Judge: Casino will have to wait until appeal decision

The Wampanoag Tribe of Gay Head (Aquinnah) cannot continue construction of its casino during the ongoing appeal. –Gabrielle Mannino

A federal judge has ruled that the Wampanoag Tribe of Gay Head (Aquinnah) cannot continue construction of its Aquinnah Cliffs Casino project during the pendency of its appeal.

U.S. District Court Judge F. Dennis Saylor issued his ruling Friday rejecting the tribe’s motion for a stay of his final judgment, saying the tribe had failed to make the case that it would succeed upon appeal. In that ruling, issued June 19, Saylor found that while the town cannot stand in the way of a casino project on the tribe’s reservation, the tribe is required to obtain local permits for the project.

The tribe also failed to demonstrate it would face the risk of irreparable injury, one of the standards it needed to reach to win the stay. The tribe has argued that the town is attempting to block its casino project, but Saylor wrote that the tribe’s rights to a gambling facility was secured in the first appeal.

“If the town somehow applies those requirements [for permits] in an unfair or discriminatory manner, or otherwise treats the tribe unfairly, the tribe can seek appropriate relief from this court,” Saylor wrote. “There is no reason, however, at this stage to assume that the tribe will be treated in such a manner.”

The decision protects the town and commonwealth, Saylor wrote. “If the tribe is permitted to construct a facility without complying with those requirements during the pendency of the appeal, and then loses that appeal, the town and the commonwealth will likely find it exceedingly difficult, if not impossible, to apply and enforce those requirements after the fact,” he wrote.

The judge’s decision came one day after the town and the Aquinnah/Gay Head Community Association filed a detailed objection to the tribe’s motion for a stay. “Unless and until the town acts inappropriately on a permitting application, the tribe has no grounds to complain about the mere requirement that it follow the permitting process,” the motion states. “Speculation that the tribe may not receive authorizations that it has never sought is not the basis for a finding of irreparable harm.”

The case now moves to the First Circuit Court of Appeals.