Special Meeting
10/29/24 06:00 PM
City Manager Department
Andy Espinoza Jr.
Contract
Doc ID: 5796
AGENDA ITEM
AGENDA MATTER:
APPROVAL OF THE RESTATED MUNICIPAL SERVICES AGREEMENT BETWEEN LOS COYOTES BAND OF CAHUILLA AND CUPEÑO INDIANS, AND THE CITY OF BARSTOW EXECUTIVE SUMMARY:
The agreement presented between the City of Barstow (the City) and the Los Coyotes Band of Cahuilla and Cupeño Indians (the Tribe) is intended to provide a funding mechanism for governmental services impacted by the future development of a proposed casino on three undeveloped parcels totaling 23.1 acres on Lenwood Road, south of Mercantile Way.
The Tribe has filed a fee-to-trust application and two-part determination pursuant to Section 5 of the Indian Reorganization Act, 25 U.S.C. § 5108, and Section 20(b)(1)(A) of the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2719(b)(1)(A), both of which also trigger full environmental review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq. This request will allow the Department of Interior to place into trust the 23.1 acres on Lenwood Road, south of Mercantile Way (Trust Lands). The Tribe is also asking the Secretary of the Interior to make a “two-part determination” under IGRA section 20(b)(1)(A), that the gaming development is in the best interest of the Tribe and is not detrimental to the community surrounding the Trust Lands.
The City has no role in the fee-to-trust determination other than consideration of this funding mechanism for tribal compensation of services.
Intergovernmental or municipal services agreements are commonly entered into between cities and tribal governments to address the funding of impacts of development on otherwise sovereign tribal land. The City and the Tribe previously entered into a Municipal Services Agreement (MSA), initially on October 10, 2004, which was amended on August 21, 2006 (First Amendment), and October 5, 2020 (Second Amendment). The agreement now presented as a Restated MSA addressing the funding of the same general scope of municipal services. As the Tribe is moving towards finalizing land acquisition, the Municipal Services Agreement is being updated to address the changes in federal law, and updating the terms of the agreement.
This Restated MSA is required due to changes in federal law which now prevents revenue-sharing and yet still requires that potential impacts to the local community be addressed. The BIA now requires that the funding method be more clearly spelled out rather than presented as a revenue sharing arrangement.
The Tribe will pay standard Development Impact Fees applicable to similar developments, and costs for City services such as police and fire occurring due to the characteristics of the proposed casino.
Special Meeting
10/29/24 06:00 PM
City Manager Department
Andy Espinoza Jr.
Contract
Doc ID: 5796
AGENDA ITEM
The Tribe will cover the costs of: construction of a fire station including land acquisition; purchasing and staffing two pieces of fire apparatus; and police personnel. The Tribe will also be required to fund a problem gambling program to address mental and behavioral health issues in the Barstow area associated with problem gambling.
The City has previously supported the Tribe's fee-to-trust application and agreed to provide cooperation with the Tribe on matters of public services and land use on the Tribe's Trust Lands pursuant to the Initial and the First and Second Amended MSA’s.
DISCUSSION:
The Los Coyotes Band of Cahuilla and Cupeño Indians is applying to the Bureau of Indian Affairs (BIA) for a the fee-to-trust application under Section 5 of the Indian Reorganization Act, 25 U.S.C. § 5108, Section 20(b)(1)(A) of the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2719(b)(1)(A), and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq. This request will allow the Department of Interior to place into trust the 23.1 acres on Lenwood Road, south of Mercantile Way (Trust Lands). The Tribe is also asking the Secretary of the Interior to make a “two-part determination” under IGRA section 20(b)(1)(A), that the gaming development is in the best interest of the Tribe and is not detrimental to the community surrounding the Trust Lands.
The Los Coyotes Band of Cahuilla and Cupeño Indians is a federally recognized tribe in San Diego County with a reservation in an isolated area of the county. The Tribe is an independent nation with the right to form its own government, establish membership, exclude persons from tribal lands, levy taxes within its borders, and establish its own law, including zoning laws, within its borders. Development opportunities for the Tribe on its reservation are limited due to geographic and topographic issues, including limited transportation to the reservation and its proximity adjacent to the Cleveland National Forest.
Congress created the Indian Reorganization Act of 1934 as a method under which land acquired by a tribe is placed into trust by the Secretary of the Interior to allow for tribal economic self-sufficiency. In 1988, Congress created the Indian Gaming Regulatory Act to allow for gaming on Indian lands under certain conditions.
To conduct gaming on land acquired after 1988, the BIA must make a determination that is commonly known as the “Two-Part Determination Process” to allow gaming on the site, more specifically, BIA must determine that the proposed gaming activity: 1) will be in the best interest of the Indian tribe and its members, and 2) will not be detrimental to the community surrounding the land. This provision of federal law does not provide approval of the Two-Step Process or the application by the local agency (i.e., the City), though it does require the evaluation by the BIA of whether local impacts have been addressed.
No aboriginal or historic tie to the land under consideration is required under a Two-Step Process determination. The focus on a Two-Step Process application is the evaluation by the BIA of whether a Special Meeting
10/29/24 06:00 PM
City Manager Department
Andy Espinoza Jr.
Contract
Doc ID: 5796
AGENDA ITEM
tribe that currently has reservation land would be benefited by acquiring additional land to be held in trust by the Department of the Interior for economic development, and whether such development would have a disparate impact on the community surrounding the land to be put into trust.
The City has no role in the fee-to-trust determination other than consideration of this funding mechanism for tribal compensation to mitigate anticipated impacts of the proposed casino project related to public safety and other impacts such as law enforcement, fire protection, development service improvements, and problem gambling programs.
The City has supported the Tribe’s application previously. The previously approved MSA and amendments thereto established a process for sharing of net revenue to be paid to the City, with no direct cost of city services identified. Under the new federal regulations however, revenue sharing is no longer allowed by BIA. The Restated MSA therefore has been revised to provide for funding methods for base line size and scope of services for police and fire personnel, materiel and facilities, with final determination of cost and scope to be determined upon final evaluation of the project. The Restated MSA also provides for an agreement that such funding obligations will be adjusted annually to address inflation and other cost adjustments.
As the lead agency for the Fee-to-Trust and Casino project, the BIA prepared a Final Environmental Impact Study (Final EIS) for the Fee-to-Trust and Casino project, which can be found at <https://barstoweis.com/documents/final_eis-teir/report.htm>(Final EIS). The Final EIS analyzed several project alternatives as required under NEPA, with the Preferred Alternative being “Alternative B-Barstow Reduced Casino-Hotel Complex” (Sec. Final EIS, section 2.2.2, p. 2-12). The original MSA, the amended MSA, and this Restated MSA use the Alternative B-Barstow Reduced Casino-Hotel Complex as the basis on which to identify required services and address the funding issues. The Tribe has confirmed that the project is based on the project scope of the Alternative B-Barstow Reduced CasinoHotel Complex. (See Att. 2, Letter from Heather Sibbison, dated October 24, 20204.) The Restated MSA clarifies baseline funding obligations based on such scope for the Alternative B-Barstow Reduced Casino-Hotel Complex, with an obligation to revisit annually the scope and costs.
The proposed project under Alternative B-Barstow Reduced Casino-Hotel Complex consists of a 164,400 square foot casino building, a 100 room hotel, 1,405 parking spaces, and associated entertainment, retail, and services facilities.
After consultation with the Police Department and Barstow Fire Protection District, funding method and amount was determined based on the staffing needs for the project for 17 police officers, a ladder truck, and a fire engine. The personnel needs to staff the two fire apparatus results in a need to hire 22 fire department personnel. (See Att. 4.) The current cost for the police services, fire services, including all vehicles, support, maintenance, overhead, administrative, and supplies shall be entirely funded by the Tribe through the terms of the Restated MSA. Such analysis is identified in Att. 3 and 4. The base line Special Meeting
10/29/24 06:00 PM
City Manager Department
Andy Espinoza Jr.
Contract
Doc ID: 5796
AGENDA ITEM
cost of police services under the Restated MSA is $3,084,535.58 annually. (See Att. 1, Ex. C, para. 6.) The start-up cost of fire services under the Restated MSA is $4,757,170.00 and $44,876,101 annually thereafter. (See Att. 1, Ex. C, para. 7.) All personnel costs are adjusted annually for inflation or changes in personnel MOU’s. The estimated cost for fire apparatus under the Restated MSA is $2,500,000 and $1,400,000 respectively for a ladder truck and fire engine. Payment for police services shall be invoiced monthly. Payment for fire services shall be paid annually at the beginning of the calendar year. Payment for fire apparatus shall be made within one year of land being placed into trust to allow for ordering and delivery of apparatus.
After the Trust Lands are formally placed into trust by the BIA, the Tribe will within 180 days make an offer of dedication of two acres of non-federal trust land to the City in order for the City to use for the construction of a new fire and police station, if determined by the City to be necessary at that time. Such configuration of the facility, location, and need for the facility shall be determined at that time by the City and approved under separate actions. The Restated MSA describes a minimum scope of such facility to cover the needs of equipment and personnel identified, should the City decide to proceed with a newly constructed fire station at that time. Though the estimated cost for the construction of a fire station/public safety building is presently unknown, the Tribe is responsible under the Restated MSA to fund such structure. The Restated MSA obligates the Tribe to provide as an initial payment of $7,000,000 within one year of Trust Lands being place into trust, for the initial construction costs (design and initial procurement process) of such facility, and provide final payment for construction once such sum ultimately determined. The obligation for funding and timing of payment for such facilities is addressed under the Restated MSA.
The Restated MSA also addresses the payment obligation by the Tribe for the other impacts identified in the Final EIS. The Tribe shall be solely responsible for such payments and shall pay the impact fees typically paid by developers of similar projects (i.e., developer impact fees). If the hotel structure is over 4- stories, the Tribe shall annually pay $233,000 for Fire Department high-rise training.
The Restated MSA contains a local hire provision, to provide hiring priority for qualified local residents after employment preference to tribal members.
The Tribe has elected to impose certain restrictions on its land through Tribal Resolutions. (See Att. 1, Ex. H- “Zoning Standards”, I - “Building Standards”, and J “Environmental Review Standards”.) The Tribe as a sovereign nation is not required to adhere to local zoning codes, state building codes, or the California Environmental Quality Act. These Tribal Resolutions are acts of the Tribe to voluntarily adopt certain standards. The Tribal Zoning Standards prohibit any person under the age of 21 from being present in any gaming area, prohibits nude entertainment or adult entertaining businesses, prohibits fueling stations on Trust Lands, and prohibits commercial cannabis activities, including the use of cannabis on trust lands. The Tribe has also determined it is in the interest of the Tribe to adopt the same building codes and standards that are applicable to the City of Barstow and the State of California, and that such standards applicable to the State of California as updated every three years by the state, shall also be applicable to the Trust Lands in the City. The Tribe has also adopted a resolution to apply a Special Meeting
10/29/24 06:00 PM
City Manager Department
Andy Espinoza Jr.
Contract
Doc ID: 5796
AGENDA ITEM
procedure for environmental review similar to the National Environmental Protection Act (NEPA) to apply on Trust Lands in the City.
Finally, the tribe will be funding of at least $93,000 per year for a Problem Gambling Program, and will hire a non-profit provider to create, administer and oversee a program to create short-form videos concerning educational videos about problem gambling; to create a program engaging youth from Barstow area schools (grades 7-12) concerning gambling and underage gambling issues; to provide access to behavior health providers and residents concerning problem gambling; advertising throughout the community concerning problem gambling; distribution of print materials concerning problem gambling; and outreach to target high-prevalence populations.
Based on the terms and funding obligations of the Restated MSA, the project will not be detrimental to the City and surrounding community.
ENVIRONMENTAL ANALYSIS:
Evaluation of the Casino Project was completed through the Bureau of Indian Affairs pursuant to the National Environmental Protection Act (NEPA). As a federal project NEPA is the appropriate level of environmental review. A copy of the Final EIS can be found at <https://barstoweis.com/documents/final_eis-teir/report.htm> The Restated MSA is not a project under CEQA pursuant to section 15378(b) of the CEQA Guidelines.
The California Court of Appeal has held that no environmental review is required under CEQA for an agreement between a city and a tribe for the provision of municipal services. (Parchester Village Neighborhood Council v. City of Richmond (2010) 182 Cal.App.4th 305.) As tribal land is not subject to CEQA, the Tribe has adopted a resolution addressing environmental review for all future projects on Tribal Land held in trust in the City. (See Att. 1, Ex. J “Environmental Review Standards”.)
Any future tribal development within the City off-Trust Land would be subject to review under CEQA.
FISCAL IMPACT:
None. Impacts to the City are addressed through the MSA. All costs and funding obligations are annually adjusted.
RECOMMENDED ACTION:
Special Meeting
10/29/24 06:00 PM
City Manager Department
Andy Espinoza Jr.
Contract
Doc ID: 5796
AGENDA ITEM
Approve the attached Resolution
1. Finding the approval of the Restated Municipal Services Agreement between the Los Coyotes Band of Cahuilla and Cupeño Indians and the City of Barstow exempt from the California Environmental Quality Act pursuant to section 15378(b) of the CEQA Guidelines; and
2. Approving the Restated Municipal Services Agreement between the Los Coyotes Band of Cahuilla and Cupeño Indians and the City of Barstow.
Attachments:
1. Resolution Approving the Restated Municipal Services Agreement between the Los Coyotes Band of Cahuilla and Cupeño Indians and the City of Barstow; and Finding Such Action is Exempt from the California Environmental Quality Act Pursuant to Section 15378(b) of the CEQA Guidelines
2. Letter from Heather Sibbison on behalf of Los Coyotes Tribe, dated October 24, 20204.
3. Police Department Cost Analysis
4. Fire Protection District Cost Analysis