AG rejects county’s request to intervene in casino lawsuit
Wednesday, September 7, 2011
Washington state Attorney General Rob McKenna has turned down Clark County’s request to intervene in its lawsuit against the federal government over the decision to allow the Cowlitz Indian Tribe to establish and build a casino near La Center.
A deputy attorney general, Rob Costello, sent a rejection email on Wednesday to Commissioner Steve Stuart and county deputy prosecutor Lawrence Watters.
Costello thanked Stuart and Watters for arranging a call with attorneys from the Washington, D.C., office of Perkins Coie, which is representing other plaintiffs in the case.
The call provided “useful information that we factored into our thinking about your case,” Costello wrote.
“After consulting with some of the interested client agencies and with the governor, however, we have decided not to intervene in the case at the trial court level. All of the parties are capably represented by very good legal counsel and we are confident that the issues will be fully and fairly presented to the court. Thank you again for the information that you shared and for the invitation to participate,” Costello wrote.
As Clark County Commission Chairman Tom Mielke joked Wednesday, the email was the most polite brush-off he’s ever received.
Last month, Stuart said he had asked McKenna to intervene, but McKenna expressed concerns.
Stuart told Mielke and Commissioner Marc Boldt that the state typically backs a political subdivision in a fight against the federal government. He said attorneys involved in the case said that if the state stays silent it will not be unnoticed by the judge.
The lawsuit was filed Jan. 31; the federal government has denied all 19 pages of allegations.
No date has been set for oral arguments.
The challenge has taken on a special significance after the Obama administration chose to make the Cowlitz land trust case a test of a 2009 ruling by the U.S. Supreme Court.
In that ruling, known as Carcieri, the high court said the government can put land into trust only for tribes that were under federal jurisdiction in 1934.
In saying the Cowlitz could establish a reservation, Assistant Secretary for Indian Affairs Larry Echo Hawk addressed Carcieri at some length in his December decision.
“For purposes of our decision here, I need not reach the question of the precise meaning of ‘recognized Indian tribe,’ as used in the (Indian Reorganization Act), nor need I ascertain whether the Cowlitz Tribe was recognized by the federal government in the formal sense in 1934, in order to determine whether land may be acquired in trust for the Cowlitz Tribe,” Echo Hawk wrote in his ruling.
The Cowlitz were federally recognized in 2000; that recognition was challenged and reaffirmed in 2002.
“The Cowlitz Tribe’s federal acknowledgment in 2002, therefore, satisfies the IRA’s requirement that the tribe be ‘recognized,’” Echo Hawk wrote.
Joining Clark County in the challenge of Echo Hawk’s decision: the city of Vancouver; nearby property owners Al Alexanderson, and Greg and Susan Gilbert; Dragonslayer Inc. and Michels Development, operators of the four La Center cardrooms; and Citizens Against Reservation Shopping, a group that includes Scott Campbell, publisher of The Columbian.
The plaintiffs also argue, and the defendants deny, that the current plans have inadequate mitigation for stormwater, traffic, light and noise.
The defendants are the U.S. Department of the Interior, the Bureau of Indian Affairs and the National Indian Gaming Commission.
The day after Clark County filed its lawsuit, the Confederated Tribes of Grande Ronde — owners of the Spirit Mountain casino in Oregon, which draws gamblers from Clark County — filed a nearly identical lawsuit.
The cases were assigned to the same judge and may be consolidated, according to court filings.
The plans for the Cowlitz reservation, which would be west of the Interstate 5 interchange in La Center, call for a two-story casino with 3,000 slot machines, 135 gaming tables, 20 poker tables and a 250-room hotel, plus an RV park, 10 restaurants and retail shops.
But that $510 million complex was proposed before the economy tanked, and the Connecticut-based Mohegan Tribal Gaming Authority, which partnered with Cowlitz tribal member and real estate developer David Barnett of Seattle to operate the casino, has had its credit rating repeatedly downgraded by Moody’s Investors Service.