Decision nigh on casino exclusivity
BOSTON — A federal judge could decide by the end of this month whether to dismiss a lawsuit brought by a casino developer objecting to the exclusive window the state's casino law gave to the Mashpee Wampanoag Tribe.
At a status hearing Monday, U.S. District Judge Nathaniel Gorton was asked by the state to dismiss the suit because KG Urban Enterprises Inc. already has what it wants: a shot to bid on the casino license set aside for Southeastern Massachusetts.
"The world changed in April and the court should take note of this and render (the lawsuit) moot," said Daniel Hammond, an assistant attorney general.
In April, the Massachusetts Gaming Commission voted to open Southeastern Massachusetts, known as Region C in the state legislation, to commercial casino bids competing against the $500 million Indian casino proposed by the Mashpee Wampanoag in Taunton. The commission is currently accepting applications with a deadline of Sept. 30 for developers to file the paperwork for background checks along with a $400,000 nonrefundable check.
KG Urban, which hopes to build a casino on the New Bedford waterfront, filed suit on the same day the state's Expanded Gaming Act was signed into law. The developer objects to the provision giving the state's federally recognized tribes an exclusive period to get federal approvals for an Indian casino. The company complained that the state law violated the Equal Protection Clause of the U.S. Constitution by providing a race-based set-aside for the tribes.
The Massachusetts law recognized that the Indian Gaming Regulatory Act of 1988 gives tribes the federal right to provide gambling on reservations equivalent to what's allowed under state law, Hammond said. "All the Legislature tried to do was deal rationally with that difference," he said.
But attorneys for KG Urban argued that unless the court orders the commission to judge the company's application on an equal footing with other regions, their client could spend millions and not get a fair shake. They want a neutral and fair process "untainted by race," KG Urban attorney Jeffrey Harris said.
KG Urban's position is that the developer is already at a disadvantage because the other two regions of the state where licenses could be issued are six months ahead, Harris said.
"(They) have no certainty that the standard under which their project will be evaluated will be fair," he said.
Hammond's response was that developers in the other two regions are also taking a chance that the commission could conclude that casinos in those areas are not economically viable.
Unlike previous court hearings in the case, there were far fewer attorneys. That's because both the Mashpee Wampanoag and the Wampanoag Tribe of Gay Head (Aquinnah) were told they could not join the suit to protect their interests in a decision from Gorton last month. The Aquinnah tribe is appealing that ruling.
Gorton said he hopes by the end of July to make a decision on whether to dismiss the case. Assuming he decides in favor of KG Urban, he set a schedule to accept arguments for summary judgment by the end of August.
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