In a stunning reversal that dealt a serious blow to plans for a Cowlitz Indian Tribe casino, a federal judge in Washington, D.C., reversed herself Wednesday and threw out a 2010 Record of Decision that gave the tribe the right to establish a reservation west of La Center.
Last week, U.S. District Judge Barbara J. Rothstein denied a motion by Clark County and other plaintiffs to throw out a revised Record of Decision. The federal government issued the revised decision in 2012 in acknowledgment that its 2010 Record of Decision on the Cowlitz was flawed. Rothstein later said she’d reconsider her ruling.
On Wednesday, Rothstein issued a 12-page decision explaining her conclusion that the plaintiffs had been correct: “To allow the federal defendants to unilaterally change the 2010 ROD would run afoul of the (Administrative Procedures Act’s) limits on administrative review and undermine this court’s jurisdiction.”
But by saying the federal government shouldn’t have been allowed to issue a 2012 ROD, it left the government in a position to try and defend the 2010 ROD, which has been withdrawn.
“The court will not waste its or the parties’ resources on such a fruitless endeavor,” Rothstein wrote. “The court is also cognizant of the fact that the parties have been locked in this battle for nearly 11 years.”
Rothstein ordered the U.S. Department of the Interior, which includes the Bureau of Indian Affairs, to issue a new Record of Decision within 60 days.
“This case is hereby dismissed as moot,” Rothstein wrote.
Assistant Vancouver City Attorney Brent Boger said Wednesday that it’s not yet clear what will happen next.
“I’m just happy that the court recognized that the Department of the Interior can’t make up the rules as it goes,” Boger said. Boger said he and other plaintiffs’ attorneys don’t yet know whether they will be able to submit evidence, or if federal officials will rely on what has been previously submitted.
The 2012 Record of Decision said documents that had been either lost or never received by the Bureau of Indian Affairs before its 2010 Record of Decision have 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.
John Bockmeier, a consultant for the La Center cardrooms, which joined in fighting the Record of Decision, was pleased with the judge’s reversal.
“Once you close the record, you can’t go back and amend it to meet your needs,” Bockmeier said. “We think this decision by the court clearly validates our claim. We see it as a total victory, and we’re delighted. We also know it’s not the end.”
Cowlitz Chairman William Iyall said Wednesday his tribe’s quest to establish a reservation “took an interesting turn” and that he and the tribe’s attorneys were still trying to sort out the ruling.
“I’m disappointed about the further delay,” Iyall said.
Boger said if a new Record of Decision gets issued, the plaintiffs could file a new lawsuit and the legal battle would go back to square one.
“Time will tell what (Wednesday’s ruling’s) legal significance is,” Boger said. “But I can tell you it’s not good for the proposed casino.”
The tribe applied in 2002 to establish a 152-acre reservation west of La Center and put a $510 million casino-hotel complex on it.
The details included 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 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.
Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.
