The National Indian Gaming Commission has issued a Notice of Violation to the Seneca Nation. The wording of the violation orders the Senecas either to shut the facility down within five days, or else pay a $25,000 daily fine pending appeal.

The Senecas issued the following statement:

“The United States is still actively considering its appeal options in the case, and the commission is still reviewing the Nation’s recently submitted gaming ordinance. Decisions on those two elements of the case are likely within the next 30 to 45 days. While legal proceedings are pending before the NIGC, the Seneca Nation will continue to operate the Buffalo Creek facility. The notice of violation has no effect on the Nation’s other gaming facilities. The Nation is pleased that this aspect of the process finally gives the Nation a direct voice in the Buffalo Creek matter for the first time.

The Seneca Nation, as always, will comply with applicable rulings, but will also exercise the full scope of its rights, administratively and judicially. We are confident that the Nation’s gaming rights will be recognized on our sovereign Buffalo Creek territory for the benefit of the Western New York economy.”

Just another day in Western New York.

The Senecas have halted construction on the Buffalo Creek Casino structure. The $300 million project is already well underway and the permanent structure was slated to open in 2010.

The Seneca Gaming Commission cites the slagging economy for leading to this decision, but some point to uncertainty with respect to the lawsuit that has been filed by certain citizens and groups seeking to shut the casino operation down altogether in Buffalo.

My only question is this. Will the casino remain on Mayor Brown’s master list of Buffalo projects that he trots out to rebut any and all negative press about the city?

I know personally that the addition of a Tim Horton’s to a B-Kwik on Seneca Street is what single-handedly convinces prospective developers that Buffalo is on the rise!

And the State, in turn, will pay the “host communities” of the Senecas’ three WNY casinos.

$57.3 million in slots revenue was sent to Albany - $2.8 million of that came from the temporary Buffalo facility. The host community for the Buffalo casino is to get over $708,000 from that. The problem is - who is the host community? Naturally, the city and county are already fighting over that issue. Sometime down the road, it’s estimated that the Buffalo facility will earn $7 million per year for the host community.

Can Brown and Collins figure out what to do with the local share without going to court? Personally, I think the city is entitled to the whole thing as the host community. In the meantime, the permanent Seneca facility is rather quickly being added to the local skyline, with about 4 stories’ worth of steel already erected.

Federal Justice William Skretny will be holding a hearing on August 21st on the issue of whether the current, temporary facility should be shut down pursuant to his July ruling. If that was to happen, one would hope that the opponents would pay a bond into court to make the Senecas whole in the event the 2nd Circuit overturns Skretny’s decision.

Robert Kresse, Trustee and Secretary of the Wendt Foundation in the Buffalo News:

Wendt’s three trustees agreed to finance the lawsuit in January 2006, and the foundation so far has funneled $1.9 million through the Network of Religious Communities, one of the plaintiffs, for legal expenses.

The trustees were unaware of the Harrah’s investment until a periodic review following their decision to fund the suit, said trustee Robert J. Kresse.

Investment advisers Groesbeck Investment Management, based in New Jersey, determined the investment choices. The trustees decided to sell because the holdings were “inconsistent” with their position on gambling in the City of Buffalo, Kresse said.

The Wendt Foundation’s 2005 form 990, signed by Trustee & Secretary Robert Kresse lists and itemizes the Harrah’s investment.

The Wendt Foundation’s 2004 form 990, signed by Trustee & Secretary Robert Kresse, lists and itemizes the Harrah’s investment.

The Wendt Foundation’s 2003 Form 990, signed by Trustee & Secretary Robert Kresse, lists and itemizes the Harrah’s investment.

That “periodic review” took place every year ’round tax time. Just so we’re clear.

Mike Hudson, commenter and agent provocateur on this site, writes up the Wendt Foundation imbroglio over at his paper. Thanks to Mike for the kind words.

I was scrolling today through the Citizens for a Better Buffalo website - which hasn’t been updated since 2007 - and found at the very bottom of a loooooong scroll this entry:

Jackson to Paladino: “What’s your interest?”
8/17/2006

In an astounding exchange of e-mails, Professor Bruce Jackson asks developer Carl Paladino why he promotes the Casino so heavily. He does not get an answer to his question. Indeed, the style of Paladino’s response suggests that he surely has something to hide. Citizen for a Better Buffalo, YOU decide. To read this apalling exchange, click here. - Ed

Here is the .pdf of Jackson’s Artvoice piece detailing his email correspondence with Carl Paladino.

Now, when Jackson attacked me, he accused me of being part of a conspiracy to “Swiftboat” the holy, sainted Wendt Foundation. Unlike with Paladino, Jackson did not put fingers to keyboard to ask me about it. That’s shoddy “journalism”, even from a prestigious SUNY Professor who earns $150,000. I have emailed Jackson a total of three times since this whole thing blew up and he has not deigned to respond to me. Typical, as Jackson doesn’t have to answer for anything he says or writes.

Note that Jackson asks Paladino:

I’m trying to figure out why you keep pushing the casino so aggressively

As he has since done with me, Jackson starts off with the assumption that anyone who in some way defends the casino or criticizes its opponents has some personal or financial interest in it. Jackson’s motives, of course, are pure and sweet and taste of honey and roses. Right?

I’m not saying Jackson has any ulterior motive, but what’s good for the goose is good for the gander. He is quick to attack those who do not share his views, yet is slow to admit his own interest in the casino battle. So, if it’s appropriate for Paladino, it’s appropriate to ask the question of Bruce Jackson (here, since he won’t respond to my emails):

I’m trying to figure out why you keep pushing casino opposition so aggressively. I’m also trying to figure out where the money goes.

Question: Does my inquiry into the spending of Wendt Foundation money somehow magically make me a supporter of the Seneca’s Buffalo Creek Casino?

Answer: Of course not.

Here is my record on the issue of the Seneca Casino.

Here is what I wrote earlier this month concerning my current indifference to the Seneca Casino in light of Skretny’s ruling:

I have to say that my thinking on the casino downtown has morphed from ignorance to opposition to indifference … So, I’m now indifferent. If it’s blocked, great. If it goes up, great. Either way, my day won’t change. But if I’m leaning in any one direction, I’d say build the damn thing already. Build it nice, build it big, and build it in such a way so as to maximize pedestrian entry and egress from the property. By cooperating with the Senecas, we can help make it a project that is integrated into its surroundings, rather than an island surrounded by a sea of useless parking.

Hardly a ringing endorsement, wouldn’t you say?

Here is what I wrote in my original “swiftboating” post about the Wendt Foundation:

The Wendt Foundation paid $2 million to fund the legal fees for the casino half-sorta-victory last week. Two million dollars. That’s a lot of scratch, and frankly I had thought that the lawyers had donated their time towards this effort. I’m taken aback that there was an expenditure for this….

…Imagine if $2 million had gone towards an actual charitable cause that actually helps the underprivileged. Although I agree wholeheartedly with the notion that a sovereign exclave should not be carved out of Buffalo’s downtown to facilitate gambling that can’t be subject to state or local taxes, I don’t care about the morality of this, and I don’t care whether it’s a “good” or “bad” deal for the city any more than I care whether the heavily subsidized, money-losing Hyatt is a “good” or “bad” deal.

But this interview between Bruce Jackson and Joel Rose pretty much underscores the fact that the whole “sovereignty” issue is a technicality that stands in the place of “we know so much better than you”. And they got $2 mill from a local charity to pay legal fees rather than an actual charitable effort.

Oh, well.

You see, for me the sovereignty and exclave was what I was most opposed to, because I thought it was a cynical work-around the state constitution.

Casino opponents? They equate criticism and questions about Wendt with casino support. My 2 year old comes up with less facile conclusions than that. Their reaction has taken many forms, but all of them have one central underlying theme, which can be summarized as:

STFU! How dare you question the Wendt Foundation?

I will tell you one thing. Through all of this, I’ve lost a great deal of respect for casino opponents and their George Bushian “not with us, you’re against us” mentality.

With apologies to Mad Magazine and Al Jaffee.

Seriously, though - what “price” are casino foes paying for “telling the truth”? That people disagree with them? That their funding is being scrutinized?

The litany of negatives that go along with a casino development in Buffalo are often weighed against the positives, and the ultimate balance is somewhat subjective. Even Esmonde acknowledges some positives from a casino project. But what’s often repeated by opponents is how the money will be taken out of the community. Really?

Aren’t the Senecas part of the “community”? Don’t they spend their money in the same places as you or I? Aren’t they Western New Yorkers just as much as Stan from Lancaster or Johnny from Niagara Falls? Haven’t the Senecas been just as economically downtrodden as any other minority?

The Senecas and their defenders don’t promote the casino as being the savior of Buffalo, so opponents’ arguments to the contrary are beside the point.

There are myriad businesses in existence in this community that are probably a net drain on society and the economy. This may just be another added to the list. So?

One of my biggest problems with the whole Seneca casino deal is that there was no public input. I’d much prefer that the state constitution is amended to permit legal, tightly regulated, taxed class III gaming in New York State. At the end of the day, however, we elected the politicians who cut this deal with the Senecas. No one elected its opponents.

The opponents of the casino applied to Judge Skretny to force the casino to be shut down, in the wake of his ruling earlier this month.

You’ll recall that the ruling found that the casino property was sovereign “Indian land”, but that the National Indian Gaming Commission had acted arbitrarily and capriciously in approving class III gaming on the site.

Well, if the NIGC acted arbitrarily and capriciously, it would make some sense to remand the case back to NIGC for a re-evaluation of its 2007 decision on gaming, no?

The case seems to revolve around one major issue — whether the federal judiciary or the executive branch should be the ultimate arbiter in this case.

“A remand to the NIGC is the only constitutionally appropriate option available in these circumstances,” stated Laurence H. Tribe, a Harvard Law School professor serving as chief legal consultant for the Seneca Nation.

It is the executive branch, not the federal judiciary, that is empowered to execute the laws, Tribe added. That includes exercising the law-enforcement discretion that Congress delegated to such executive agencies.

This is made more critical due to a recent (July 16th) re-application the Senecas made for gaming permission, and a new rule that is to be in effect in late August. The government’s papers are here. The Senecas’ proposed amicus brief is here.

They’re arguing that the regulations that Judge Skretny ruled on are about to change, and that the whole case should be sent back to the executive branch for re-evaluation under the new regs.

Which will attract more visitors to Buffalo?

“Bifocal intellectuals” looking at architecture and our “sense of place”?

or

The Buffalo Creek Casino?

While Donn Esmonde goes off on a sarcastic rant about how great it is that the casino is (he says) not going to open, I have to say that my thinking on the casino downtown has morphed from ignorance to opposition to indifference. (As my dad’s joke goes, Q: What’s the difference between ignorance and indifference? A: I don’t know, and I don’t care.)

Does anyone think for a second that the Seneca casino won’t stay open or that the current hotel project is going to be halted? I strongly doubt it, because the Senecas will counter the request for an injunction by arguing that they opened their temporary casino and began constructing their property in good faith based on the government’s approval, and that it is they who would be irreperably harmed by a shut-down - not the casino opponents. In the meantime, the Senecas can go about an alternate procedure to ensure that the land can be used for gaming.

Although the Citizens for a Better Buffalo and CACGEC will continue to fight and oppose this casino project, and although the Margaret Wendt foundation will continue to fund the legal battle, I no longer care.

The casino won’t be a silver bullet for the city. It isn’t a great deal that Pataki negotiated for the city. It will engender even more litigation between the county and the city, who will compete for “host community” status under the compact. The casino won’t pay property taxes or income taxes to the state. It’s a crappy deal.

One of many.

Look at Niagara Falls. People like to point out that the area surrounding the casino is just as full of fail as it was before the casino came in. That’s true. But it should come as no surprise, since Niagara Falls has more than its share of fail. But at worst, it’s the status quo.

People don’t leave casino grounds to go for a walk around the neighborhood? What neighborhood? Where are they supposed to go? The dilapidated, crumbling, in-breach-of-contract Rainbow Centre acts as a physical and psychological barrier blocking pedestrian access from the Casino to the Falls state park. And what’s past there? After dark, not much. A balloon ride? Some street vendors? A gift shop? A crappy Hard Rock Cafe? At least the old, leaky convention center got fixed up and is used on a daily basis.

Will people leave the Buffalo Creek Casino? If there’s stuff to do, they will. Canal Side will be mere blocks away. It will feature hotels, restaurants, shopping, a boardwalk, etc. The Sabres play at HSBC Arena. A casino won’t solve a lot of problems, but it adds one more thing to do downtown. It adds a world-class hotel to add to options limited right now by a shitty, subsidized Hyatt and an Adams Mark that looks like it was airlifted from Cold War-era Soviet apartment blocks. (More concrete, Sasha!)

What’s done is done. The casino will undoubtedly be completed. The Senecas will make loads of money. People will come from near and far to check it out. The city will make money off the slot revenue. So will the state.

And so will the food distributors who employ people and pay taxes. So will the liquor and beer distributors who employ people and pay taxes. So will the people who live locally and work at the casino and pay taxes. So will the suppliers and construction workers and furniture wholesalers who will all make money off of this project. So will the architects and landscapers.

So, I’m now indifferent. If it’s blocked, great. If it goes up, great. Either way, my day won’t change. But if I’m leaning in any one direction, I’d say build the damn thing already. Build it nice, build it big, and build it in such a way so as to maximize pedestrian entry and egress from the property. By cooperating with the Senecas, we can help make it a project that is integrated into its surroundings, rather than an island surrounded by a sea of useless parking.

In the wake of Judge Skretny’s ruling, which is most notable for its excruciating length, Casino opponents, are batting .500. Although the court decided that the approval of casino gaming at that site was due to an arbitrary and capricious decision by the Indian Gaming Commission, the casino continues to operate. The opponents will go to court today to demand an order shutting it down.

The Senecas are being quite clever with respect to Judge Skretny’s Monday ruling that the Senecas could not legally operate Class III gaming on Michigan Avenue.

They’re going to keep it open, and keep building the new casino, until the matter has been “finally resolved”, which means that it’s been decided by the Supreme Court, or by the 2nd Circuit and the Supreme Court declines to hear the case.

Since the Senecas aren’t a party to the lawsuit that led to Skretny’s ruling, they aren’t immediately required to do anything about it. Either the Justice Department or some other federal law enforcement branch will order the Senecas to shut down, or else someone will go to court and seek an injunction. To do that, they’d have to prove that there is an imminent threat of irreversible harm for which money damages would be inadequate. I don’t think the casino meets those criteria. After all, if the final decision of the courts is that the casino is illegal and must shut down, then all the Senecas have to do is lock the doors; the “harm” is reversible.

Personally, I do not at all like the idea of sovereign Seneca exclaves being carved out of urban property so that Class III gaming might take place there in contravention of the New York State Constitution. I would much rather that State law be changed to permit legal gambling under specific circumstances and regulations, which would keep the property on the tax rolls. I would much rather that the people of Buffalo and Niagara Falls and Salamanca at least had a direct hand in approving or disapproving casino gaming in their cities via referendum. I would much rather that the deal with the Senecas had been made directly between the Nation and the municipalities, so that the money received by the host community could have been maximized beyond the current fraction of a fraction of slot revenues that Pataki negotiated.

But Skretny’s decision is that the exclave-carving was perfectly legal and remains in place. So, my opinion on that issue is worthless, pending appeal. Assuming that the exclave is maintained, and assuming that the Senecas go back to the drawing board pending appeal and are able to finagle a way to maintain the Buffalo casino (which I fully expect them to do), then I hope they build something glorious that will help transform the Cobblestone and Canal Side areas into fantastic tourism destinations.

I want that Casino to encourage - not discourage - pedestrian traffic to and from the building so that it’s less of a fortress and becomes part of the fabric of that area.

The Fallsview Casino in Niagara Falls is an example of a casino project that is integrated into its surroundings, offering a park overlooking the Falls, shopping, improved pedestrian access, and parking that is ample yet unobtrusive.

The Buffalo News:

A federal judge today ruled against the Seneca Nation’s Buffalo Creek Casino, saying that casino gambling cannot legally take place on the nine-acre site on Michigan Avenue.

U.S. District Judge William M. Skretny, in a 127-page decision, vacated the earlier decision by the commissioner of the National Indian Gaming Commission to allow gambling.

It was not immediately clear whether Skretny’s ruling will halt construction on the $333 million permanent casino, but it is clear that the temporary casino no longer has the legal right to operate.

Skretny ruled that the parcel is indeed Indian country.

“However, the court finds that the (National Indian Gaming Commission’s) July 2, 2007, determination that the Buffalo parcel is gaming-eligible … is arbitrary, capricious and not in accordance with the law.”

The ruling itself is available here. Naturally, the Senecas will be taking this to the 2nd Circuit Court of Appeals. But casino gambling is illegal on Michigan Avenue in Buffalo right now.

UPDATE:

Also from the article,

The question answered in today’s ruling is whether the land on Michigan Avenue, bought by the Senecas in 2005, is legally considered sovereign Seneca territory. The lawsuit claimed the Senecas can only operate a casino on land considered sovereign.

The land was purchased with funds from the 1990 Seneca Nation Land Claims Settlement Act, which settled the question of longterm leases in the city of Salamanca.

The Senecas said the settlement act gave them the right to expand their territory. John J. LaFalce, who co-wrote the legislation while a congressman, said the act never was intended to legitimize gambling casinos off the reservation.

While the Senecas are not a party to the federal lawsuit — Citizens for a Better Buffalo is pitted against the U.S. Justice Department — they filed motions as a friend of the court. The Senecas argue that treaties, federal law, state law and past court rulings say the federal agency was correct in saying the casino could operate there…

“While there is no dispute that the Senecas own the land,” Murray said in response to John, “mere possession of title does not give them the right to violate the laws of the state unless they can prove that the land is no longer subject to the jurisdiction of the state of New York.”

“Sovereignity and title are not the same thing,” Murray argued. “There are compelling legal arguments that Congress never intended to carve out a parcel of property in the heart of a major American city and designate it as “Indian land.”

This is all quite fascinating, and I naturally haven’t had a chance to read 120+ pages of this thing, but I wonder if the case now goes back to the Gaming Commission to re-evaluate its earlier decision.

The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action . . . . Normally, an agency [action] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Here, the Court found that the Indian Gaming Commission’s declaration that the Buffalo property was “Indian country” was proper.

The Senecas claimed that they were entitled to operate a Casino on the property because the money they used to buy the parcel came from the settlement of Salamanca land claims. But the court found that it wasn’t a valid land claim because it arose out of leases, not ownership.

When the SNSA was enacted, the SNI did not possess an enforceable claim against the United States relating to its 99-year leases. Because no claim existed, no claim was settled.

The Gaming Commission had ruled:

In approving the SNI’s Ordinance, NIGC Chairman Hogen first noted that Section 20 of the IGRA, 25 U.S.C. § 2719, generally prohibits gaming on lands acquired in trust after October 17, 1988, and went on to conclude that the Buffalo Parcel (acquired in 2005) is not gaming-eligible land unless it meets one of the statutory exceptions to the prohibition. AR00012.

Hogen then determined that the Buffalo Parcel satisfies the IGRA’s “settlement of a land claim exception.” AR00012-13. He expressly relied on the opinion given by the Secretary in her November 12, 2002 letter to the SNI. AR00012. The entirety of the Secretary’s analysis relative to the “settlement of a land claim” exception is as follows:

The legislative history to the Settlement Act [SNSA] makes clear that one of its purposes was to settle some of the Nation’s land claim issues. Thus, the Nation’s parcels to be acquired pursuant to the Compact and the Settlement Act will be exempt from the prohibition on gaming contained in Section 20
because they are lands acquired as part of the settlement of a land claim, and thus, fall within the exception in 25 U.S.C. § 2719(b)(1)(B)(I).

What will the 2nd Circuit do? A couple of years’ time will tell.