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Suing the Governor: A Conversation with Attorney Robert Knoer
by Bruce Jackson
The Senecas want to build a gambling casino in downtown Buffalo.
New York Governor George Pataki wants them to do it because they’ve promised to send Albany a lot of money if they get it built. The building trades unions want them to do it because the union is so hungry for jobs now it is willing to sacrifice far more future jobs that a downtown casino will surely cost. A few local developers want them to do it because they hope to make money on the buying and selling of bordering properties. And Buffalo Mayor Byron Brown and former Mayor Anthony Masiello want it for reasons neither has ever been able to explain rationally.
Other than them, hardly anybody wants the casino. People who live in the area don’t want it. Owners and operators of Buffalo restaurants, stores, bars, theaters, clubs, charitable organizations and arts agencies—all of whom will suffer if a large portion of the region’s discretionary income goes into the black hole of a casino—don’t want it. Nobody from industry, the arts, education, the clergy or the press is standing up and saying, “Hey, this is a great idea.”
Nonetheless, state and federal public officials have looked the other way as the project has careened along, not requiring the developers to follow any of the laws designed to protect citizens from projects that have the capacity to radically alter the character of their communities. All those laws require environmental impact studies; all of them require citizen input and consultation. None of that has happened.
Citizens for a Better Buffalo, representing a large number of Buffalo individuals and groups, has filed a petition in state court asking a judge to force Governor George Pataki, Buffalo Mayor Byron Brown and all the other officials and agencies involved to start obeying the law in regard to the proposed Seneca Nation downtown Buffalo casino. Thus far, the petition says, those officials and agencies have consistently avoided safeguards designed to protect the public provided by New York’s State Environmental Quality Review Act; Parks, Recreation, Historic Preservation Law; Freedom of Information Law; and Buffalo’s City Environmental Review Ordinance.
Citizens for a Better Buffalo filed another suit in federal court on January 3, that one focusing on similar violations by federal agencies and officials. (The full texts of both lawsuits and summaries of the principal points are available on the Citizens for a Better Buffalo website: http://betterbuffalo.com).
Unlike casino operators, who have a lot of cash, ordinary citizens rarely have enough money to underwrite legal actions designed to force government officials to behave properly. Initial funding for these two Buffalo legal actions was provided by the Margaret L. Wendt Foundation; it has been supplemented by contributions from numerous Buffalo individuals and organizations. Both legal actions are being coordinated for Citizens for a Better Buffalo by attorney Joseph M. Finnerty (Stenger & Finnerty). The other members of the legal team are Robert E. Knoer and Brendan R. Mehaffy (Knoer, Crawford & Bender), Richard Lippes and Richard C. Berger (Richard Lippes and Associates), Michael Jackson and Rachel Jackson (Jackson & Jackson), and Karim A. Abdulla and Greg S. Maxwell (Stenger & Finnerty).
The papers in the state court action were filed on January 31. This conversation with Robert Knoer, who was lead counsel for that action, took place a few days earlier.
Let’s talk about the state suit.
I think it’s important to talk about what it’s not. A lot of people want to say that it’s about opposing casinos, it’s about saving old buildings. To me, the state suit is not about opposing casinos or saving old buildings as much as it’s about making sure we all have the right to give our opinion on saving old buildings or opposing casinos.
The process to this point has been purposely secret, and it has purposely tried to keep the public out. I find that to be wrong on a lot of levels. I think anybody that cares about this city, whether you’re on the side of casino developers or anti-casino or for or against saving grain elevators, should be upset that we are being asked to just accept a project that was conceived in Albany by Albany for Albany, which has skirted the New York State constitution, which has skirted New York State law that requires open public process for such an important development.
So I want people to understand what we’re asking for in this state suit. We’re asking a judge to do nothing more than say, “The state has to back up and give the public the information as to what the impacts of this proposed development might be and let the public comment on those impacts. And then the state can move forward and make whatever decision the state and its agencies feel at that time is appropriate.” That’s what we’re asking for.
Obviously the petitioners in this case are, for the most part, very passionately opposed to a casino in their backyard. These are people that live in that neighborhood. These are people who have kids in that neighborhood or relatives who have kids in that neighborhood who see this project every day, who understand personally and directly the impact crime might have, the increasing traffic, the loss of what otherwise has been architecturally pleasing buildings. These are direct impacts.
It’s easy for somebody sitting in Hamburg or Amherst or somewhere to say, “They gotta do something, they gotta do something.” But when it came time to put this casino in Cheektowaga, the opposition was organized, backed by money, and was a constituency that was in a much higher income bracket statistically, if you look at the census tract, than where they’re trying to put it now. Those people had the ability to oppose, luckily for them, and they opposed and they were successful. And the court in that instance said, “You have to do an environmental review.” Well, that’s pretty much what we’re asking. We’re asking the court to do the same thing here. These people in this neighborhood should be treated no differently than the people in Cheektowaga who opposed the other casino.
Why are you bringing a second lawsuit? Why not just one lawsuit?
The federal lawsuit deals with whether or not the real estate, the property, was properly taken into a certain status, what we call “restricted fee,” by the federal government on behalf of the Seneca Nation. It’s a process by which the Seneca Nation has the ability to buy property and then ask the federal government to declare that property special. That property is not just owned by the Senecas but it is imbued with all of the sovereign rights, or some of the sovereign rights, that the Senecas have.
The federal suit is looking at whether that process was done properly. We are watching eagerly the federal suit, but we are not contesting in this lawsuit whether or not that property had been transferred correctly and whether or not the restricted fee status was correctly imposed on the property.
Let’s assume for purposes of our suit that it is. The Senecas, they can do what they wish and we wish them good luck. They have every right to try and better themselves and I don’t oppose that. But we have a right to expect our government to follow its laws and to say, as the State Environmental Quality Review Act requires, “Here’s the project, here’s the possible impacts, here’s the mitigation to avoid those impacts. What do you think, people?” That’s what the law says, in plain English.
They didn’t do it. The governor negotiated a compact with the Senecas that specifically relied on the Seneca Settlement Act, and that was for one purpose, in my mind: to avoid public scrutiny. Because there’s a fast-track in the Seneca Settlement Act that allows the Senecas, even under this federal procedure, to take property more quickly into a restricted fee or title. It was from the beginning designed to avoid public impact. That to me is the strongest and most important reason why people should be in support of this litigation.
But Amo Houghton and John LaFalce, the author and cosponsor of the Settlement Act, say that’s not what the Act was about.
It definitely wasn’t. It never was. That’s part of what’s being challenged in the federal court. It’s interesting because the authors have come out publicly and said, “This is not what we meant.” And the Secretary of the Interior, Gale Norton, I think understood that she was going to be what you might call stepping in it, and so the action she took was no action. She didn’t really approve or not approve, as far as we know.
This brings up another point that goes to the idea that this is being done in secret. My clients have requested, through our counsel, documents, simple documents, from the city of Buffalo, from the governor’s office, asking “What happened here?” Asking, “Just give us the letters that you sent back and forth between you and the Nation on how you picked this project. What did you say to the Secretary of the Interior about this project?”
Because there was the ability for Mayor Masiello, who was still in office at that time, to comment on whether it’s a good or bad thing for the community. That is part of even the Settlement Act process. And they haven’t given us anything. That’s part of our suit as well. We want the documents. We want them to give up what have to be readily available, important documents that we don’t have.
So many government agencies working so hard to violate the law. Does this go on all the time?
Unfortunately for Buffalo it is historic. I think it’s a large part of why we are, relative to other cities our size in the same or similar circumstances—Rust Belt, call it what you may—why Buffalo always seems to lag behind when there’s a recovery. I think there’s a mentality we have here of “Oh well, it’s a done deal,” or “Oh well, we can’t do anything about it. Oh well, let’s try to get the best we can.” The Peace Bridge is a perfect example of that.
There is a lot of benefit to a casino. But the question is, to whom?
I ask the Seneca representatives presenting public forums up in the Falls, “Let me assume for a minute that there are benefits. Can you tell me what empirical studies, or even anecdotal information, you have to back up the statements you’re making about the spinoff business and it’s going to help the community?” And they don’t. They’ll tell you all the money that they’re investing in the casino, and that’s great, that certainly brings in temporary construction jobs. And they’ll tell you about the jobs that they’re going to have, and you can’t argue with the fact that there’s going to be people working in these casinos. But they don’t say whether it’s going to have negative or positive overall impact in the end. And they don’t have any evidence one way or the other.
In my environmental legal studies we talk about mismatched scales. The concept of mismatched scales is, if I’ve got a power-producing plant in Ohio, producing power and benefit to that plant, but it is also producing pollution that’s blowing to New York, then the residents of New York are getting the brunt of it while the power plant in Ohio is getting the benefit. That’s a mismatched scale. You can have the same thing over time. We’re doing things today that are going to impair future generations. There’s a mismatched scale. We’re getting the benefit, they’re getting the burden.
That’s exactly what’s happening here. Albany is getting the benefit. Albany is getting the lion’s share of the money that’s coming out of this, but very little of the burden. It’s very much a mismatched scale.
And Buffalo just accepts those things. We have tried to speak with and will try to speak with the city officials, to explain to them, “You have leverage. Don’t say, ‘There’s nothing we can do here.’ Don’t say, ‘It’s out of our hands and we’re trying to get the best deal.’ Stand up for us. You have leverage. Use it.”
I’m a strong believer that Buffalo is in a very good position going forward. I truly believe it. I have clients that do work in the city of Buffalo, I keep an eye on properties in the city of Buffalo, and I really do think that there’s a lot of good things happening in the city of Buffalo. Unfortunately, politicians get so desperate for ribbon-cuttings that they’re willing to take on projects and to back projects and to force projects through because of their sheer size, without taking a moment to sit back and say, “What does this mean to me and my constituents? What does it mean to the city?”
In the Peace Bridge case, we would say to the Public Bridge Authority, “We know what the problems are, we know what the burdens are”—getting back to mismatched scales—“We’ve got air pollution, we’ve got truck traffic, we’ve got this, we’ve got that. Tell us what the benefits are. Tell us what we’re benefitting from an entity that doesn’t pay taxes”—it does payments in lieu of taxes, minimal things—“Tell us what the benefits are.” They would repeatedly recite statistics about how much money and goods were crossing back and forth on the border. And my pat response was, “Living next to Fort Knox doesn’t make me rich. Don’t tell me what’s crossing your bridge. Tell me what’s going to benefit me.”
It’s the same thing with the casino. People need to stand up and say, “Look, thinking people are not just going to accept the fact that it’s big and it’s expensive as proof that it’s somehow beneficial. There’s a lot more involved.”
One of the complaints I hear from people opposed to this action is, “It’s been three years since the governor signed that compact. How come this lawsuit is just happening now? Why didn’t you come out before?”
There’s a very good answer to that. From a legal perspective, in order to go to court you have to have what we call “standing.” Standing, in essence, is the right to stand before the judge and bring a complaint. For instance, if you get in a car accident, I can’t go sue. You have standing in the suit because you’ve been injured; I can’t sue just because I happened to be around.
In this instance, when the compact was originally signed, there was no way of knowing who was going to be damaged by this action, so there was no way of knowing who had standing. If they want to put a casino out in Cheektowaga you couldn’t oppose that because of its environmental impact. Because you live in Buffalo, so you’re not being impacted by it. So until the Senecas determined, finally, where they were going to propose this site to be, there was no way to bring a petition. We didn’t know what the harm would be, or to whom.
This site came essentially out of the blue. They talked about the Adams Mark, the Convention Center, the Statler Towers, and on and on. Until it was announced on October 3rd, to my knowledge, nobody knew this site was in the running.
So we couldn’t bring this suit until we had that information. Once we had that information we started to get other documentation together—the request I indicated we made to the government. You don’t want to bring a legal proceeding without having the facts. You want to make sure you have documents and you’re sure of your case. So we needed to try to gather those facts as best we could. And we’ve done that.
That’s why we had to wait until now.
Who are the plaintiffs and who are the defendants?
There are a number of plaintiffs who are residents of the area. We have a couple of people that live in the Perry Homes Senior Center who can see the site from their homes. We have a couple of people that live in the Ellicott Lofts, the new development there, who are right across the street. We have a pastor who does outreach ministry in the Perry complex. These are all people that know on a day-to-day basis and will see in the future on a day-to-day basis the impact of this.
It’s “respondents” not “defendants”?
Yes. This is a little bit different kind of legal proceeding. The federal suit is a complaint/answer situation, where you file a complaint, you have an answer, you have discovery; it’s a whole elongated legal process. The state suit is not a suit per se; it’s a petition. It is a petition brought under Article 78 of the Civil Practice Law and Rules. Article 78 is the expression of checks and balances. Article 78 is when you go to a judge and say, “Judge, we think the executive or legislative branch of government has not done what they’re supposed to do or has done something they’re not supposed to do. Please take a look at this.”
It’s a very express-type of a process. In fact, when we serve our papers, they will contain the date that we’re going to be in front of that judge. Now those dates change, but it is meant to be what we call “a summary process”—a process where you get to court and a judge looks at it quickly and moves on.
So the respondents, as opposed to defendants, are the governor; both past and present mayors; the Common Council, which has approval authority in some of these things; the Buffalo Sewer Authority, which is an independent authority under public law, which also will be required to assist the Senecas with infrastructure; and the NFTA, which, as I said before, is a state agency governed by SEQR and the Historic Preservation Law. We want to be sure the NFTA is going to follow those laws, so we want the court to direct NFTA now to take that action, to follow the law.
What possible outcomes are there?
There’s a whole myriad of possible outcomes if you look at the federal and state suits.
The federal suit could actually reverse time. If the transfer of land into the Nation and then into restricted fee status was improper—again, I leave that to the litigants in the federal suit—that turns everything around because now you’re stepping back to where maybe the city will step up and say, “Wait a minute” to the federal government—which they have a right to do as the host community—say, “Wait a minute. We don’t know if this is a good idea.”
We’re attacking the compact as being inappropriate without environmental review, because it clearly was going to site a casino somewhere, and so the sheer immensity of such a project would require more likely than not a full environmental impact statement. One of the biggest outcomes for us would be for the court to declare that the compact itself was inappropriate, that the governor is subject to SEQR, which the previous suit in Cheektowaga determined he was. The governor is subject to SEQR, the governor didn’t do it, SEQR says any action taken by an official in violation of SEQR should be voided, and back it up. Bring us back to the point where maybe we can have a discussion.
To me, the ultimate discussion would be for the people of New York to be given a referendum on casino gambling: Do you want to change your constitution? As opposed to: Do you want your governor single-handedly to broker a deal with moneyed people to bring gambling to New York in violation of the constitution?
For our suit, the more practical implications are that the court will stop further efforts. And by “further efforts” I mean there are resolutions in the Common Council of Buffalo right now seeking assistance—the Senecas are seeking assistance from the city of Buffalo. They need easements. They need to tap into the water supply and sewers, they need improvements to infrastructure. You look at the streets surrounding this proposed complex, there’s no way that you can have the type of traffic that they’re talking about unless you improve the infrastructure.
We don’t want any of that to happen. We don’t want any of that to go forward. We don’t want the mentality of “It’s too late, there’s nothing we can do” to continue to pervade city hall. We want them to stop and take a look.
The bottom line is, we’re asking the judge to direct the city and government officials to stop assisting in the development of the casino complex until the law is followed. We’re asking to reverse some actions that have been taken. And probably from our standpoint, the most important thing we’re asking for is a direction to the NFTA that they cannot proceed with the consideration of the transfer of the DL&W building until they comply with these laws. Because that’s something that hasn’t happened yet. There’s been a lot of public statements that that’s what’s going on. We want to get in there before it’s too late.
We’re asking for a number of things and the judge could grant some and deny some. A judge could say essentially, to all of the respondents, “You acted improperly, and those of you who have already taken action, go back and undo it.” That causes some problems, obviously, because the Senecas are not bound by New York State law and are not required to respond to us if we were to sue them. They would probably say, “You have no authority over us.” So what we want the court to say to the NFTA is, “Stop. Do this before you go forward.” We want the court to say to the city of Buffalo, “Stop. Do not consider these right of ways or easements or anything else until such time as you have followed the law.” We want the court to say to the governor and to the state gaming officials, “Stop. The compact has been improperly instituted because you didn’t follow the proper environmental procedures and historic procedures.”
It really bothers me when government entities say, “We’re above the law.” And that’s what’s happened. “We’re above the constitution. We’re going to have gambling in New York. Forget the constitution.” That’s what the governor said. “We’re above environmental review.” That’s what the governor and the state gaming officials said. “We don’t have to tell you what we’re doing.” That’s what the city and the state have said essentially so far in regards to our document requests.
That’s bothersome. And it should bother everybody. No matter what your position is on this particular question.
Bruce Jackson is SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at UB. He edits the web journal BuffaloReport.com and is a member of the Citizens for a Better Buffalo steering committee. For more of his articles on the Buffalo casino, as well as links to other reports and documents, visit http://buffaloreport.com/casinochronicles.html .
Issue Navigation> Issue Index > v5n5: Suing the Governor (2/2/06) > Suing the Governor: A Conversation with Attorney Robert Knoer
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