KG Urban files legal response to oppose Mashpee Wampanoag lawsuit intervention request
Posted Oct 05, 2012
KG Urban equity partner Barry Gosin speaks to the
New Bedford Area Chamber of Commerce on Wednesday
Already locked in a courtroom battle with the commonwealth, the firm that hopes to build a commercial casino on the New Bedford waterfront continues to find itself at legal odds with the American Indian tribe that’s pursuing a casino in Taunton.
KG Urban Enterprises filed a legal response Friday to formally oppose the Mashpee Wampanoag tribe’s request that the firm’s pending lawsuit against the state be dismissed.
“The Mashpee’s motion is remarkable for its sheer audacity,” KG Urban’s attorneys say in the response filed in federal court. “Notwithstanding that this litigation was initiated nearly a year ago and has already been the subject of decisions by this Court and the First Circuit, and notwithstanding that KG’s complaint concerns the constitutionality of a state statute, the tribe moves to intervene in this case at this late stage, while purporting not to waive its tribal sovereign immunity.”
Under the section of the law KG Urban is challenging, commercial developers in southeastern Massachusetts would only get a chance to bid for a gaming license if the Mashpee fail or hit significant delays in their quest to build an American Indian casino in Taunton. The fate of that provision rests in the outcome of the lawsuit, which claims the state law violates federal and state equal protection clauses.
KG Urban said in a previous court motion that it is “challenging the Commonwealth’s grant of a race-based regional gaming monopoly to a single, landless tribe — the Mashpee Wampanoag.”
The Mashpee and the Aquinnah Wampanoag tribes have each requested in recent weeks to intervene in KG Urban’s suit against the state.
“The Tribe’s rights cannot be protected by any of the parties already in this case or by the Aquinnah,” the Mashpee tribe’s attorneys said in a motion to intervene in KG’s suit against the state for the sole purpose of seeking dismissal. “While the Commonwealth and the Tribe both have an interest in upholding the Act and the Compact, the Tribe’s interests are unique to it and the Commonwealth is not in a position to protect them. The Commonwealth and the Tribe were on opposite sides of the negotiating table vis-à-vis the Compact and do not have the same interests in ensuring it is enforced as written.”
The commonwealth, in a response filed Friday by Attorney General Martha Coakley, took no position on the Mashpee’s request to intervene in the case.
The state law allows for up to one casino in each of three regions of Massachusetts, but the commonwealth won’t solicit bids for a commercial casino in the southeastern region unless the Massachusetts Gaming Commission determines the Mashpee are unlikely to have land taken in trust by the federal government. The tribe has signed a compact with the state and has a land application pending with the U.S. Department of the Interior.
The Department of the Interior is expected to act on the compact by Oct. 15. There is no deadline by which it’s required to take action on the land-in-trust application.
“This is fundamentally a dispute between KG and the Commonwealth, and the Commonwealth is quite capable of defending the constitutionality of its own statute,” KG Urban’s attorneys state in the legal response. “The Mashpee may have an economic interest in the outcome of this suit — namely, their desire to build a casino free from non-tribal competition — but courts have repeatedly held that economic self-interest is not a ‘legally protected’ interest …”
Since the federal Indian Gaming Regulatory Act allows a casino to be built by any federally recognized tribe with sovereign land in a state that allows casino gambling, Massachusetts decided to give the Mashpee a chance to resolve their land issues before deciding whether to open up the southeastern region to competitive commercial bids. Gov. Deval Patrick has said that he doesn’t believe the market in Massachusetts can sustain more than three casinos statewide.
The Aquinnah are also pursuing a casino, but the Patrick administration has refused to negotiate a compact with them, maintaining that they forfeited their rights to gaming in a 1980s land settlement. The Aquinnah dispute the governor’s assessment.
http://www.tauntongazette.com/news/x1784018527/KG-Urban-files-legal-response-to-oppose-Mashpee-Wampanoag-lawsuit-intervention-request?zc_p=1
From a previous article:
Barry M. Gosin, equity partner and principal in KG Urban Enterprises, is expected to speak about the group's proposal to build a casino at the site of the abandoned Cannon Street power plant in New Bedford. Gosin also serves as CEO of Newmark Grubb Knight Frank, a New York-based real estate firm that is not affiliated with KG Urban.
Read more: http://www.tauntongazette.com/news/x1843771282/Company-seeking-New-Bedford-casino-to-present-proposal-at-forum#ixzz28WwvMzOt
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