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State says bid process nullifies casino suit
KG Urban Enterprises got what it wanted all along and shouldn't be entitled to summary judgment in its lawsuit against the state's casino law, according to a brief filed by Attorney General Martha Coakley Friday in U.S. District Court.
The 12-page brief was filed in advance of oral arguments scheduled for Nov. 21 in the dispute over whether the state should have given federally recognized Indian tribes, particularly the Mashpee Wampanoag Tribe, a head start to seek a tribal casino in Southeastern Massachusetts.
Both the state and KG Urban lawyers filed separate briefs Friday seeking to be declared winners in the 2-year-old case.
KG Urban claims the tribal provision in Southeastern Massachusetts, known as Region C in the legislation, amounted to a "race-based, set aside" that violates the U.S. Constitution's "equal protection" amendment.
State leaders have argued that including the tribal provision was recognition of the potential federal rights for an Indian casino if the Bay State legalized expanded gambling. "Put simply, the facts on the ground in November 2011, were materially different in Region C than in the other two regions created by the gaming act," the court document states. "Two federally recognized Indian tribes had historical ties to that region."
It's been a back-and-forth battle in the case, a federal judge initially dismissing the lawsuit and the First Circuit Court of Appeals overruling saying that the state could not give Indian tribes an indefinite amount of time to get federal approvals.
The tribe is still seeking its $500 million Indian casino in Taunton, but faces a legal tangle of federal hurdles that includes having land in Taunton and Mashpee taken into federal trust. That process, already a lengthy and arduous task, was recently delayed by the federal government shutdown.
"Our regional staff is back in the office and the Mashpee Wampanoag application is still in the review process," Nedra Darling, a spokesman for the federal Bureau of Indian Affairs said Monday.
The state Senate must still approve the compact reached between the tribe and Gov. Deval Patrick that would pay the state a percentage of gross gaming revenues ranging from 21 percent to zero based on the level of nearby competition. The House approved it overwhelmingly earlier this month.
No date has been scheduled for the Senate vote, Laura Oggeri, a spokesman for Senate President Therese Murray, D-Plymouth, said in an email Monday. Once approved and signed by Patrick, the BIA would have 45 days to act on it.
On Sept. 27, just three days shy of a Massachusetts Gaming Commission deadline, KG Urban paid a $400,000 nonrefundable fee and filed an application to seek a commercial casino license for a New Bedford waterfront site. KG Urban is the only commercial bidder in Region C, though the commission will entertain proposals from companies that miss out on the slot parlor license or the two other casino licenses.
By opening Region C to commercial bids, "the commission extinguished any surviving claim of discrimination based on an indefinite wait," Coakley's brief states.
But in their brief, KG Urban lawyers argued that the continued presence of the tribe in the region and the commission's consideration of that is proof that the process is not the same in Region C as in the other two regions. Lawyers for company pointed to public comments made by commission Chairman Stephen Crosby that the tribe has a "powerful head start" and comments by Patrick that he "would bet on" a tribe casino in Taunton.
Coakley's brief makes the argument that all three regions' commercial bids will face the same criteria, namely economic conditions and benefits to the state.
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