Mashpee Tribe, Fall River Trying To Work Around Judge’s Ruling Against Casino Deal

By: Brian Kehrl
Published: 11/12/10

Fall River officials are trying again to craft a casino property and development contract with the Mashpee Wampanoag Tribal Council after a judge late last month blocked the proposed sale of 300 acres on the north side of the city.

An emergency hearing was held on Wednesday afternoon in Bristol Superior Court in New Bedford, where an attorney hired by the Fall River Redevelopment Authority argued that Judge Richard T. Moses should allow a new sale agreement that makes no reference to casinos or gaming to go forward.

Attorney Max D. Stern, a Boston attorney brought in by Fall River to argue the case, further argued that the tribe’s sovereign immunity means the court has no jurisdiction to hear the legal challenge of the deal.
Judge Moses gave no indication of when he plans to issue a ruling on the case, but attorneys involved said they expect to hear back next week.

Judge Moses on October 30 issued a preliminary injunction, requiring progress on the still unsigned deal between the city and the tribe to be brought to a halt, in response to a suit filed by a “10-taxpayer group” from Fall River.

 

The judge ruled that the deal violated state open bidding laws as well as the state Bioreserve Act, which pulled the proposed casino property out of a nearby state forest and allowed commercial or industrial development on it, with a specific prohibition against using it for a casino or a landfill.

“The FRRA argues that because the potential construction of a casino would help reduce the jobless rate in Fall River that the granting of a preliminary injunction would not be in the public interest. The court cannot ignore the fact that such transfer would be in violation of the above referenced statutes and would return the city to the detrimental position which the legislature determined had existed and which the Bioreserve Act sought to cure,” the judge wrote in his eight-page decision.

The Fall River Redevelopment Authority, an independent agency formed to promote economic growth in the city, appealed the judge’s preliminary injunction last week, resulting in the hearing on Wednesday afternoon.

Cedric Cromwell, chairman of the tribal council, last week released the following statement through his spokesman: “The Mashpee Wampanoag Tribe is fully committed to developing a resort casino in Fall River, which is supported by the vast majority of Fall River residents, and will provide much-needed jobs and revenue to the area. We believe that we are fully within our rights to purchase land in Fall River and will consider all our legal options to make this project a reality.”

Neither Mr. Cromwell nor Fall River Mayor William A. Flanagan attended the hearing on Wednesday.

Two attorneys for the tribe, Howard M. Cooper and Heidi A. Nadel, were present “as observers” given the tribe’s interest in the case, Mr. Cooper said.

A small group of anti-casino advocates from Fall River attended as well.

Under the previously proposed deal, a corporation set up by the tribe to operate the casino, Project First Light Inc., would purchase outright 45 acres of the 300-acre total property for $4.5 million. The tribe would then have until the end of July 2012 to obtain a gaming license, either through federal Indian gaming law or state approval of commercial casinos, or else the city redevelopment authority would buy back the land.

That contract was the second deal negotiated between the tribe and city officials, after a first attempt was scuttled when Governor Deval L. Patrick and state legislative leaders could not come to an agreement on details of a gaming bill. Despite both houses of the state Legislature passing bills that would allow casinos in the state, the bills stalled and remain so as the beginning of a new legislative session approaches in January.

According to news reports, Gov. Patrick, who was reelected to a second term last week, is maintaining his support for resort casinos in the state. Senate President Therese Murray and House Speaker Robert A. DeLeo, whose support for casinos was key to getting the bills passed, were both reelected and are on track to retain their leadership positions.

The redevelopment authority has since submitted a revised version of the contract, stripping it of any reference to gaming. The authority approved the new language at a meeting late last week.

Mr. Stern, arguing in court on Wednesday afternoon, said that change should be enough to assuage the judge’s concerns about the earlier contract. There is now nothing in the sale agreement that is in violation of the Bioreserve Act, he said, though he went on to argue that the sale of a property for a use that is currently not allowed is done all the time. Corporations like Wal-Mart can purchase property with the intention of building a box store, even if box stores are not allowed, with the intention of pursuing a zoning change, he said.

The redevelopment authority may be taking a risk that the Bioreserve Act will be changed and gaming will be allowed on the property, but that is the redevelopment authority’s prerogative and not open to challenge from a 10-taxpayer suit.

Mr. Stern also asserted that the plaintiffs have no right to challenge a property sale that stands to bring money into the city. The law that allows 10-taxpayer suits only permits challenges to actions that will cost the taxpayers money, which the land sale would not, he said.

Mr. Stern argued that because First Light, the company set up this year by the tribal council to develop property for the tribe, is solely owned by the tribe—and not the tribe’s casino investors—and because the First Light corporation is party to the contract at the heart of the 10-taxpayer suit, the tribe’s sovereign immunity protects the whole deal from being questioned in superior court. The four top elected officials from the tribal council—Mr. Cromwell, Vice Chairman Aaron Tobey Jr., Treasurer Mark D. Harding, and Secretary Marie Stone—are the directors of Project First Light.

He cited as precedent in Massachusetts the “Bingham case,” in which a group of tribe members including Amelia G. and Steven P. Bingham sued the Mashpee Wampanoag Indian Tribal Council Inc. But a judge found that even though the corporation was set up as a regular nonprofit under state law, it was a function of the tribe and therefore immune from suit in superior court. So just like the nonprofit tribal council could not be sued, nor can Project First Light or its deal with the city, Mr. Stern said.

Judge Moses asked Mr. Stern why the tribe does not then challenge the suit, to which Mr. Stern replied that even challenging it in court would constitute a waiver of the tribe’s sovereign status.

An attorney for the 10-taxpayer suit, Lesley S. Rich, however, argued that the suit is not against the tribe. “Our action is only against the governmental agency, to make the government do what it is supposed to do,” he said. “It is the right of the taxpayers to, in effect, police their government.”

He said the contract is not a standard land sale, with the city selling a piece of property in exchange for a certain amount of money. The contract involves extended obligations, including partnering with the tribe and its casino financiers from Arkana Ltd., which the taxpayers should be allowed to challenge, Mr. Rich said.

He said the new contract, with “casino” replaced by “the buyer’s use,” is a “sham transaction.” It may not reference gaming, but the redevelopment authority has made clear that gaming remains the intended use of the land. And gaming is prohibited on the 300-acre property, he said.

The judge gave little indication of his impressions of the arguments, asking few questions of either attorney.

Mr. Stern also raised questions about the members of the 10-taxpayer group, saying they have not been vetted and some of them may represent a tribe with a competing interest in a casino.

Mr. Rich, however, said that of the group of 12 people who have signed onto the suit, one is a member of the Pocasset Wampanoag Tribe.

“This is really a non-partisan group,” Mr. Rich said, suggesting that the members have a variety of different reasons for signing on, from general opposition to a casino to a desire to see the city’s process become more transparent. “This has nothing to do with the tribes.”

The briefs in the 10-taxpayer suit make no reference to the Pocasset tribe, which is recognized by the state but not the federal government. The Mashpee tribe earned federal recognition in 2007.

In addition to representing the citizens in the 10-taxpayer suit, Mr. Rich is also an attorney for the Pocasset tribe. Last month he submitted a letter to the redevelopment authority on behalf of the tribe, arguing that the Pocassets and not the Mashpees have historical ties to the 300-acre property.

George Spring Buffalo, chairman of the Pocasset tribe and not a member of the 10-taxpayer group, said in an interview last week that the suit is separate from his tribe. But he said the suit was born out of a sense that someone should make a stand that the redevelopment authority and mayor’s administration need to be more transparent.

“[The tribe is] saying to the taxpaying people that you have a voice. If we need to give you assistance through our attorney, then that is what is done,” he said, adding that getting involved puts the tribe in the position to help the city.

“The suit itself is from the 10 taxpayers, but I think from the territorial aspect of it, [the Pocasset tribe] sent the letter to the redevelopment authority. We have been trying to meet with the administration for almost a year. They know who we are, and it is our territory. There is no question whose territory it is,” he said. “If there is anything going on from an economic development aspect, including gaming, it should be the territorial tribe that is benefiting from it...If the Mashpees were to come in and say we want to partner, that is something we could sit down and talk to them about.”

He said he has not reached out to Mr. Cromwell directly to request a meeting to talk about partnering on the project. “But Mashpee knows my number. And they are coming into our territory, we are not going into theirs. And that is protocol. That is native protocol. That is like me walking into your house. I don’t walk into your house. I ask if I can come in,” he said, emphasizing that his grievance is with the Mashpee tribal council, not the members of the tribe.