Casino Update	Stop Stalling, Says The Judge by Bruce Jackson

Skretny says it's time for action

(Editor’s note: Just as this edition went to press, the Seneca Gaming Corporation announced it was suspending construction on its downtown Buffalo casino and its hotel in Salamanca. The SGC cited the poor economy and hard times for the gambling industry. Gambling continues in the blue metal slots parlor.)

Sometimes the lawsuit brought by a group of citizens and citizens’ organizations to block the Senecas’ downtown Buffalo casino seems like a soap opera: You think the plot is actually getting somewhere but then you realize it’s just going around one more time, and may very well continue doing so until all the current players have been worn out and replaced.

And other times it is like one of those inexorable processes slowly moving toward an inevitable conclusion, a process that is maddening because you think you know where it has to wind up yet the rules won’t let you just go there. You must go step by step by step by step.

In the most recent development, US District Court Judge William M. Skretny followed up on his July 8 ruling that the casino operated in downtown Buffalo by the Seneca Nation of Indians had been improperly authorized by the National Indian Gaming Commission (NIGC) with an order to NIGC to do what it is supposed to do when a tribe of Indians is operating a casino improperly or illegally. He hasn’t told them what to do other than that: Get off your duffs and obey the law.

The law seems to prescribe two courses of action in such situations: a fine or shutting the operation down temporarily (“temporarily” in a legal case like this can stretch into forever if conditions are right). Since the basis of the judge’s order is his July 8 ruling that the Buffalo casino is illegal, a fine isn’t a rational option, since that would merely let the Senecas pay a fee for continuing an operation that would still be illegal. They would immediately have to pay another, and another, and another. They might be willing to do that, but the courts wouldn’t stand for that kind of foolishness. That leaves NIGC only one course of action: shutting it down.

The judge’s ruling is perhaps like telling a traveler, “Go down this road and when you reach the end of it you can turn left or right. Your choice.” The traveler gets there and finds a road on the left, but on the right there is only a loop that keeps bringing him back to exactly the same intersection. He can take the loop, but he’s not moving anywhere. NIGC can administer a fine, but that won’t be changing anything.

The judge set no timeline for this action but he did say NIGC should act “forthwith,” which in the world of the courts means “Do it now.” Even so, it is likely that the Senecas will continue operating their blue slot machine shed and constructing what they hope will be their full-bore casino and hotel/entertainment complex while the legal process continues. If the past is any predictor of the future, it is also likely that NIGC will continue to drag its feet and act as if it doesn’t quite get the point the judge has spelled out with great clarity in his two opinions.

If that happens, the plaintiffs will probably be back in court asking the judge to light a fire under them, at which point he might issue another order, this one with a performance date in it. And if they don’t perform by that date? Then the judge is empowered to hold the defendants in the case—Philip N. Hogen (in his official capacity as chairman of NIGC), NIGC itself, the US Department of the Interior, and Dirk Kempthorne (in his official capacity as the secretary of the interior)—in contempt of court.

Kempthorne and Hogen may both be thinking that, unless McCain wins, they’ve only got a few months to go in Washington, so they might as well do nothing because by the time this comes up again in Judge Skretny’s court someone else may be in their jobs to take the heat and deal with this mess. And they may be right. That won’t change anything other than the proper nouns on the next court order.

What the plaintiffs wanted and what they got

The plaintiffs had asked Judge Skretny to direct NIGC to shut the Buffalo casino down permanently and, if they didn’t do that, to have the US marshals go in and do it. I don’t know anybody who ever thought there was a chance the judge would order that kind of urban warfare. Movie directors do things like that; US district court judges in lawsuits generally opt for far less melodramatic devices of persuasion.

The law, the opinion indicated, didn’t give the judge that option anyway. When there is evidence that something illegal is going on in connection with an Indian casino, the NIGC is obligated to do something about it. In a case like this, its options are specific. The judge spelled out those options and told NIGC to exercise its authority. That may wind up at the same place, but the judge was being careful to couch his order in terms of the law creating and controlling Indian casinos. He knows perfectly well that this case is not going to end when he issues his final opinion and order in it. Everything he is writing has a double audience: right now the two sides in the case, and down the road the appellate court or courts to which the losing party in his court will almost certainly turn.

That is why (I assume) he not only limited his ruling to a very narrow area—other than telling NIGC it had to obey the law and spelling out which laws it had to obey, he left the specific course of action, inevitable as it might be, up to NIGC itself—but he rejected each of the defendants’ motions with great attention to legal detail. Other federal judges in the Buffalo district point out that Judge Skretny picks very good law clerks and he uses them well; he doesn’t like being reversed and rarely is.

I think that also gives greater weight to what might otherwise seem simply a slap on the wrist to the plaintiffs in a footnote on page 8: “Plaintiffs filed a passionate and lengthy response to Defendants’ motion [to remand],” he wrote. “Unfortunately, that well-written response, in large part, lacks relevant law directed to the arguments raised and authority advanced by the Defendants. As such, it is of limited value on the precise questions before the Court.”

On one level, that paragraph says exactly what it seems to say: If the plaintiffs think a lazy legal brief that relies on passion, good writing, and length is going to sway him, they’re wrong. Unless all of that is undergirded by a solid body of black-letter and case law, it’s just a bunch of lawyers’ words, pieces of paper that are just this side of useless.

But the judge’s comment also serves notice that the plaintiffs’ argument did not form part of his thinking when he found the defendants’ response and motion without value. He relied on his own knowledge of the law and of cases to reach his conclusion. If the defendants are going to appeal his August 26 decision, they will have a difficult time using inadequacies in the plaintiffs’ argument to confuse the issue. The chastising footnote at the bottom of page 8 basically takes that argument off the table.

How long is “temporary”?

Judge Skretny rejected the plaintiffs’ request that NIGC be directed to issue a permanent closure order. The punishment part of the law specifies only temporary closure, and the plaintiffs themselves acknowledged that if there is a legal determination of gambling eligibility then gambling could occur on the land.

That would require a full environmental (and economic) impact study, a process that takes years, one that former Buffalo Mayor Anthony Masiello, current Mayor Byron Brown, and the Senecas have all been anxious to avoid. All three have made exorbitant claims about the economic benefits that would accrue to Buffalo if a casino were in operation downtown; in their press conferences this week, Seneca spokesmen have upped the number of new jobs they claim the casino would bring from 1,000 to 1,500. None of them has wanted a public examination of the real costs to the city of such an operation.

The proposed casino would take out of the city far more money than it contributes in either direct payments (the city’s small cut of the slot machine action) or in payroll and local spending. All studies elsewhere indicate that the casino jobs would come at the cost of far more local jobs, many of them better paying. In other cities where proposed casinos have had to undergo this kind of sunshine process, the results have varied. Some cities have decided they could live with the casino, others have decided that the numbers told a story they couldn’t accept. The Buffalo situation is less favorable for gambling interests than those other cities because they were all ordinary, commercial casinos, paying all state and local taxes and subject to all state and local laws; an Indian casino in the heart of a city would pay no taxes and be subject to very few state and local laws.

Little wonder that the two mayors and the Seneca Gaming Corporation have struggled to avoid such scrutiny. In all likelihood, this issue will be decided on the basis of the current situation, in the courts and not through a long-term environmental impact process.

The orthopedic mode of legal argument

Ordinary arguments build. One point adds to another and those add to another and when you think you’ve put forward enough of them, you utter a sentence that begins with “Therefore,” or something like it, and sit back with your arms folded and wait to see if your partner or the jury buys what you’re selling.

That kind of argument requires that the individual points add up to a totality that is convincing; all the parts have to support one another and that conclusion. If you argue with points that are mutually exclusive, then you’re almost certain to lose: Your partner won’t buy it and the jury won’t convict. The best-known example of the latter in recent years is perhaps the O.J. Simpson felony trial, which collapsed in large part because a glove the prosecutor said Simpson wore when he was committing two murders didn’t fit. Simpson stood in front of the jury with the glove that wouldn’t go over his hand, turning the hand with the ill-fitting glove this way and that, and looking at the jury with an expression that seemed to say, “See what foolishness this case is based on?” Later, in summation, his attorney said again and again, like a mantra, “If it doesn’t fit, you must acquit.” And so the jury did.

But in the legal world of motions, arguments aren’t cumulative. An attorney can put totally contradictory arguments out there, every one of which exists in a legal universe that excludes the others, and the judge or group of appellate judges can reject all in every regard but accept one and the lawyer may get the desired result anyway.

In this phase of the casino case, Justice Department attorneys argued that Judge Skretny had no jurisdiction in the case, that the law had empowered NIGC to decide these matters and the courts couldn’t come in and tell its three members how to do their job. The Justice Department also argued that a change in the way Bureau of Indian Affairs (BIA) interpreted the Indian Gaming Regulatory Act changed the way the pieces of this case fit together, so the judge should take back his July 8 decision and allow NIGC to start afresh.

In one of those arguments, the Justice Department was saying the judge had no business here in the first place. In the other it said that the judge had every right to be here but should step aside because things had changed and he had the power to set the clocks back to their starting point.

In ordinary discussion someone presented with a pair of arguments like that might say, “First you tell me I have no business here and then you tell me how I should conduct myself while doing business here? Come back when you’ve got your act together.”

But this is more like setting a broken bone than an ordinary argument, or even a jury trial. Doctors setting broken bones like to get them as close to where they were before the break as possible, but only sometimes can they push the two pieces together like the broken arm of a chair ready to be glued. Often there are chips that must be cleared away, and often the break happens in a way so that the pieces can’t be lined up perfectly. No matter: As long as any section of one part of the break is touching any section of the other part of the break, the bone will heal. New bone will grow around that spot and later it will be as if the bone were a single piece, but with a curious bump in the place where the break occurred.

No way, anyway

The judge rejected entirely the defendants’ argument that the chairman of NIGC had the discretion whether or not to act in a case like this and that the court could not force the chairman to act. The law, the judge wrote, “provides that the NIGC shall issue a complaint whenever it has reason to believe a tribal gaming facility is operating in violation of the IGRA. This language is mandatory, it connotes immediacy, and it is entirely consistent with Congress’s charge to the NIGC to safeguard the integrity of Indian gaming. Congress directs the NIGC to act upon any indication of the existence of a violation; it does not give the Commission discretion to ignore violations or choose not to issue a complaint.”

The defendants also argued that the judge was limited to making his decision in terms of “the law relied on by the agency. If the administrative record does not contain all of the law the Court believes is relevant, Defendants contend that the Court should not decide the matter, but should remand the case.”

That is to say, if an agency acts in utter disregard or ignorance of the law, a court reviewing its actions should not be allowed to bring into consideration the very laws that the agency ignored in the first place. That gives error and incompetence priority over the rule of law and the legitimacy of informed judicial opinion. The judge, of course, rejected this line of reasoning as “nonsensical.”

The judge saw no point in sending this back to NIGC. “Indeed, to require the NIGC to provide additional analysis or explanation in support of a determination that the Court has concluded is arbitrary, capricious and contrary to a century’s worth of settled law and agency policy would be the height of futility.”

The judge wasn’t moved by the new rules, either. They came into effect August 25, which is perhaps why he scheduled this order for August 26: to be sure his opinion included them and argued their irrelevance and to forestall another round from the defendants arguing, “Yes, but…”

The defendants, he noted, were aware of these new rules while the case was in progress but chose not to tell the court about them. “Defendants’ absolute silence in this regard appears to suggest a belief that the onus was on the Court to scour the Federal Register on a daily basis to discern whether the DOI, the BIA, the NIGC, or any other federal agency had taken any administrative action that might impact this case. An alternative explanation, of course, is that Defendants simply made what they believed was a sound strategic decision not to disclose this development.”

In a footnote, he observes, “The NIGC is deafeningly silent as to its knowledge of the BIA publication. However, in light of the relationship between the DOI, the BIA, and the NIGC, generally and in this case, it is difficult to imagine that the NIGC was not also aware of the BIA’s progress on and publication of a final rule.”

Since the defendants knew the rule was pending and would come into effect, yet chose not to tell the judge about it, they can’t now use that rule to undo his ruling. “Defendants apparently chose to stay the course and then alter their legal position only if faced with an adverse outcome…Defendants had more than sufficient opportunity to alert the Court to the final rule and request appropriate relief during the pendency of CACGESII. The failure to do so, without explanation, does not warrant post-judgment relief.”

The defendants also argued that a remand would save the court money. “The Court does not agree. Had Defendants requested a stay or remand during the pendency of CACGEC II, that argument may have carried some appeal. Waiting until CACGEC II was decided, however, ensured the maximum expenditure of party and Court resources in the case.”

Maybe we should move on from the orthopedic metaphor to one from politics: “You can’t put enough lipstick on that pig.” No matter how many and how varied the arguments, the defendants’ lawyers couldn’t convince this judge that the NIGC was beyond the law.

Where things are, where they’re going

So the judge gave the plaintiffs some of what they wanted and rejected all of the gambits proposed by the gambling interests’ lawyers. He didn’t refer at all to the several amicus briefs filed by the attorneys for the Seneca Nation of Indians. They were longer than the defendants’ briefs but he decided, apparently, they were peripheral to the issues at hand and he chose not to make them part of his record.

The next move is up to NIGC. It can call the Buffalo casino illegal and shut it down, or it can continue doing nothing. If it does that, the judge can hold it in contempt. Its lawyers—the US Justice Department—will probably appeal both the July 8 and August 26 rulings. The Senecas will continue operating their blue slot machine shed and working on what they hope will be their much larger gambling/hotel/entertainment complex.

The defendants may even hope to drag this on long enough to get the doors of that place opened and all the jobs filled so they can argue, “But how can you put 1,000 or 1,500 or however many good people out of work in a town that has hemorrhaged jobs over the past several decades?” Since they had plenty of forewarning that a shutdown order might be in the works before they plugged in their first slot machine, that probably won’t convince anybody in the Second Circuit in New York City or the Supreme Court, where this sorry, greedy, ill-conceived affair is almost certainly headed.

This is the 48th in a series of articles about attempts to establish gambling operations in northwestern New York that Bruce Jackson has written for Artvoice and other publications since June 2001. From 2006 to July 2007, he was vice president of Citizens for Better Buffalo. He is SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at UB. With Diane Christian, he directs the weekly Buffalo Film Seminars at the Market Arcade Theater.