he had made a favorable

determination that gaming would be in the best interest of the tribe and

would not be detrimental to the surrounding community. (JA at p. 000073,

H 35.) Appellant further alleges that Governor Brown officially approved

the siting and development of the casino and that the Madera Site “should

no longer be. subject to the laws of California and applicable state and local

authorities and that it instead should be placed in trust for the North Fork

Tribe.” The Governor issued a concurrence with the Assistant Secretary for

Indian Affairs on August 30, 2012, pursuant to the Indian Gaming

Regulatory Act.6 (JA at p. 000069, H 37.)

B. Procedural Background

Appellant filed the First Amended Petition for Writ of Mandate and

Complaint for Injunctive Relief on December 21 ,2012.7 (JA at pp.

000063-000102.) In January of 2013, Appellees California Department of

Transportation, City of Madera and the County of Madera demurred to the

current action. (JA at pp. 000122-000125; 000134-135; and 000141-

000144.) Pursuant to stipulation, in March of 2013, the Governor, CDFW

and real party in interest, NP Fresno Land Acquisitions, LLC, demurred as

well. (JA at pp. 000157-000170; 000187-000190; 000240-000245; and,

000336-000339.) A hearing was held on April 26, 2013. (JA atp .

000835.) Sacramento Superior Court Judge Michael P. Kenny issued a

ruling sustaining all demurrers without leave to amend, which became final,

and the notice of entry of order was filed on June 13,2013. (JA atp .

6 25 United States Code section 2719.

7 Appellant filed their first Petition on November 30,2012. (JAat pp. 000001-000038.) However the operative petition is the First Amended Petition referenced above.

4

000831.) The notice of appeal was timely filed on August 5, 2013 (JA at p.

000901.)

C. The Trial Court’s Order

In sustaining all demurrers, the Trial Court made several key rulings.

As to the Governor, the Trial Court held that the concurrence is not a

project as defined by CEQA as it did not involve the “issuance o f a ‘lease,

permit, license, certificate, or other entitlement o f use by one or more

public agencies.’”8 (JA at p. 000779.) Further, even if the concurrence

could be defined as a lease, it would not be for the use of a public agency,

as federal agencies are not “public agencies” as defined by CEQA. (JA at

p. 000779, citing Gentry v. City o f Murrieta (1995) 36 Cal.App.4th 1359,

1389; Cal. Code Regs., tit. 14, § 24579.)

Further, the concurrence did not constitute an approval as the decision

to take the Madera Site into trust is a federal not a state decision. (JA at pp.

000778-000779.) Finally, the Governor is not subject to CEQA as he is not

a public agency. (JA at p. 000779.) CEQA defines public agencies as any

“state agency, board, or commission, any county, city and county, city

regional agency, public district, redevelopment agency, or other political

subdivision.” (JA at p. 000780, citing Pub. Resources Code, § 21063.) The

Trial Court noted that the office of the Governor is not included in this

definition and the Appellant was unable to provide any authority to the

contrary.

As to the remaining parties, the Trial Court noted that the claims

against these parties - including CDFW - are dependent on the validity of

the claims asserted against the Governor. As the Appellant did not assert

8 The Trial Court also found that the concurrence did not meet the . other criteria by which projects are defined by CEQA. (JA at p. 000777, citing Pub. Resources Code, § 210655; Sunset Sky Ranch Pilots Association v. County o f Sacramento (2009) 47 Cal.4th 902, 907.)

5

any valid claims against the Governor, there are no valid claims against the

remaining parties. (JA at pp. 000782-000783.)

Finally, the Trial Court stated that the Appellant did not and could not

make any factual allegations that the remaining respondents had taken any

action to approve a project under CEQA. (JA at p. 000783.) Appellant had

merely speculated as to what actions the respondents may take at some

unknown time in the future. Therefore any claims against the respondents

are not ripe. (Id.) After failing to make a showing that the complaint could

be amended to cure these defects, all demurrers were sustained without

leave to amend. (JA at p. 000783-000784.)

STANDARD OF REVIEW

The Code of Civil Procedure provides that a demurrer may be made

when the objection to the complaint appears on its face or on any matter

where the court is required to or may take judicial notice. (Code Civ. Proc.,

§ 430.30, subd. (a).) A demurrer tests whether the facts in a complaint are

legally sufficient. (Unruh v. Intuit Inc. (2002) 121 Cal.App.4th 574, 578.)

On appeal from a dismissal o f a case after a demurrer has been

sustained, the standard of review is well established: “[W]e review the

order de novo, exercising our independent judgment about whether the

complaint states a cause of action as a matter o f law. [Citations].” (Moral

v. City o f Live Oak (2013) 221 Cal.App.4th 975,980.) In making this

determination, the court gives the complaint a reasonable interpretation, and

treats the demurrer as admitting all material facts as properly pleaded.

(.Blankv. Kirwan (1985) 39 Cal.3d 311, 318.) However, the appellate court

does not assume the truth of any contentions, deductions or conclusions of

fact or law. (Moral v. City o f Live Oak, supra, 221 Cal.App.4th at p. 980.)

6

ARGUMENT

I. T h e T r ia l C o u r t P r o p e r l y Su s t a in e d t h e G o v e r n o r ’s D e m u r r e r W it h o u t L e a v e t o A m e n d .

As stated above, the Trial Court properly found that the Governor’s

concurrence is not a project, nor is the concurrence an approval as defined

by CEQA. Further the Governor is not a “public agency” as defined by

CEQA.

In the interest o f brevity, CDFW joins in the Governor’s opposition

brief filed with this Court. However, CDFW notes that Appellant has

offered no additional facts or legal authority that supports overturning the

Trial Court’s ruling.

n. A p p e l l a n t F a i l e d t o S t a t e a C a u s e o f A c t i o n A g a i n s t CDFW a s A n y P o t e n t i a l C a u s e o f A c t i o n is n o t R ip e f o r J u d i c i a l R e v ie w .

The Trial Court succinctly stated:

Additionally, the petition and complaint contains no factual allegations that would establish that these respondents themselves have taken any action to approve a project under CEQA. At most, the petition and complaint alleges that the remaining respondents may intend to take some action in the future that would be subject to CEQA, such as providing connecting transportation or other infrastructure to the casino/resort.. .Any claims by petitioner based on these

. anticipated future are not yet ripe, as the petition and complaint does not allege that any such action has occurred yet.

JAatp. 000783.

In its opening brief, Appellant offers nothing suggesting that its

allegations against CDFW and the other respondents are ripe for judicial

review. Appellant has failed to make the most basic prima facie case

against CDFW.

In order for a case to be ripe for judicial review, the alleged

controversy must be ripe. “A controversy is ‘ripe’ when it has reached, but

not passed, the point that the facts have sufficiently congealed to permit an

intelligent and useful decision to be made.” (Stonehouse Homes v. City o f

Sierra Madre (2008) 167 Cal.App.4th 531, 540, citations omitted.) This

requirement prevents courts from making advisory opinions. (Ibid.)

Here there are no facts rendering the current matter ripe for judicial

review. Since there is no project, there is no lead agency for CDFW to

coordinate with for CEQA review. CEQA does not require CDFW to

“force” a public agency to conduct CEQA review. Additionally, Appellant

has not alleged any facts demonstrating that there are any pending permit

applications for CDFW to approve or disapprove.

In its opening brief Appellant claims that an injunction would “enjoin .

all further state and local approval actions o f the Department o f Fish and

Wildlife...” (AOB at p. 39, italics in original.) While the Appellant does

not mention specific permits in its opening brief, the most likely permits

Appellant may have in mind include an Incidental Take Permit or ITP and a

Streambed Alteration Agreement or SAA.

A. There is No Pending Incidental Take Permit Application.

The California Endangered Species act provides that no person or

entity shall “[t]ake, possess, purchase, or sel l . . . any species or threatened

species.. . ” (Fish & G. Code, § 2080.) Both criminal and civil penalties

can apply if section 2080 is violated. (See e.g. Fish & G. Code, §§ 12000,

subd. (a) and 12012.) However, i f a person or entity obtains an ITP,

CDFW can authorize acts that would otherwise be prohibited. (Fish & G.

Code, § 2081.) Generally an ITP acts as a type of insurance against

criminal and civil liability for violations of Fish and Game Code section

2080. Once a person or entity applies for an ITP, CDFW begins CEQA

review for that application. (Environmental Council o f Sacramento v. City

o f Sacramento (2006) 142 Cal.App.4th 1018, 1034.)

8

However, there is nothing that authorizes CDFW to require a project

proponent to obtain an ITP. The failure to obtain an ITP in and of itself

does not violate the law. It is the taking o f a protected species that is the

violation. Until or unless there is a pending ITP application, there is no

requirement for CDFW to engage in CEQA review. (Environmental

Council o f Sacramento v. City o f Sacramento, supra, 142 Cal.App.4th at p.

1034 [CEQA review is not required when there is no pending application

for an incidental take permit].)

B. There is No Pending Streambed Alteration Agreement Application.

Similarly, unless an SAA notice or application is pending CEQA

review is not required. Fish and Game Code section 1600 et seq. provides

that a person or entity may not, “[substantially divert or obstruct the

natural flow of, or substantially change or use any material from the

channel, or bank, or any river, stream or lake, . . (Fish and G. Code, §

1602, subd. (a).) If a SAA is required then CDFW must comply with

CEQA. (Environmental Protection Information Center v. California

Department o f Forestry (2008) 44 Cal.4th 459, 521.) If a person engages in

an activity that triggers application of Fish and Game Code section 1602

and files notice, CDFW must comply with CEQA.9

To insist that CDFW be enjoined from exercising its authority on the

basis of permits that have not yet or may never be applied for, relating to a

project that is not yet in existence demonstrates Appellant’s

misunderstanding of the law. The law does not require CDFW to

hypothesize an endless number of scenarios. As the court stated in

Environmental Council o f Sacramento v. City o f Sacramento, “We

9 Fish and Game Code section 1602 subdivision (a)(1) requires notification to CDFW if any of the activities delineated in section 1602 subdivision (a) are contemplated.

9

conclude that CESA, like CEQA, does not require wasteful speculation on

potential projects yet to be conceived and described.” (Environmental

Council o f Sacramento v. City o f Sacramento, supra, 142 Cal.App.4th at p.

1034.) Therefore Appellant’s claims against CDFW are not ripe.

I I I . A p p e l l a n t ’s R e q u e s t f o r In ju n c t iv e R e l ie f A g a in s t C D F W W a s P r o p e r l y D e n ie d , as T h e r e is N o C E Q A V io l a t io n a n d A p p e l l a n t C a n n o t A l l e g e A n y F a c t s Su p p o r t in g a H y p o t h e t ic a l C E Q A V io l a t io n .

In the last two pages of its opening brief, Appellant repeats its earlier

argument that CDFW should be enjoined from issuing any permits

concerning the Madera Site. (AOB at p. 42-43.) Here Appellant argues

that this is the proper time to bring a CEQA action as to CDFW, since

CEQA review should occur at the earliest possible stage. (AOB at p. 42.)

Relying on Bozung v. Local Agency Formation Commission o f

Ventura County, which holds that that projects requiring multiple

approvals are subject to the CEQA process as early in the planning process

as possible, Appellees assert that because the Governor did not apply

CEQA to the concurrence, CDFW should be enjoined from issuing any

permits. (AOB at p. 42-43; Bozung v. Local Agency Formation

Commission o f Ventura County (1975) 13 Cal.3d 263.) Appellant’s '

reliance on Bozung is misplaced.

In Bozung,, the California Supreme Court held that environmental

review pursuant to CEQA must occur when a Local Agency Formation

Commission or LAFCO approves a city’s annexation of property intended

for future development. (Bozung v. Local Agency Formation Commission

o f Ventura County, supra, 13 Cal.3d at pp. 267,280.) Unlike the case at

bar, the Bozung Court found that the annexation was a project, and LAFCO

was the approver. (Id. at pp. 278-279.) Additionally, just because there

would be additional CEQA review did not excuse LAFCO from the CEQA

process, as it is important to engage in environmental review at the earliest

10

possible time. (Id. at p. 282.) CDFW has no quarrels with these concepts,

but they are not applicable to the case at bar.

As stated above and by the other Appellees, as well as the Trial Court,

the Governor’s concurrence does not equate to a project as defined by

CEQA. Nor does the concurrence equate to an approval, nor is the

Governor a public agency as defined by CEQA. Therefore CEQA does not

apply to the case at bar. The Bozung factors are not present here, and

CDFW should not be enjoined.

Appellant also relies on Heninger v. Board o f Supervisors for the

proposition that CDFW should be enjoined even though it has not

committed any CEQA violations — but because it might. (AOB at pp. 39,

43; Heninger v. Board o f Supervisors (1986) 186 Cal.App.3d 601, 604-

605.) As with Bozung, Appellant’s reliance on Heninger is misplaced.

In Heninger, Santa Clara County passed an ordinance allowing its

health officers to issue permits for private disposal systems. In doing so the

County prepared a negative declaration pursuant to CEQA. (Heninger v.

Board o f Supervisors, supra, 186 Cal.App.3d at pp. 603-604.) As a

predicate matter, the court found that the passage of the ordinance was in

and of itself, a project. The trial court also found that the County should

have prepared an EIR and voided the ordinance, granted injunctive relief

and prohibited the County’s health officers from issuing the permits until

the County complied with CEQA. The appellate court affirmed. (Id. at pp.

603-603.)

Unlike the challenged ordinance in Heninger, there is no project here.

Further, CDFW has not received any permit applications. Therefore,

CDFW’s CEQA obligations have not yet been triggered. As such,

Heninger is inapposite to the case as bar. An injunction against CDFW at

this time would only be warranted and procedurally correct if, as in

Heninger, the Governor’s non-compliance with CEQA excused CDFW

11

from compliance with CEQA and allowed it to issue permits without the

required CEQA review.

In Heninger, the County’s failure to comply with CEQA warranted

an injunction against county employees because they were part of the same

agency and had no legal obligation, distinct from that of the County itself,

to comply with CEQA. Here, CDFW is a separate legal entity from the

Governor, and regardless of whether the Governor has a CEQA obligation,

CDFW has its own independent obligation to comply with CEQA.

However, CDFW’s obligation to comply with CEQA exists only if it is

triggered, i.e. by a permit application. Appellant has provided nothing to

either the Trial Court or this Court to demonstrate that CDFW’s CEQA

obligation has been triggered. As such, Appellant’s request for injunctive

relief against CDFW was properly denied by the Trial Court and should be

denied by this Court as well.

C O N C L U S IO N

Appellant has provided nothing to this Court which supports

overturning the Trial Court’s ruling. As to CDFW, any claims are not ripe

for judicial review. Therefore CDFW respectfully requests that the Trial

Court’s ruling sustaining all demurrers without leave to amend be upheld.

12

Dated: February 20, 2014 Respectfully submitted,

SA20I331004731906842.doc

K a m a l a D. Harrjs Attorney General of California Ra n d y L. B a r r o w Supervising Deputy Attorney General

>e b o r a h l . Ba r n e s Deputy Attorney General Attorneys fo r Defendant and Respondent Department o f Fish & Wildlife

i

13

CERTIFICATE OF COMPLIANCE

I certify that the attached RESPONDENT DEPARTMENT OF FISH

AND WILDLIFE9 S OPPOSITION BRIEF uses a 13 point Times New

Roman font and contains 4,027 words.

Dated: February 21, 2014 Ka m a l a D. H a r r is

Attorney General of California

De b o r a h L. B a r n e s D eputy A ttorney G enDeputy Attorney GeneralAttorneys for Defendant and RespondentDepartment o f Fish & Wildlife

DECLARATION OF SERVICE

Case Name: Picayune Rancheria et al., v. Edmund G. Brown, Jr., et al.

Case No.: C074506

I declare:

I am employed in the Office of the Attorney General, which is. the office of a member of the California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is 13001 Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550.

On February 21,2014,1 served the attached RESPONDENT DEPARTMENT OF FISH AND W ILDLIFE’S OPPOSITION BRIEFby placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Sacramento, California, addressed as follows:

Hon. Michael P. Kenny Sacramento County Superior Court 720 Ninth Street, Dept. 31 Sacramento, CA 95814

1 copy

Carlyle W. Hall Jr.Andrew OelzAkin Gump Strauss Hauer St Feld 2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3012

Attorney for Petitioners and Plaintiff Picayune Rancheria o f LLP Chukchansi Indians

Timothy Muscat Deputy Attorney General Office of Attorney General 1300 I Street, 15th Floor Sacramento, CA 95814

Attorney for Respondent and Defendant Edmund G. Brown Jr.

Brandon S. Walker Elizabeth R. Pollock Legal Division 1120 N Street, MS 57 P.O. Box 1438 Sacramento, CA 95812-1438

Attorneys for Respondent and Defendant California Department o f Transportation

Madera County Counsel Douglas W. Nelson Robert D. Gabriele 200 West Fourth Street Madera, CA 93637

Attorneys for Respondent and Defendant County o f Madera

Madera City Attorney J. Brent Richardson 205 West Fourth Street Madera, CA 93637

Attorneys fo r Respondent and Defendant City o f Madera

NP Fresno Land Acquisitions LLC Andrew B. Sabey Cox, Castle & Nicholson LLP 555 California Street, 10th Floor San Francisco, CA 94104-1513

Attorneys for Real Party in Interest NP Fresno Land Acquisitions LLC

By Electronic Submission (pursuant to California Rules of Court, Rule 2 .212)

Supreme Court of California 350 McAllister Street San Francisco, CA 94102

I declare under penalty of peijury under the laws of the State of California the foregoing is true and correct and that this declaration was executed onFebruary 21,2014, at Sacramento, California.

Linda Thorpe Declarant Signature