From Sept 14, 2020: Appeals court hears arguments in Aquinnah gaming case

 

Appeals court hears arguments in Aquinnah gaming case

By Ethan Genter 

Posted Sept 14, 2020 

BOSTON — The Wampanoag Tribe of Gay Head (Aquinnah) and the town of Aquinnah took their arguments over the tribe’s planned bingo hall to a virtual hearing with the U.S. First Circuit Appeals Court on Monday.

The tribe is trying to build the bingo hall on its land on the western end of Martha’s Vineyard under the Indian Gaming Rights Act and argues that it should not be subject to local and state zoning and building regulations. The town, which along with the state and a local taxpayers group has been locked in legal battles with the tribe for years, contends that the tribe, as determined in a lower court’s ruling, has to go through the local permitting process to build the gaming facility.

The crux of the appeal is whether the Indian Gaming Rights Act preempts state and local laws on construction, occupancy and operation of the facility. The previous judgment from U.S. District Court Judge Dennis Saylor in 2019 found that the state and town can’t impose gaming laws on the tribe, but the tribe has to comply with construction and operation regulations.

Each side had 15 minutes to make their case in front of the appeals court, though much of the time was spent answering questions from the three justices.

The tribe’s attorney, Scott David Crowell, argued that Saylor’s ruling allows the town to block the gaming facility indirectly. He told the court that the town can’t treat the tribe like any other developer in the permitting process, because no other entity on the island can build a gaming facility.

If the town is allowed to impose zoning, Crowell said, it would give the municipality the ability to lay on restriction after restriction until the project dies.

“This opinion, if allowed to stand, allows the town and the Martha’s Vineyard Commission to kill the tribe’s gaming operation with a thousand cuts,” Crowell said.

The town’s attorney, William Jay, argues that the Indian Gaming Rights Act protects the tribe’s right to a gaming facility, but doesn’t shield it from local regulations not related to the gaming aspects of the project.

Saylor did say that the town cannot indirectly block the tribe’s right to a gaming facility and could bring any such issues back to the court.

“If the question is whether generally applicable town ordinances, such as a zoning plan, can be used to prevent gaming specifically ... the district court made very clear that it wasn’t passing on any such theory,” Jay said. “That doesn’t mean neutral, generally applicable laws don’t apply and that is the concept that the tribe resists.”

That could include aesthetic, parking and environmental restrictions, he said.

Judge William Kayatta saw potential problems with that argument.

“I think you could see though that any one of those that you just mentioned — regulations — could be applied in a way with a ‘wink-wink’ that effectively precludes successful operation of a casino,” he said.

If that’s the case, the tribe could file a federal complaint, Jay said, possibly foreshadowing continued legal battles for years to come — a future that Judge O. Rogeriee Thompson saw as a possibility.

“So this could go on and on and on,” she said.

No decision was made and the issue — which has attracted several other parties including the National Congress of American Indians, United South and Eastern Tribes Sovereignty Protection Fund and the Martha’s Vineyard Commission to weigh in via amicus briefs — was taken under advisement. Construction on the facility was halted after Saylor’s order last year.

The tribe previously said that the hall would be a 10,000-square-foot gaming facility located on tribal trust land at 1 Black Brook Road. The hall would include 250 electronic gaming machines, a beer and wine bar, an outdoor seating area and a mobile food vendor area.