Asking for judgment

The motion filed in federal court July 25 by opponents of the proposed Buffalo Creek casino could very well scuttle the entire project before the Seneca Gaming Corporation finishes cleaning up the rubble it created when it demolished H-O Oats grain elevators.

The legal team representing Buffalo citizens’ groups and individuals and funded by the Margaret L. Wendt Foundation and contributions from Buffalo residents, has asked Judge William M. Skretny to issue a summary judgment in the case they filed last January. Normally, such a case would drag on through months or even years of pre-trial motions, discovery, hearings and trial, and then more time waiting for a decision.

But, the motion argues, none of that is necessary because none of the key facts is in dispute. The only question, argues the legal team, is this: Did Secretary of the Interior Gale Norton act properly when she made two key decisions involving the tract of land the Seneca Nation of Indians purchased in downtown Buffalo in 2005?

How things got this far

The proposed Buffalo Creek casino didn’t become feasible when Governor George Pataki signed the 2002 Tribal-State Gaming Compact permitting the Seneca Nation of Indians to construct gambling casinos in Niagara Falls, on the Cattaraugus Reservation and in Buffalo. Nor did it become feasible when Buffalo Mayor Anthony Masiello and his successor Byron Brown refused to insist on any of the environmental impact studies projects of this magnitude ordinarily require. (Such studies look not only at obvious things like effects on traffic patterns and air quality, but also the effects on a community’s quality of life and its economy. Little surprise that Brown, Paladino and other casino advocates would want to avoid such public research.)

The casino became feasible only when then-Secretary of the Interior Gale Norton decided that the land purchased by the Seneca Nation of Indians in downtown Buffalo was, because of the Seneca Nation Settlement Act (SNSA) of 1990, sovereign land, and that because it was sovereign land the Indian Gaming Regulation Act (IGRA) of 1988 permitted the Seneca Nation to build a gambling casino on that property.

What’s before Judge Skretny

If Norton was right, then a casino can be built in the tract of land owned by the Seneca Nation of Indians in downtown Buffalo; if she was wrong, it cannot be built.

The legal team says she got it wrong, and therefore, they say, there is no legal way a gambling casino can be presently built in downtown Buffalo. The two former Congressional sponsors of the Seneca Nation Settlement Act, John LaFalce and Amo Houghton, agree with them. Both have said that the act was never intended to permit off-reservation venues for casino gambling, and that Secretary Norton was wrong when she assumed that the provisions of the Indian Gaming Regulatory Act didn’t apply. See, for example, LaFalce’s detailed 2002 letter to Norton explaining all that (online at http://buffaloreport.com/020904lafalce.html). Norton ignored LaFalce’s letter, which is why everybody’s in court now.

The motion for summary judgment (which, along with all its supporting documents is available on the Citizens for a Better Buffalo Web site: http://betterbuffalo.com), argues that the property sold to the Senecas is not sovereign, and even if it is, it is not eligible for casino gambling under IGRA.

“The thrust of the motion,” said Buffalo attorney Joseph Finnerty, who is coordinating, on behalf of Citizens for a Better Buffalo, the lawsuits against the casino in both federal and New York state courts, “is the Secretary of the Interior erred when she concluded Congress intended under the SNSA to create sovereign ‘Indian Country’ in Buffalo and left her no choice in the matter. She compounded the error when she said the Seneca Buffalo parcels qualified for an exception from Congress’ expressed intent in the Indian Gaming Regulatory Act to prohibit gambling on off-reservation lands acquired by Native Americans after 1988. The Secretary’s determination rested on a series of assumptions. And when, as here, one’s assumptions are wrong, then the conclusions must also be wrong.”

The motion also asks Judge Skretny to declare that the Buffalo parcels purchased by the Seneca Nation of Indians are exempt only from state and local property taxes, not all state and local taxes of any kind, and that the decision of Secretary Norton and the National Indian Gaming Commission to allow casino gambling in Buffalo was done without compliance with the National Environmental Policy Act and the National Historic Preservation act.

What the judge can do

Juries, and sometimes judges, decide facts; judges decide points of law. If no material facts are in dispute, then there is no need for a jury or a bench trial; all that is necessary is for the attorneys to argue which laws apply and whether or not they have been applied appropriately, and for the judge to decide which, if either, side is right.

In this case, Judge Skretny has three choices.

If he agrees with the argument in the motion for summary judgment, the Buffalo Creek casino is illegal and all work on it must stop as soon as his decision is rendered, either because the property sold to the SNI by Carl Paladino and a few others never became sovereign land or because, even if it did become sovereign land, it does not accord with the specific conditions of IGRA controlling casinos on Indian lands.

If he disagrees with the motion he can do one of two things. He can throw out the entire complaint, which would mean the Seneca Gaming Corporation could continue with its Buffalo project (pending the outcome of the state lawsuit, of course). Or he could decide that the facts aren’t as clear as the legal team says and that the case should proceed to trial, at the end of which he will make whatever decisions he finds appropriate.

If the SGC starts building a casino while the federal case is in progress or if the City of Buffalo attempts to make irreversible changes—like moving residents out of city housing for convenience of the casino operator or destroying streets to widen access roads—there will surely be requests for injunctions by the citizens’ lawyers in both state and federal courts. These motions will ask the judges involved to put things on hold until the legal issues are resolved.

What about the Niagara Falls casino?

What are the implications of this for Niagara Falls? If a federal judge says it’s illegal here, is it illegal there? Perhaps. Why didn’t this come up when the Niagara Falls casino was going up? Because no one there ever questioned it; they were so desperate for what they thought would be economic salvation they just let it happen. It wasn’t until after Seneca Niagara was up and running that locals began to realize that instead of being a development project the casino would kill off many of the few local businesses that were left.

If Judge Skretny issues an order saying that not only is the Seneca Creek property not eligible to have a gambling casino but that the only taxes any kind of operation on it can avoid are state and local property taxes, then any hotel, restaurant, bar or shop the Seneca Nation of Indians builds there, in a casino or not, would have to pay sales, bed and other state and local taxes.

And if that happens, Niagara County and Niagara Falls officials would surely take another look at everything going on in the Seneca Niagara casino and start demanding a far higher piece of the action than they’re presently getting. The state might still be walking away with 75 percent of the slot drop and continue dictating how the local 25 percent gets spent, but the locals could demand a percentage of everything else, perhaps even the free hotel services and booze the casino provides gamblers. Niagara County could, in theory, even set up a gambling tax and Seneca Niagara would have to pay it.

What now?

Smart money might say that it is to the Seneca Gaming Corporation’s advantage to shut this possibility down now by abandoning the Buffalo plan, thereby rendering all the Buffalo lawsuits moot. But they probably won’t do that. The Buffalo money is too tempting, and thus far the SGC pattern has been to bully through everything and not compromise at all.

However the lawsuits, the injunctions and this motion for summary judgment are resolved, it is extremely likely that the loser will appeal. The citizens’ groups feel the life of the city is at stake, and the SGC doesn’t want to lose the millions of dollars it hopes to drain from Buffalo’s economy.

The one thing that’s certain is that the Buffalo casino is not—no matter what Mayor Byron Brown and the Buffalo News editorial board say—a “done deal.”

Bruce Jackson is vice president of Citizens for a Better Buffalo and editor of the web journal BuffaloReport.com. He also teaches at UB.