Appeals Court Blocks Mashpee Tribe Land Sale Again

By: Brian Kehrl
Published: 12/24/10

The future of the Mashpee Wampanoag Tribe’s proposed casino in Fall River is up in the air after a state Appeals Court judge this week upheld a legal challenge to the sale of the proposed casino property.

In response to the judge’s decision on Tuesday, Fall River officials said this week that they would not likely continue to fight the case in court, a determination that could sharply alter the prospects for the casino to move forward on the path that tribe and city officials have so far described.

“We are in a situation that it would be a protracted litigation and very expensive, and I don’t think that is the right way to go,” said William G. Kenney, chairman of the Fall River Redevelopment Authority, a semi-independent city agency that owns the proposed casino property.

Mr. Kenney said the project is not yet dead. But he said he will need to hear indications that the tribe can obtain either federal or state approval to open a casino in the next few months in order to continue his support for using the property for a casino instead of the previously proposed biomedical research facility.

“We are sort of waiting for the mayor to complete his evaluation of the situation. But I think pretty much everyone agrees that the litigation aspect is now over,” he said.

Fall River Mayor William Flanagan said this week that he will be speaking to “all interested parties” to determine whether the city should continue pursuing the casino or reverse course and re-secure the bio-tech facility sponsored by the University of Massachusetts Dartmouth, according to reports in the Fall River Herald News. His comments were the first signs of doubt in pursuing the casino at the proposed property off Route 24 in northern Fall River. Mr. Flanagan did not return a call seeking comment this week.

Tribal council Chairman Cedric Cromwell also did not respond to messages left this week requesting comment on the judge’s decision and the future of the project.

A temporary injunction against the land sale was issued by Bristol Superior Court Judge Richard T. Moses back in October, just before the redevelopment authority and the tribe were set to sign the deal. The Mashpee Wampanoag Tribal Council created a new corporate entity, Project First Light, to purchase the 300-acre site for a total of $21 million, money to be provided by the tribe’s Malaysian casino financiers.

The suit was brought by a “10-Taxpayer Group” from Fall River, led by pro bono attorney Lesley S. Rich, who also represents the Pocasset Wampanoag Tribe. The Pocasset Wampanoag is a state-recognized tribe that has argued that the Fall River casino site is in their aboriginal homeland, not the Mashpees’.

The suit claimed that the property sale should not be allowed because gaming is currently prohibited there under a 2002 state law that set the land aside from the state for commercial or industrial development to benefit Fall River. The property was pulled out of state-protected conservation land under the 2002 Bioreserve Act. Judge Moses also found that the land sale process violated state open bidding laws.

The Fall River Redevelopment Authority appealed the ruling in superior court last month, arguing that the tribe’s sovereign status should protect the deal from suit and that no gaming would be allowed on the property unless it became legal. In response Judge Moses maintained the temporary injunction.

Following oral arguments in Boston on Monday afternoon, Judge Scott Kafker released a three-page decision, ruling that the Fall River Redevelopment Authority’s case should be first decided in more detail in a lower court.

“Numerous novel legal issues are raised by both parties, including the threshold question whether the transaction in question is subject to a ten tax payer suit...I conclude that judicial review of the complex matters raised here, which greatly impact on the course of economic development in Southeastern Massachusetts, is best served by denying relief on the petition pending further decision by the Superior Court on at least the issue of whether the ten tax payers have standing to challenge the transaction,” Judge Kafker wrote.

Lawyers for the city agency had argued that the 10 taxpayers could not sue the redevelopment authority, because the state law that allows for 10-taxpayer lawsuits only references towns, school districts, and other municipal entities, not redevelopment authorities created by state law. Mr. Rich described the argument as a “technicality” that does not have much legal precedent in Massachusetts.

Mr. Rich said the redevelopment authority may be different than a town, but it is still funded with taxpayers’ resources. He said the authority’s operating budget is funded in part by proceeds from two parking lots it was given by the city. “It is like moving money out of one pocket and putting it in another,” he said.

Even if the judge decided that the case could not move forward against the redevelopment authority alone, he said he could add the city as a co-defendant.

Judge Kafker wrote that the lower court is the proper venue to develop the case record on questions like the relationship between the redevelopment authority and the city.

Mr. Rich said Judge Kafker’s decision means a trial, with lengthy time allotted for research and depositions, would be the logical next step.

Mr. Kenney said the prospect for an extended court battle would likely be enough to dissuade the redevelopment authority from pursuing another appeal.

But he said he was still interested in hearing whether gaming may be legalized in Massachusetts or whether the tribe could receive federal approval to open a casino at the site.

“My feeling is that our best bet is probably with the state. But I need some hard information on both of these avenues,” he said. “If the legislature says we have other priorities and we are not going to talk about gaming until September, that means may we are going to give up on this project.”

The project may be facing at least one new, high hurdle, however. State Senator Joan M. Menard (D–Fall River), a close ally of Senate President Therese Murray who stood by Mr. Flanagan’s side in support the night the city’s deal with the tribe was first announced, did not run for re-election this fall. She will be replaced next month by current state Representative Michael Rodrigues, a gaming opponent and staunch advocate for the biomedical research facility at the casino site.

“He is not going to support this project,” Mr. Kenney said of Mr. Rodrigues and the casino. “The state is always looking for local support for projects like this...I think that could be a big piece of the puzzle.”

Releasing the state restriction on gambling on the Fall River property may be more difficult than previously imagined as well.

The Trustees of Reservations, a prominent land conservation group involved in the original creation of the protected forest, believes that lifting the casino ban would require a two-thirds majority vote from the state legislature, rather than the simple majority required for most bills.

The 2002 Bioreserve Act required a two-thirds majority, and so should any bill to change the legal uses of the property, said Jennifer Dubois, Southcoast conservation director for the Trustees of Reservations. “We are not determining how the city should use that land, but we feel that the proper procedure needs to be followed,” she said.