COUNTY OF AMADOR v. CITY OF PLYMOUTH

Filed 4/17/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

----

APPEAL from a judgment of the Superior Court of Amador County, Glenn A. Ritchey, Jr., Judge. (Retired Judge of the Stanislaus Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Holland & Knight, Paul C. Workman, Zehava Zevit and Amanda J. Monchamp for Intervener and Appellant.

John F. Hahn, County Counsel, Martha Jeanne Shaver, Assistant County Counsel, and Gregory Gillott, Deputy County Counsel; Nielsen, Merksamer, Parrinello, Mueller & Naylor and James R. Parrinello for Plaintiffs and Respondents County of Amador and Amador County Board of Supervisors.

McDonough Holland & Allen, Stacey N. Sheston and Kara K. Ueda for Plaintiffs and Respondents No Casino in Plymouth, Jon Colburn, and Dueward W. Cranford II.

This is an appeal from a judgment granting a peremptory writ of mandate invalidating a Municipal Services Agreement (MSA) between the Ione Band of Miwok Indians (the Tribe) and the City of Plymouth (the City) on the ground the City entered the agreement without complying with the California Environmental Quality Act (CEQA). (Pub. Resources Code, 21000 et seq.)^[1]

The City is a small town located in the County of Amador (the County). The Tribe states it is a federally recognized Indian tribe. It has options to purchase 228 acres of land located in or adjacent to the City and has applied to the United States Secretary of the Interior (the Secretary) to take the land in trust for use by the Tribe. The Tribe intends to build a 120,000 square foot world-class Gaming Facility (Gaming Development) on the land, comprised of a hotel, restaurants, and night clubs or bars. The casino building is to be located within the city limits and, if constructed, will be the third casino approved for operation within the County.

The city council voted to support the application of the Tribe to place the lands in trust, conditioned upon the adoption of the MSA, and sent a letter of support to the Secretary. The letter is incorporated in the MSA and is the sole consideration for the Tribes agreement. The MSA is an enforceable agreement under which the City supports the trust application of the Tribe in return for millions of dollars to comprehensively mitigate the impacts of the casino development and to compensate the City for municipal services and other public services [it would] provide[] on the Trust Lands . . . .

The MSA unconditionally obligates the City to vacate a portion of a city road to provide access to the casino hotel and to remodel the existing fire station. It conditionally obligates the City to construct connections to the casinos sewer and water systems and to increase their capacities to meet the needs of the Gaming Development.

The County and individual parties^[2]obtained a writ of mandate that ordered the City to set aside the resolution approving the MSA and enjoined its implementation as a project subject to CEQA. The City filed a timely appeal of the judgment. When the City abandoned its appeal, presumably because the city council members who supported the MSA were recalled, the Tribe intervened and filed a notice of appeal. The Tribe is the only appellant.

The Tribe argues that the MSA is not a project subject to CEQA because the City lacks authority to approve the Tribes Gaming Development, because the Tribe could develop the municipal services without the City, and because the MSA does not constitute an approval by the City of its provision of municipal services or vacation of the City road. We disagree.

The Tribe has miscast the project as the acquisition of the trust lands and the Gaming Development. Although neither the taking of lands in trust nor the Gaming Development require the formal approval of the City,^[3]the Citys construction of public works and the vacation of a City road to the casino hotel do require its approval. It is these activities that constitute a project within the scope of CEQA, and the MSA that constitutes an approval of the project. (Cal. Code Regs., tit. 14, 15352, subd. (a); hereafter Guidelines.)

The purpose of CEQA is to require a public entity to consider the environmental consequences of a project before it is approved. The City cannot evade this responsibility by a contract that commits the City to a course of action that would involve the very activities that require an environmental analysis before their approval. The City project includes public works and a road transfer and other activities that are subject to CEQA because they may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.

Section 21168.9 provides that if any decision of a public agency has been made without compliance with [CEQA], the court shall enter an order . . . [] . . . [that the] decision be voided by the public agency. Accordingly, the decision of the City to enter into the MSA without complying with CEQA is void. For this reason the MSA and its support of the trust application of the Tribe is invalid.

We will affirm the judgment granting the writ of mandate and enjoining the implementation of the MSA.

FACTUAL AND PROCEDURAL BACKGROUND

The City is a small town located in the County.^[4] The Tribe is the Ione Band of Miwok Indians. It claims historical occupation of Amador County, including the City and surrounding lands, and that it is a federally recognized Indian tribe. The Tribe has options to purchase 228 acres of land inside or adjacent to the City, and has applied to the Secretary to convert the land when acquired to trust status for the Tribe.

The Secretary is authorized to acquire lands in trust for the purpose of providing land for Indians. (25 U.S.C. 465.) Title to lands so acquired is taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and is exempt from State and local taxation. (Ibid.)

The Tribe intends to develop the Gaming Development on the trust lands, consisting of a casino, hotel, restaurants, coffee shops, snack bars, night clubs or bars, and any other related uses. The authorization for gaming requires a compact between the Tribe and the State and a ratification of the compact by the Legislature. (25 U.S.C. 2710, subd. (d)(1).)^[5] Preliminary plans show a casino complex containing 120,000 square feet of building space, 65,000 square feet of which is devoted to the casino. The Tribe proposes to place the casino within the City limits. The other two casinos in the County are within 20 miles of the City.

Over substantial objection from the County and the residents of and around the City, the city council adopted a resolution approving the MSA and agreeing to support the Tribes request to have the Secretary take [the optioned lands] into trust for the benefit of the Tribe and the development of the Project on the Trust Lands. The City then sent a letter of support of the Tribes trust application to the Secretary.^[6] The council members voting for the resolution were subsequently not re-elected by the voters of the City.

The MSA expresses the Tribes intent to acquire land in trust and to develop on it a world-class Gaming Facility, hotel and other businesses. It recognizes the development will have both direct and indirect impacts on the City, including increased need for infrastructure, services, and criminal justice, as well as the removal of the trust land in the City from its tax rolls. To pay for these and other costs the Tribe agreed to pay the City $5.85 million in one time fees and costs for the construction of infrastructure and over $3 million in annual subventions for maintenance and other purposes.

The City agreed to an enforceable MSA to comprehensively mitigate all impacts of the [trust] acquisition by taking several steps, including, but not limited to: (a) providing economic incentives to enhance City programs and services; (b) mitigating any environmental impacts of its planned use of the Trust Lands that are identified in the EIS [environmental impact statement] to be conducted pursuant to NEPA [the National Environmental Protection Act]; [and] (c) compensating the City for municipal services and other public services to be provided on the Trust Lands, as provided by this MSA . . . . (Italics added.)

In return, the City agreed to support the Tribes request to the Secretary to approve a trust of the land for the benefit of the Tribe and the development of the land for a gaming facility. The only environmental review recognized by the MSA is a federal environmental review of the Gaming Development.

The MSA specifies several actions to be taken before the optioned lands are taken in trust. The Tribe agreed not to transfer title to the land to the United States until the Department of the Interior has concluded any required environmental reviews of the Project under NEPA.^[7] The City agreed that it would commence and diligently pursue proceedings in order that the City shall vacate its rights to that portion of the loop road to the hotel that will be included in the Trust Lands simultaneously with the time the land is taken into trust. The City further must commit to provide municipal water and sewer collection services to the Gaming Development prior to the optioned lands being taken in trust by the Secretary.

The Tribe agreed to pay quarterly amounts to the City to perform services related to the Gaming Development including an assessment of public infrastructure and needs analysis . . . review and analysis of requested municipal services to be provided to the Project . . . and other professional services as reasonably deemed necessary by the City to evaluate, process and support the Project. The Tribe also agreed to contribute $100,000 toward completion of the Citys Long Term Wastewater Management Plan and the engineering work then in progress.

The Tribe agreed to pay for the increased law enforcement services required by the Gaming Development, including the costs of enforcement of state criminal laws on trust lands as authorized by Public Law 280. (Pub.L.No. 83-280 (Aug. 15, 1953) 67 Stat. 588.) To provide for fire protection and emergency services required by the Gaming Development, the Tribe agreed to pay the City $770,000 to remodel the existing fire station, quarterly payments for personnel to staff the fire station 24 hours a day, and annual payments for equipment, maintenance and apparatus. The station is to be fully operational on or before the date the Gaming Development is open to the public.

The City agreed to provide to the Trust Lands the water and sewer collection services to the extent that the City provides or has committed to provide municipal water and sewer collection to these lands prior to the lands being taken into trust by the Secretary. The MSA provides that the City is obligated to provide water and sewer services when the Tribe provides specified connection fees. The connection fees become due only if the City is willing and able to provide the municipal water and sewer disposal service sufficient to meet the needs of the Project . . . .^[8]

The parties agreed that the Tribe shall provide for its own water and sewer collection system to the Gaming Development except to the extent the City provides or has committed to provide water and sewer collection service prior to the lands being taken in trust. The Tribe agreed to payment of connection fees of $1.675 million for sewage hookup and $3 million for a water connection, conditioned on whether the City is willing and able to provide the municipal water and sewage disposal service sufficient to meet the needs of the [Gaming Development] . . . . However, the City also agreed it would not unreasonably withhold the approvals required to implement the sewage disposal and water supply provisions. In addition the Tribe agreed to pay annual sums of $500,000 each for the operation and maintenance of the sewer collection and the municipal water system.

Lastly, the City agreed to commence and diligently pursue proceedings to vacate its rights to a portion of the loop road that would provide access to the proposed hotel. The Tribe asserted the right to change ingress and egress to the trust lands in accordance with applicable law.

The County petitioned the trial court for a writ of mandate to set aside the MSA on the ground the City failed to conduct an analysis and review of the MSA pursuant to CEQA before its approval. Plaintiffs No Casino in Plymouth, Jon Colburn, and Dueward Cranford II, filed a separate petition for writ of mandate and complaint for injunctive and declaratory relief, which also alleged the City was required to comply with CEQA before adopting the MSA. The actions were consolidated.

The court issued a judgment that ordered the City to set aside its resolution approving the MSA and that enjoined its implementation. The City filed a timely appeal of the judgment. When the City abandoned its appeal the Tribe intervened and filed a notice of appeal.^[9] The Tribe is the only appellant.

DISCUSSION

I

The Project is the Subject of the MSA

And Not the Gaming Development

The Tribe contends the MSA is not a project subject to CEQA because it is not a necessary step in the approval of Gaming Development. It claims the Citys approval is not required for either the placing of the subject lands in trust or the development of the Gaming Development and that it will go forward regardless of the MSA.

The County claims the MSA constitutes the approval of a project because it obligates the City to send a letter of support for the Tribes fee-to-trust application to the Secretary, obligates the City to reconstruct its fire station; obligates the City to extend its sewer and water services, and obligates the City to vacate portions of a City road. We agree with the County.

CEQA is a comprehensive scheme designed to provide long-term protection to the environment. (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.) The foremost principle under CEQA is that the Legislature intended the act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390.)

In furtherance of these goals, the term [p]roject is given a broad interpretation in order to maximize protection of the environment (McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1143) and the agency [must] determine whether a project may have a significant environmental impact, and thus whether an EIR [environmental impact report] is required before it approves that project. (Laurel Heights Improvement Assn., supra, 47 Cal.3d at p. 394; see also Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 84.)

As relevant here, a project is [a]n activity directly undertaken by a[] public agency[] [] . . . which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. (Pub. Resources Code, 21065, subd. (a).)^[10] The guidelines specify that a project refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies but does not include each separate governmental approval. (Guidelines, 15378, subd. (c).) The CEQA Guidelines include within the term project, public works construction and related activities, clearing or grading of land [and] improvements to existing public structures . . . . (Guidelines, 15378, subd. (a)(1).)^[11] The activities which the City agreed to undertake in the MSA include these kinds of activities.

The Tribe has miscast the project as the Gaming Development. Although neither the taking of the subject lands in trust nor the Gaming Development require the formal approval of the City, the City has agreed to improvements to existing public structures and other public works and to transfer an access road to the casino hotel subject only to conditions set forth in the MSA. The public works and road vacation constitute a project subject to CEQA and the MSA constitutes the approval or contingent approval of the project. That the Tribe could itself provide the municipal services required by the Gaming Development is irrelevant so long as the MSA is in effect.

Lastly, the portion of the City loop road that provides access to the casino hotel is not within the land to be purchased by the Tribe and would not be within any trust placed on land unless the City acted to vacate it. Accordingly, the Citys approval is required for its inclusion within the trust lands and the Tribe could not accomplish this on its own.

The cases upon which the Tribe relies to show that the MSA is not a project are not analogous. They concern the lack of a causal relationship between the actions taken by a municipal entity and a project subject to CEQA that is not to be constructed by the entity.

In Simi Valley Recreation & Park Dist. v. Local Agency Formation Commission of Ventura County (1975) 51 Cal.App.3d 648 (Simi Valley) the court concluded the detachment of property from a recreation and park district was not a project, in part because the detachment was not necessary to the carrying out of some private project involving a physical change in the environment. (Id. at p. 664, italics omitted.) The court emphasized that development of the property in the detached area was not dependent on the detachment. (Id. at p. 665.) The detachment did not alone constitute a physical change in the environment subject to CEQA.

In Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464 (Kaufman & Broad) the court held that the formation of a community facilities district (CFD) was not a project because there was no causal link between the formation of the CFD and the subject of the alleged environmental impact, the construction of new schools. (Id. at p. 474.) The court stated that the formation of the CFD would not create a need for new schools, and the construction of new schools was not entirely dependent upon the formation of the CFD. (Id. at p. 474.) The court concluded the only foreseeable impact from the formation of the CFD was that the school district would have funds available when it decided to acquire sites and construct new schools. (Id. at p. 474.)

This case differs from both Simi Valley and Kaufman & Broad because in neither of those cases was there a municipal project associated with the municipal action being taken. In Simi Valley, the detachment of the land from a recreation and park district would not make any change in the uses to which the land might be put. (51 Cal.App.3d at p. 666.) In Kaufman & Broad, the formation of a CFD, in no way commit[ted] [the school district] to any particular course of action . . . . (9 Cal.App.4th at p. 471.)

Here, by contrast, there are distinct off-reservation actions that the MSA contemplates will be taken by the City that require the Citys approval and which alone could produce a physical change in the environment subject to CEQA.

It is true that the execution of an intergovernmental agreement between a tribe and a county or city government negotiated pursuant to the express authority of, or as expressly referenced in, an amended tribal-state gaming compact is not subject to CEQA. (Gov. Code, 12012.40, subd. (b)(1)(B); see also 12012.40, subd. (b)(1)(D).)

However, the MSA is not within these provisions because it has not been authorized or referenced in a compact and because no compact has been executed with the State. Until the lands are taken into trust no compact can be negotiated with the Governor on behalf of the State.^[12] (25 U.S.C. 2719, subd. (b)(1).) Because the MSA is not the product of a compact, it is not subject to an exception to CEQA.

The acquiring of trust lands for the Tribe is preliminary to the development of the casino project. The casino project is a class III gaming facility that must be operated in conformance with a compact between the Tribe and the State of California. (25 U.S.C. 2710, subd. (d)(1)(C).) With two exceptions (Gov. Code, 12012.30 and 12012.35),^[13]all of the compacts ratified by the Legislature provide either: (1) that the execution of or on-reservation impacts of compliance with the terms of a compact do not constitute a project (Gov. Code, 12012.25, subd. (g)); (2) that the execution of or compliance with the terms of the compact do not constitute a project (Gov. Code, 12012.5, subd. (f)); or (3) that nothing in the compact, except the on-reservation impacts of compliance with the compact, shall exempt a city from the requirements of CEQA.^[14] (Gov. Code, 12012.40, subd. (b)(2), 12012.45, subd. (b)(2).)

No compact has as yet been negotiated between the State and the Tribe and for that reason the Legislature has not considered the extent to which the impacts of any casino project that might be the subject of a compact are exempt from CEQA. However, based upon the compacts that have been enacted with the state, the off-reservation impacts of a casino project would be subject to CEQA. That would certainly include, as here, any impacts that require the approval of the City.

It is also true that a project does not include, [t]he creation of government funding mechanisms or other government fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment.^[15] (Guidelines, 15378, subd. (b)(4).) However, the MSA does involve a commitment to a specific project, to wit, the provision of certain municipal services and the vacation of a City road.

II

The MSA Constitutes Approval by the City

of its Provision of Municipal Services

To determine whether CEQA applies to a proposed governmental action, the threshold inquiry is whether the agency is contemplating an approval of an action, policy, undertaking, or private application for entitlement. (Remy et al., Guide to the California Environmental Quality Act (11th ed. 2007) p. 69.)

The approval of a project is the decision by the agency committing it to a definite course of action with regard to a project to be carried out by a person or entity.^[16] (Guidelines, 15352, subd. (a).) The purpose of CEQA is to require the public agency [to] explain the reasons for its actions to afford the public and other agencies a meaningful opportunity to participate in the environmental review process, and to hold it accountable for its actions. (City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1426.) Although CEQA does not guarantee that governmental decisions will favor the environment, it promotes informed decision-making. (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 944.) If any decision of a public agency has been made without compliance with [CEQA], the court shall enter an order . . . [] . . . [that the] decision be voided by the public agency. ( 21168.9.)

The Tribe argues that the MSA does not constitute the approval of a project because it (a) does not commit the City to provide law enforcement services, (b) does not commit the City to provide fire or emergency services, (c) does not obligate the City to provide water and sewer services, (d) does not commit the City to provide waste disposal and (e) does not commit the City to do anything other than initiate a proceeding to vacate its rights in the loop road.

The Tribe also argues the Citys letter of support for taking the optioned lands into trust cannot constitute an approval of a project because the letter is not a necessary step in the fee-to-trust or development process and there is no causal link between the MSA and any environmental impacts that may result from the Gaming Development, since those impacts will occur or not regardless of the MSA. For the following reasons we disagree with these contentions.

The Tribe has miscast the project that was approved by the MSA. It is not the Gaming Development, for the approval of that project, with the exception of the states role in authorizing gambling pursuant to a compact, is confined to the federal government. Nor is the letter of support alone the measure of a project. A project involves the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . . (Guidelines, 15378, subd. (a).) The whole of the action here is the MSA. As noted, it was entered by the City to comprehensively mitigate the environmental impacts of the Gaming Development including the compensation of the City for municipal services and other public services to be provided on the Trust Lands, as provided by this MSA.

A. The Letter of Support

The Citys agreement to send a letter of support for the Gaming Development is an integral part of the MSA committing the City to a definite course of action with regard to provision of services and the vacation of a road in support of the Gaming Development. It is incorporated in the MSA by reference and constitutes the consideration for the Tribes entry into the agreement.

The MSA further provides that the City is prepared to support the Tribes trust acquisition request . . . if the Tribe enters into an enforceable MSA to comprehensively mitigate all impacts of the acquisition . . . including . . . compensating the City for municipal services and other public services to be provided on the Trust Lands, as provided by this MSA . . . .^[17]

The MSA is an agreement that commits the City to a definite course of action with regard to the provision of municipal services for the Tribes proposed Gaming Development and the vacation of the portion of a City road that would provide access to the casino hotel. (Guidelines, 15352, subd. (a).) The inducement to carry out the course of action is the substantial payment that the Tribe agrees to provide to offset the costs of the services and the impact of the Gaming Development upon the City.

While the development of a gaming facility may not be legally dependent on the Citys support in the form of a letter of approval, it perverts reality to assert that the Citys support has no consequences for the process being pursued by the Tribe. The Tribe admits that it is landless and has requested the Secretary to acquire land for it in trust. Title 25 of the United States Code section 2719 provides that gaming may not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988, unless the lands to be acquired are located within the tribes last recognized reservation.

Story continued as Part II ..

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^[1] References to an undesignated section are to the Public Resources Code.

^[2] We shall refer to plaintiffs collectively as the County.

^[3] The Secretary is required to consult with local officials prior to a determination that acquisition of the trust lands would not be detrimental to the surrounding community. (25 U.S.C. 2719, subd. (b)(1)(A).)

^[4] In the year 2000 the City had a population of 980 and covered an area of less than one square mile. ([as of Apr. 11, 2007.]

In the year 2000 the County had a population of 35,100 over an area of 593 square miles. [[as of Apr. 11, 2007.]

^[5] Class III gaming activities, as here, are lawful on Indian lands only if the activities are conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the state . . . . (25 U.S.C. 2710(d)(1)(C).)

^[6] The letter states that it is based upon the determin[ation] that the [MSA] mitigates the potential adverse impacts that could be caused by the proposed development . . . .

^[7] Although Project is defined in the MSA to mean the development of a world-class Gaming Facility, hotel and other businesses consistent with such development, as we have made clear the project for purposes of CEQA consists of the things which the MSA commits the City to construct.

^[8] The MSA further provides that the City shall provide connection to the Citys existing sewer collection system and to obtain necessary easements for sewer infrastructure and to construct the connection to City infrastructure standards and to provide the Gaming Development with a water supply sufficient to meet the needs of the Gaming Development subject to the City obtaining an expansion of its water supply.

^[9] We earlier denied the Countys motion to dismiss the Tribes appeal as untimely.

^[10] A project is defined in section 21065 as:

[A]n activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following:

(a) An activity directly undertaken by any public agency.

(b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies.

(c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.

The term person includes a city. ( 21066.)

^[11] The CEQA guidelines further define a project as:

[T]he whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following:

(1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700.

(2) An activity undertaken by a person which is supported in whole or in part through public agency contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies.

(3) An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (Guidelines, 15378, subd. (a).)

^[12] The Governor is the state officer authorized to negotiate and execute a tribal-state gaming compact with a federally recognized Indian tribe. (Gov. Code 12012.5, subd. (d).) The compact is approved when ratified by the Legislature. (Id., subd. (c).)

^[13] They simply ratify the subject compact without reference to CEQA.

^[14] Government Code section 12012.40, subdivision (b)(2) reads as follows: Except as expressly provided herein, nothing in this subdivision shall be construed to exempt a city . . . from the requirements of [CEQA].

^[15] It is the services provided and not the money paid by the Tribe for the services which are at issue.

^[16] The term person includes a city or county. (Guidelines, 15376.)

^[17] The MSA states the City is prepared to support the Tribes trust acquisition request to the United States if the Tribe enters into an enforceable MSA and in consideration [of the letter of support for the Secretary to take the land into trust] the Tribe has offered to enter into an MSA with the City before any land goes into trust . . . .