Tribe and town back in court over casino project

Town files motion asking for ‘final judgment’ to require tribe seek town permits.

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The town is back in court asking a U.S. District Court judge to force the Wampanoag Tribe of Gay Head (Aquinnah) to get building permits.

Updated April 30

The town of Aquinnah and the Wampanoag Tribe of Gay Head (Aquinnah) are back in federal court battling over the tribe’s casino project.

Earlier this month, the town filed a motion in U.S. District Court in Boston seeking “final judgment” from Judge F. Dennis Saylor IV, who previously ruled in favor of the town, state, and Aquinnah/Gay Head Community Association before the ruling was overturned on appeal. The U.S. Supreme Court rejected a request to review the appeals court decision. That suit was originally brought in state court by then-Gov. Deval Patrick as a breach of the 1987 settlement agreement between the town and the tribe.

Both the town and the Martha’s Vineyard Commission have asked the tribe to go through the town permitting process for its electronic bingo hall since construction began earlier this year. The tribe contends that local permits are not required, and the facility is regulated by the National Indian Gaming Commission, which has issued the necessary licenses.

The federal Indian Gaming Regulatory Act (IGRA) allows Class II casinos on Indian lands without a license or compact agreement with the state, the tribe contends.

In a motion filed April 4 on behalf of the town, attorneys say, “Final judgment is necessary to prevent the town from suffering irreparable injury.”

Washington-based attorney William May of Goodwin Procter is listed as the lead attorney for the town. Douglas Kline of Goodwin Procter’s Boston office and town counsel Ronald Rappaport are also listed for the town. John J. Duffy, Lael Echo-Hawk, and Scott Crowell are the lead attorneys listed on the docket for the tribe.

In supporting documents, the town’s attorneys request that the tribe be required to get permits, including a building permit and a license from the state, in order to build the facility.

“Since the tribe never raised the permitting issue on appeal, in its decision, the First Circuit addressed only whether the IGRA applies to the Settlement Lands and whether it displaced local and state authority over gaming on those lands,” the town’s attorneys wrote.

The town questions the tribe’s building practices in its motion. “Because the tribe has not sought a building permit or allowed the town’s building inspector to enter the property, the town has no way of knowing whether the tribe’s construction methods — let alone the design of the facility — pose a direct threat to public health, public safety, or the natural environment. For all the town knows, the tribe may be disposing of construction waste improperly, or may be removing trees that play an important role in flood prevention. These are not purely hypothetical concerns: Based on publicly available information, the town believes that the tribe has recently made illegal use of a power source.”

In its response April 18, tribe attorneys say the final judgment suggested by the town would violate what was ordered by the appeals court. Tribe attorneys say judgment should be entered in favor of the tribe. The town fails to understand the tribe’s sovereignty over tribal lands, the response concludes. “The town, acting out of fear, makes bald assertions that the tribe’s action ‘threatens irreparable harm to the town’s residents, visitors, and the natural environment,” the tribe’s response states, “…yet the town fails to provide a scintilla of evidence to substantiate its claims.”

In its motion, the town alleges the tribe won’t follow building and environmental regulations.

“But with respect to the gaming project envisioned by the tribe, the critical difference is that both federal and tribal law forbid the irresponsible conduct and building practices which the town now fears and alleges in its motion,” the tribe’s response states.

There’s an interesting side dispute playing out in the court documents. An electrical contractor working on the project — not knowing that the project didn’t require town permits — sought a town permit to disconnect electricity to a building on the property before it was demolished. According to court records, the town did not issue a permit, and instead instructed Eversource to cut power to the property.

“This ‘end run’ on the tribe’s jurisdiction underscores the reality that the town is not genuinely interested in providing routine nondiscretionary permits, but rather, seeks to abuse any permitting authority to unjustly frustrate the tribe’s efforts to open its gaming facility, and to interfere with the tribe’s exercise of its gaming rights,” tribe attorneys wrote in a footnote.

Town attorneys, in a motion filed April 25, have requested the opportunity to respond to the tribe’s claims. The supporting document suggests that the appeals court left the question of whether the tribe is required to get permits unchallenged.

“Whether or not the tribe is right or wrong in its contentions that its construction methods and building plans pose no risk is irrelevant,” the town states in its response. “The town has an independent obligation to protect the public health and safety by enforcing generally applicable building requirements. Indeed, if the tribe’s preexisting safeguards are as strong as advertised, the tribe should have no trouble acquiring all necessary permits.”

On Monday, the state re-entered the fray, objecting to the tribe’s request that the state be “permanently enjoined from asserting jurisdiction over, or interfering with, the tribe’s rights under the Indian Gaming Regulatory Act.”

The state’s motion, filed by the Attorney General’s office, states that all counterclaims against the state were dismissed in 2015. The state seeks to preserve its rights under the settlement agreement, according to the motion.

“The commonwealth is unaware of the planned scope or details of the tribe’s intended project,” the motion states. “The tribe may undertake activity connected to its planned gaming establishment that falls outside the jurisdictional reach of IGRA and triggers commonwealth regulatory jurisdiction, such as the offer of water transportation from the mainland to the gaming establishment and placement of a wharf in commonwealth waters.”

No date has been set for a hearing on the various motions.

Updated with new motion filed by the state on Monday. -Ed.