Proposed Cowlitz casino receives legal setback

03.18.2013 Ron Karten Gaming, Federal government

A proposed Cowlitz Tribal casino within 15 miles of the Portland metropolitan area received a significant legal setback on Wednesday, March 13, when U.S. District Court Judge Barbara Jacobs Rothstein ordered the Department of the Interior to issue a new Record of Decision regarding its granting of a Cowlitz reservation near La Center, Wash.

In her 12-page decision, Rothstein said that the Department of the Interior violated the Administrative Procedure Act by unilaterally changing a Record of Decision after lawsuits had been filed.

In December 2010, the department issued a Record of Decision to acquire land in trust for the Cowlitz Tribe. Lawsuits were filed on Jan. 31 and Feb. 1, 2011, asserting the department's decision violated the Indian Reorganization Act because the Cowlitz Tribe was not federally recognized or under federal jurisdiction in 1934. (Rothstein did not rule on this underlying issue.)

In March 2012, Clark County contacted the department's counsel regarding documents that were missing from the administrative record that questioned the Cowlitz Tribe's historical connection to the La Center area.

In October 2012, the Bureau of Indian Affairs filed a supplemental Record of Decision, which "replaced and superseded" the 2010 Record of Decision, but did not change the ruling.

"The federal defendants cannot 'incorporate' a 2012 explanation into the 2010 ROD by characterizing it as a 'supplemental record of decision,' " Rothstein wrote.

With Rothstein ruling that the federal government should not have issued the supplemental Record of Decision, it left the 2010 Record of Decision, which had been superseded, to defend.

"The court will not waste its or the parties' resources on such a fruitless endeavor," she wrote in her ruling.

Rothstein ordered the Department of the Interior, which includes the Bureau of Indian Affairs, to rescind its 2010 decision and issue a new Record of Decision within 60 days. She dismissed the current case as "moot."

"As we argued and the judge agreed, the government cannot continually rewrite its analysis during the course of litigation to address plaintiffs' arguments," Grand Ronde Tribal Attorney Rob Greene said. "They cannot paper over flaws in reasoning after the fact, after the public record is closed."

"The order of Judge Rothstein is a victory for our Tribe and our members," said Grand Ronde Tribal Chairman Reyn Leno. "From the beginning, we've opposed Cowlitz's attempt to build a casino in Clark County, outside Cowlitz's historic homelands. Our staff and council have been diligent and have dedicated countless hours to this effort and for that we're extremely grateful. Without their hard work and determination, we may not have had such a positive outcome."

The landless Cowlitz Tribe applied in 2002 to establish a 152-acre reservation west of La Center and build a $510 million casino-hotel complex on it. The development would include 3,000 slot machines, 135 gaming tables, 20 poker tables and a 250-room hotel, in addition to a RV park, 10 restaurants and retail shops.

The 2010 Bureau of Indian Affairs Record of 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 card rooms; Citizens Against Reservation Shopping; and the Confederated Tribes of Grand Ronde.

"Judge Rothstein found that the Department of the Interior did not comply with the procedural aspects of the law," said Grand Ronde Public Affairs Director Siobhan Taylor. "We've opposed this all along because it is a blatant attempt to put an off-reservation casino on Portland's doorstep. The Cowlitz Tribe is trying to put a casino in an area that is not within their ceded lands. We support the Cowlitz Tribe building in Cowlitz County on the Cowlitz River - further north where they belong."

Taylor said the Grand Ronde Tribe, which includes southwestern Washington among its ancestral usual and accustomed areas, will remain "vigilant" as the case proceeds.

"These decisions should not be taken lightly and casinos built outside a Tribe's historic lands, infringing on the historic lands of another Tribe have the potential to adversely affect Native American Tribes throughout Indian Country," Leno said. "We have and will continue to support Tribes wanting to provide for their membership through projects in their historic lands. While the fight is far from over, we applaud Judge Rothstein's order."

Includes material from The Columbian.