County motion in casino case denied

Federal judge refuses to throw out revised opinion about Cowlitz

By Stephanie Rice, Columbian Vancouver city government reporter

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A federal judge in Washington, D.C. on Thursday denied a motion by Clark County and other plaintiffs to throw out a revised opinion that had reaffirmed the Cowlitz Indian Tribe's right to establish a reservation and build a casino west of La Center.

After denying the motion, the judge set a briefing schedule in advance of a trial on the issue of whether the tribe should be entitled to take the land into trust.

A 2012 Record of Decision acknowledged documents that had been either lost or never received by the Bureau of Indian Affairs before its 2010 Record of Decision had since been reviewed. The missing documents, submitted by a plaintiff's attorney during the course of exchanging evidence, had challenged the tribe's assertions that it had significant ties to land west of La Center.

Federal attorneys wrote in the 2012 opinion that, despite those documents, they stand by the decision that the tribe has "significant historical connections," as required to take the land into trust.

Plaintiff's attorney Benjamin Sharp, from Washington, D.C., argued Thursday to U.S. District Judge Barbara J. Rothstein that the revised opinion should be tossed, and the defendants should have to rely on the 2010 opinion, which the federal government admits was written without reviewing what plaintiffs feel is significant evidence.

According to a transcript of the hearing, Sharp told Rothstein that prior to the 2010 opinion, Clark County "submitted a number of expert reports and other factual materials that went to the issue of the tribe's historical connection to the land, the site of the proposed casino that is a critical question, and qualifying that land as initial reservation, therefore qualifying it for gaming," Sharp said.

U.S. Department of Justice attorney Kristofor R. Swanson told Rothstein that Congress gives a federal agency "the inherent authority to reconsider its decisions," according to the transcript.

Washington, D.C. attorney Robert D. Luskin, representing the Cowlitz Tribe, also urged Rothstein to rule against the county.

"The tribe has been landless for 150 years. It has been recognized for 11. The application to take land in the trust has been pending for 10," Luskin said, according to the court transcript. "This litigation and the Interior Department's decision is more than two years old. We also understand that the elephant in the room is gaming, but we also need to bear in mind that the delay imposes significant hardships on the tribe, both financial and cultural, and in terms of the exercise of its sovereignty."

Delaying the case, Luskin said, only hurts the tribe. "And the plaintiffs' suggestions make sense only if we're being paid by the year, and we're not."

In denying the motion, Rothstein said she'll let the case go forward on the 2012 Record of Decision.

"There isn't a change in the substance of the case; there is a change about one portion of the case," she said. "To send it back when everybody knows exactly what the result is going to be gains nothing but an extended delay in what already has been a case that has been delayed," Rothstein said.

A trial date has not been set.

The 2010 Bureau of Indian Affairs decision was appealed by Clark County, 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.

Plans for the 152-acre Cowlitz site, made before the recession, call for a $510 million complex 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.

The Connecticut-based Mohegan Tribal Gaming Authority partnered with Cowlitz tribal member and real estate developer David Barnett of Seattle on casino operation.

Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.