Appeals court reinstates case against tribal preference
A federal appeals court panel of three judges has sent KG Urban's challenge of the tribal preference for a casino in Southeastern Massachusetts back to U.S. District Court for further deliberation.
While "we affirm the denial of KG's request for injunctive and declaratory relief ... there are difficulties with each party's arguments," wrote Sandra Lynch, chief judge of the United States Court of Appeals for the First Circuit. "In the end, though, it is clear to us that KG's suit should not have been dismissed."
The case will be sent back to Judge Nathaniel Gorton, who in February rejected KG's claim that the tribal preference in the state's Expanded Gaming Act was race-based, ruling that, "Unfortunately, governing case law is to the contrary."
But the appeals court found that a particular case cited by Gorton does not apply and that approvals necessary for a tribal casino revolve around "a question not yet resolved" — the ability of the Mashpee Wampanoag to have land in Taunton taken into trust.
Gorton indicated the linchpin of his ruling was a Supreme Court case that determined that special treatment of tribes was politically, not racially, based. But the appeals court said that applies only to the federal government, not the state.
In addition, the appeals court recognized the obstacles presented by the Supreme Court's Carcieri decision, which prevents the federal Department of the Interior from taking into trust land for any tribe that was not under federal authority in 1934. The Mashpee Wampanoag were recognized in 2007.
A spokesman for Gov. Deval Patrick, lead defendant in KG's suit, declined to comment, saying he had not yet seen the ruling.
The next step in the case likely will be a status hearing in front of Judge Gorton. Proceedings may be delayed because the state will need to appoint new counsel, as assistant Attorney General Kenneth Salinger was appointed a Superior Court judge last week.
Andrew M. Stern, managing director of KG, issued the following statement: "Chief Judge Sandra Lynch and her colleagues on the U.S. Court of Appeals for the First Circuit First Circuit colleagues have unanimously rejected the commonwealth's central argument, have reinstated our complaint and remanded the case for further proceedings.
In light of the Gaming Commission's announced schedule, which officially leaves the city of New Bedford and the entire southeast region behind, today is a victory for all of the citizens of the city and the region."
The state's Expanded Gaming Act allows up to three casinos in three distinct areas of the state, plus a slots parlor, and gives federally recognized tribes a head start on the process for obtaining the Southeastern Massachusetts license.
For exclusive gaming rights in the Southeast, the Mashpee Wampanoag had until July 31 to acquire property for its casino; schedule a referendum vote in the host community; negotiate a gaming compact with the governor and have it approved by the Legislature, and convince the state gaming commission that its property would be taken into federal trust.
The commission has said it is willing to wait for years, if necessary, for the federal Department of the Interior to take the land into trust. The tribe also needs Bureau of Indian Affairs approval of the compact.
Only if all that failed would commercial applicants be allowed to seek a license in Southeastern Massachusetts.
KG, which has been laying the groundwork for a casino development in New Bedford for four years, has argued that that's both unfair and illegal. "Southeastern Massachusetts is essentially being left behind," Stern said.
KG already has spent more than $5 million on its proposed casino at the abandoned Cannon Street power plant on New Bedford waterfront and has projected total spending of more than $1 billion if the group is ultimately awarded a casino license. And it would be far more beneficial to the area than a sprawling Indian casino built in an industrial park, Stern argued.
First, it would clean up a contaminated urban brownfields area at an anticipated cost of $50 million, something Stern said the government would be hard-pressed to do itself. And second, it would provide an economic engine to revitalize a struggling downtown and replace long-gone manufacturing jobs.
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