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Sunday, May 10, 2015

Appeals Court Sends Casino Dispute Back to District Court, Again

Appeals Court Sends Casino Dispute Back to District Court, Again

A long-running dispute over revenues from the Fond du Luth Casino is headed back to U.S. District Court after a ruling Friday by a three-judge panel from the 8th Circuit U.S. Court of Appeals.

Updated: 05/08/2015 3:48 PM
Created: 05/08/2015 3:46 PM 

For the second time, a federal appeals court has sent a dispute over Duluth casino payments back to district court, saying the district court did not rule on all of the six factors it had been ordered to consider.

Friday's ruling from a panel of three judges on the 8th District Court of Appeals is the latest in the six-year-old dispute between the City of Duluth and the Fond du Lac Band of Lake Superior Chippewa. This case deals specifically with payments of revenue from the Fond du Luth Casino that the city says should have been made from 2009 to 2011.

The band stopped making payments to the city in 2009 after concluding that its agreement with the city violated federal law. In 2011, the National Indian Gaming Commission issued a notice of violation confirming that the agreement was illegal, but a federal judge ruled in 2011 that the band should still pay nearly $10.4 million for the years 2009, 2010, and 2011.

The band appealed the 2011 ruling, and in 2013 the appeals court sent the case back to U.S. District Court for Minnesota to consider six factors. However, the appeals court now says the district court did not consider one of the factors: the question of whether Congress intended "to ensure that the primary beneficiaries of Indian gaming operations are to be the tribes themselves."

The appeals court has now sent the case back to district court to consider the sixth factor.

Though the notice of violation said federal law requires tribes to be the sole beneficiary of casinos, the City of Duluth has argued that federal law does allow Indian gaming revenues to be used to fund local government operations. However, the appeals court says there is nothing in the record to suggest that the agreement between the city and the band was ever intended to solely cover the cost of city services.

The ruling said that the record indicates property taxes for a non-Indian owner of the casino property would have been $180,930 for 2010, far less than the $6 million the city is seeking for that year. The ruling also said the city has provided almost no evidence regarding the costs of services to the casino and admitted during oral arguments that it had never calculated the costs.

The band had paid 19 percent of gross revenue, totaling $75 million, to the City of Duluth from 1994 to 2009. Mayor Don Ness and other city leaders have repeatedly expressed frustration with the loss of revenue for the city.

Earlier this year, U.S. District Court Judge Colleen Kollar-Kotelly denied the city's attempt to have the NIGC's 2011 notice of violation overturned. The city also lost a federal lawsuit that had tried to prevent the band from placing the Carter Hotel property adjacent to the casino into trust.

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