The Cowlitz Tribe might be ineligible to get the trust land it needs to develop its proposed mega-casino and resort, due to a U.S. Supreme Court ruling released today.
The ruling, Carcieri v. Salazar, limits the federal government’s authority to hold land in trust for tribes that received federal recognition after 1934, when the Indian Reorganization Act was passed. The Cowlitz Tribe received recognition in 2002.
It appears Congressional action might be required to sort out the legal quagmire this creates for any number of tribes, including the Cowlitz Tribe.
Read “Supreme Court ruling raises questions about Cowlitz casino” in The Columbian.
Tuesday, February 24, 2009
Thursday, February 19, 2009
Let's clear up county's MOU confusion
Clark County remains mired in confusion over the impact a new memorandum of understanding (MOU) with the Cowlitz Tribe would have on the tribe’s casino application.
The U.S. Department of the Interior (DOI)—the agency that will make the final decision—has, however, sent out clear signals that can be summed up, “If you don’t want a casino, don’t produce an MOU.”
First, a key DOI decision maker, George Skibine, told CARS after the tribe’s MOU was invalidated in December 2007, that the lack of a valid MOU with Clark County could be “a deal-breaker” for the Cowlitz casino application. (Skibine remains in his role at DOI as a career employee, not a political appointee.)
Then, in January 2008, DOI sent out a guidance letter addressing the importance of intergovernmental agreements, such as MOUs. The letter states, “Failure to achieve such agreements should weigh heavily against the approval of the application.”
When CARS Chairman Ed Lynch addressed the commissioners Tuesday, he urged them not to work with the tribe on a new MOU. He said it could send DOI the message that the county is open to the casino. In 2008 the county went on record opposing the casino.
Commissioner Boldt questioned Lynch’s connecting a new MOU with casino approval. He asked Lynch about the outcomes of two casino applications in other states, one that had no MOU but was approved and one that had an MOU but was turned down.
Comparing those two applications with the Cowlitz project is utterly unhelpful. Those applications were completely different, and other circumstances outweighed the impact of their MOU status. For details, read CARS’ response to the commissioners, below.
Please tell your commissioners to say “no deal” to a new MOU with the Cowlitz Tribe.
Clark County Board of Commissioners: (360) 397-2232
Marc.Boldt@clark.wa.gov
Tom.Mielke@clark.wa.gov
Steve.Stuart@clark.wa.gov
boardcom@clark.wa.gov
The U.S. Department of the Interior (DOI)—the agency that will make the final decision—has, however, sent out clear signals that can be summed up, “If you don’t want a casino, don’t produce an MOU.”
First, a key DOI decision maker, George Skibine, told CARS after the tribe’s MOU was invalidated in December 2007, that the lack of a valid MOU with Clark County could be “a deal-breaker” for the Cowlitz casino application. (Skibine remains in his role at DOI as a career employee, not a political appointee.)
Then, in January 2008, DOI sent out a guidance letter addressing the importance of intergovernmental agreements, such as MOUs. The letter states, “Failure to achieve such agreements should weigh heavily against the approval of the application.”
When CARS Chairman Ed Lynch addressed the commissioners Tuesday, he urged them not to work with the tribe on a new MOU. He said it could send DOI the message that the county is open to the casino. In 2008 the county went on record opposing the casino.
Commissioner Boldt questioned Lynch’s connecting a new MOU with casino approval. He asked Lynch about the outcomes of two casino applications in other states, one that had no MOU but was approved and one that had an MOU but was turned down.
Comparing those two applications with the Cowlitz project is utterly unhelpful. Those applications were completely different, and other circumstances outweighed the impact of their MOU status. For details, read CARS’ response to the commissioners, below.
Please tell your commissioners to say “no deal” to a new MOU with the Cowlitz Tribe.
Clark County Board of Commissioners: (360) 397-2232
Marc.Boldt@clark.wa.gov
Tom.Mielke@clark.wa.gov
Steve.Stuart@clark.wa.gov
boardcom@clark.wa.gov
Letter regarding the MOU's significance
CARS Chairman Ed Lynch sent this letter to the Clark County commissioners after addressing them Feb. 17.
Dear Commissioners:
At your meeting this morning, Commissioner Boldt asked how CARS can maintain that a memorandum of understanding (MOU) is integral to the Cowlitz application when the outcomes of two other unrelated applications seem to indicate otherwise.
He referenced the Mechoopda Tribe of Butte County, Calif. (a case with which Commissioner Stuart is familiar due to relatives living there), which had its casino and trust land request approved in 2008 despite its lack of MOU, and the Menominee Tribe of Wisconsin (with its partner the Mohegan Tribe), which had its request denied despite an MOU with Kenosha County and the city of Kenosha, Wis.
Clearly, an MOU by itself is no guarantee of anything. No one has ever claimed that the U.S. Department of the Interior’s (DOI) process of making trust land and casino decisions is an exact science.
However, as you know, Mr. George Skibine of the U.S. Department of the Interior told CARS in December 2007 that the Cowlitz Tribe’s lack of a valid MOU with Clark County could be “a deal-breaker” for this casino application.
Missing the point
Using the outcome of these other applications as rationale for negotiating a new MOU for Clark County entirely misses Mr. Skibine’s point. In his conversation with CARS, Mr. Skibine did not say that an MOU was required for every project. CARS asked him specifically about the Cowlitz proposal for Clark County—a proposal that involves a questionable restored lands opinion, a poorly constructed Environmental Impact Statement and pending lawsuits. What Mr. Skibine said of the absence of an MOU was, “that could potentially be a deal breaker for them, yes.”
In January 2008, the DOI sent out a guidance letter addressing the importance of intergovernmental agreements. The letter states, “Failure to achieve such agreements should weigh heavily against the approval of the application.”[1]
Perhaps in the Mechoopda Tribe’s case the absence of other deficiencies enabled DOI to overlook its lack of MOU. For example, Butte County had stated its opposition to the Mechoopda project due to its location but also said the county was “committed to working with the Mechoopda Tribe on finding an acceptable location for a project.” [2] Also, there were no organized opposition groups there.
In the Menominee Tribe’s situation, however, the presence of an MOU was not enough to overcome other factors. DOI determined that the 170 miles between the tribe’s reservation and its off-reservation proposed casino site was not a commutable distance and would not assist in fostering a strong tribal community. Additionally, it found the tribe had not shown there was insufficient land on its reservation to “develop economic enterprises in order to address its unmet needs.”[3]
There had been concerns as well about the a partner in the project, Dennis Troha, who was charged by the federal government for willfully making false statements to FBI agents and illegally funneling more than $100,000 in political campaign contributions through others in an attempt to obtain government approvals for the proposed casino. (He pleaded guilty to lesser charges after cooperating with authorities.) The federal investigation into corruption related to the project has led so far to the convictions of four individuals, including one elected official. The investigation is ongoing.
Comparing apples and watermelons
As for the Mechoopda situation, comparing it with the Cowlitz casino application is like comparing apples and watermelons. Here are some of the differences:
Mechoopda Tribe
Casino size: 43,000 square feet casino building[4]
NEPA track: Environmental Assessment
Tribe membership: 425[6]
Members near casino site: 71 percent in Butte County[8]
Cowlitz Tribe
Casino size: 1,183,635 square feet casino-resort plus 20,000-square-foot office building, 12,000-square-foot cultural center[5]
NEPA track: EIS (used for projects with anticipated significant impacts)
Tribe membership: 3,500[7]
Members near casino site: 3 percent in Clark County [9]
In our situation, Clark County and the cities of Vancouver, La Center and Woodland have all signed resolutions of opposition to the proposed Cowlitz casino. Several citizen groups specifically oppose the casino, and many other groups have declared their opposition.[10]
Given the vast differences among these three casino proposals, the tribes and the local climates, it is not useful to use comparisons between the proposed Cowlitz project and the Mechoopda and Menominee projects to inform Clark County’s MOU strategy.
I appreciate the complexity of the decisions you have ahead.
Sincerely,
Ed Lynch
[1] Carl Artman, DOI Assistant Secretary. Letter to Regional Directors, Bureau of Indian Affairs. 3 January 2008. http://www.indianz.com/docs/bia/artman010308.pdf.
[2] “Butte County Pursues Litigation.” 25 March 2008.http://www.becnettripod.org/sitebuildercontent/sitebuilderfiles/25march08.pdf. 19 February 2009.
[3] Skibine, George, DOI Acting Deputy Assistant Secretary. Letter to Lisa Waukau, Chairwoman of the Menominee Indian Tribe. 7 January 2009. http://www.indianz.com/docs/bia/skibine010709.pdf. 17 February 2009.
[4] Tuchinsky, Evan, “Mechoopda unveil casino designs,” Chico News & Review, 18 May 2006. http://www.newsreview.com/chico/Content?oid=57110. 19 February 2009.
[5] Analytical Environmental Services, Final Environmental Impact Statement Cowlitz Indian Tribe Trust Acquisition and Casino Project. May 2008. 2-10.
[6] Tuchinsky.
[7] Russell, R. Letter to Mr. Stanley Speaks, Area Director of the BIA. 1 August 2006. In Whelan, Robert, "An Initial Review of the Cowlitz Final Environmental Impact Statement." 17 April 2007.
[8] Tuchinsky.
[9] Russell.
[10] See http://www.nothereplease.org/doing/againstCasino.pdf.
Dear Commissioners:
At your meeting this morning, Commissioner Boldt asked how CARS can maintain that a memorandum of understanding (MOU) is integral to the Cowlitz application when the outcomes of two other unrelated applications seem to indicate otherwise.
He referenced the Mechoopda Tribe of Butte County, Calif. (a case with which Commissioner Stuart is familiar due to relatives living there), which had its casino and trust land request approved in 2008 despite its lack of MOU, and the Menominee Tribe of Wisconsin (with its partner the Mohegan Tribe), which had its request denied despite an MOU with Kenosha County and the city of Kenosha, Wis.
Clearly, an MOU by itself is no guarantee of anything. No one has ever claimed that the U.S. Department of the Interior’s (DOI) process of making trust land and casino decisions is an exact science.
However, as you know, Mr. George Skibine of the U.S. Department of the Interior told CARS in December 2007 that the Cowlitz Tribe’s lack of a valid MOU with Clark County could be “a deal-breaker” for this casino application.
Missing the point
Using the outcome of these other applications as rationale for negotiating a new MOU for Clark County entirely misses Mr. Skibine’s point. In his conversation with CARS, Mr. Skibine did not say that an MOU was required for every project. CARS asked him specifically about the Cowlitz proposal for Clark County—a proposal that involves a questionable restored lands opinion, a poorly constructed Environmental Impact Statement and pending lawsuits. What Mr. Skibine said of the absence of an MOU was, “that could potentially be a deal breaker for them, yes.”
In January 2008, the DOI sent out a guidance letter addressing the importance of intergovernmental agreements. The letter states, “Failure to achieve such agreements should weigh heavily against the approval of the application.”[1]
Perhaps in the Mechoopda Tribe’s case the absence of other deficiencies enabled DOI to overlook its lack of MOU. For example, Butte County had stated its opposition to the Mechoopda project due to its location but also said the county was “committed to working with the Mechoopda Tribe on finding an acceptable location for a project.” [2] Also, there were no organized opposition groups there.
In the Menominee Tribe’s situation, however, the presence of an MOU was not enough to overcome other factors. DOI determined that the 170 miles between the tribe’s reservation and its off-reservation proposed casino site was not a commutable distance and would not assist in fostering a strong tribal community. Additionally, it found the tribe had not shown there was insufficient land on its reservation to “develop economic enterprises in order to address its unmet needs.”[3]
There had been concerns as well about the a partner in the project, Dennis Troha, who was charged by the federal government for willfully making false statements to FBI agents and illegally funneling more than $100,000 in political campaign contributions through others in an attempt to obtain government approvals for the proposed casino. (He pleaded guilty to lesser charges after cooperating with authorities.) The federal investigation into corruption related to the project has led so far to the convictions of four individuals, including one elected official. The investigation is ongoing.
Comparing apples and watermelons
As for the Mechoopda situation, comparing it with the Cowlitz casino application is like comparing apples and watermelons. Here are some of the differences:
Mechoopda Tribe
Casino size: 43,000 square feet casino building[4]
NEPA track: Environmental Assessment
Tribe membership: 425[6]
Members near casino site: 71 percent in Butte County[8]
Cowlitz Tribe
Casino size: 1,183,635 square feet casino-resort plus 20,000-square-foot office building, 12,000-square-foot cultural center[5]
NEPA track: EIS (used for projects with anticipated significant impacts)
Tribe membership: 3,500[7]
Members near casino site: 3 percent in Clark County [9]
In our situation, Clark County and the cities of Vancouver, La Center and Woodland have all signed resolutions of opposition to the proposed Cowlitz casino. Several citizen groups specifically oppose the casino, and many other groups have declared their opposition.[10]
Given the vast differences among these three casino proposals, the tribes and the local climates, it is not useful to use comparisons between the proposed Cowlitz project and the Mechoopda and Menominee projects to inform Clark County’s MOU strategy.
I appreciate the complexity of the decisions you have ahead.
Sincerely,
Ed Lynch
[1] Carl Artman, DOI Assistant Secretary. Letter to Regional Directors, Bureau of Indian Affairs. 3 January 2008. http://www.indianz.com/docs/bia/artman010308.pdf.
[2] “Butte County Pursues Litigation.” 25 March 2008.
[3] Skibine, George, DOI Acting Deputy Assistant Secretary. Letter to Lisa Waukau, Chairwoman of the Menominee Indian Tribe. 7 January 2009. http://www.indianz.com/docs/bia/skibine010709.pdf. 17 February 2009.
[4] Tuchinsky, Evan, “Mechoopda unveil casino designs,” Chico News & Review, 18 May 2006. http://www.newsreview.com/chico/Content?oid=57110. 19 February 2009.
[5] Analytical Environmental Services, Final Environmental Impact Statement Cowlitz Indian Tribe Trust Acquisition and Casino Project. May 2008. 2-10.
[6] Tuchinsky.
[7] Russell, R. Letter to Mr. Stanley Speaks, Area Director of the BIA. 1 August 2006. In Whelan, Robert, "An Initial Review of the Cowlitz Final Environmental Impact Statement." 17 April 2007.
[8] Tuchinsky.
[9] Russell.
[10] See http://www.nothereplease.org/doing/againstCasino.pdf.
Tuesday, February 17, 2009
CARS chairman urges county: No new MOU
CARS chairman Ed Lynch thanked the Clark County commissioners this morning for their recent decision to abandon the county’s ill-fated 2004 memorandum of understanding with the Cowlitz Tribe. He also urged the commissioners not to negotiate a new agreement. His comments follow:
I’m Ed Lynch, here today representing Citizens Against Reservation Shopping. On behalf of our organization, I want to thank you for your decision to return to compliance by abandoning Clark County’s court appeal and with it the 2004 Memorandum of Understanding with the Cowlitz Tribe.
I’m here today, too, to ask that you leave that trouble-plagued document behind and not negotiate another. It’s hard to understand that you would, since this Board opposes a casino. As you know, BIA’s senior gaming official, George Skibine, told CARS directly last year that having no MOU attached to the Cowlitz application would likely be a “deal breaker” for the casino.
And why not? With the County, La Center, City of Vancouver, Woodland, along with others on record as opposing the Casino, there is no way that the federal government would proceed. Add to that, the tribe’s complete failure after three years to show any Cowlitz geographical, historical or cultural presence of significance below Kelso and the developers will be looking for a new home where they belong in Lewis County or northern Cowlitz County.
You can make the casino go away. If you are leaders, LEAD. If you should sign an agreement it will serve as a signal to the BIA of the county’s willingness to work with the developers to site a casino. Don’t do it unless you truly desire a casino in Clark County.
Although many area agencies were harshly critical of the Cowlitz Final Environmental Impact Statement, no local government was more direct in its condemnation of the Cowlitz FEIS than Clark County. Yet the Cowlitz Tribe’s response to the county’s concerns was to ignore them and pretend they didn’t exist. After the thousands of staff hours the county expended on the EIS, surely you wouldn’t negotiate another MOU without first getting tribal developers to seriously address the environmental and socio-economic issues the county’s experts raised time and again without recognition. Take as one example, the I-5 traffic problem. How can you negotiate on a new MOU without an independent, thorough, statistical analysis of traffic across the bridge; and the impact of a casino on that traffic, by a well regarded traffic consultant?
In April of last year, this board conducted three hearings around the county to elicit ideas for another MOU. More than 100 citizens turned out to speak—more than 70 percent of those speaking delivered two distinct messages to the county: They didn’t want an MOU, and they didn’t want a casino.
Gentlemen, I hope to God that we, the opposition to the scam, will prevail, and I believe we will. But, I also pray that you will actively join us and do your part to secure, maintain and advance our collective communities’ superior standard of living.
I’m Ed Lynch, here today representing Citizens Against Reservation Shopping. On behalf of our organization, I want to thank you for your decision to return to compliance by abandoning Clark County’s court appeal and with it the 2004 Memorandum of Understanding with the Cowlitz Tribe.
I’m here today, too, to ask that you leave that trouble-plagued document behind and not negotiate another. It’s hard to understand that you would, since this Board opposes a casino. As you know, BIA’s senior gaming official, George Skibine, told CARS directly last year that having no MOU attached to the Cowlitz application would likely be a “deal breaker” for the casino.
And why not? With the County, La Center, City of Vancouver, Woodland, along with others on record as opposing the Casino, there is no way that the federal government would proceed. Add to that, the tribe’s complete failure after three years to show any Cowlitz geographical, historical or cultural presence of significance below Kelso and the developers will be looking for a new home where they belong in Lewis County or northern Cowlitz County.
You can make the casino go away. If you are leaders, LEAD. If you should sign an agreement it will serve as a signal to the BIA of the county’s willingness to work with the developers to site a casino. Don’t do it unless you truly desire a casino in Clark County.
Although many area agencies were harshly critical of the Cowlitz Final Environmental Impact Statement, no local government was more direct in its condemnation of the Cowlitz FEIS than Clark County. Yet the Cowlitz Tribe’s response to the county’s concerns was to ignore them and pretend they didn’t exist. After the thousands of staff hours the county expended on the EIS, surely you wouldn’t negotiate another MOU without first getting tribal developers to seriously address the environmental and socio-economic issues the county’s experts raised time and again without recognition. Take as one example, the I-5 traffic problem. How can you negotiate on a new MOU without an independent, thorough, statistical analysis of traffic across the bridge; and the impact of a casino on that traffic, by a well regarded traffic consultant?
In April of last year, this board conducted three hearings around the county to elicit ideas for another MOU. More than 100 citizens turned out to speak—more than 70 percent of those speaking delivered two distinct messages to the county: They didn’t want an MOU, and they didn’t want a casino.
Gentlemen, I hope to God that we, the opposition to the scam, will prevail, and I believe we will. But, I also pray that you will actively join us and do your part to secure, maintain and advance our collective communities’ superior standard of living.
Thursday, February 5, 2009
Ding-dong! The MOU is dead!
Clark County’s commissioners have finally let go of the county’s 2004 memorandum of understanding (MOU) with the Cowlitz Tribe.
The MOU was invalidated in 2007, but the county had appealed that ruling. On Wednesday the board voted unanimously to drop its appeal, which commissioners said they had pursued because they disagreed with the state’s involvement in the matter.
The county-tribe MOU was an abysmal document developed before the tribe’s developers had defined the nature of their project. The county was spooked into signing it prematurely, and the result is a document that would never come close to mitigating the problems a mega-casino would bring to Southwest Washington.
The good news is this: A high-level federal decision-maker told CARS that the absence of an MOU could be a deal breaker for the Cowlitz project, and the Department of the Interior has affirmed in a guidance memorandum that it looks for valid intergovernmental agreements in casino applications. (Dropping the appeal also frees the county to apply for low-interest state loans for public works, but that’s another story.)
The bad news is this: For many months the county has been in quiet negotiations with the tribe for a new MOU.
CARS is very concerned that a new MOU could send the message that public support for the proposed casino is growing. We discourage the county from further negotiations.
However, if the county, which passed a resolution against the casino in 2008, insists on pursuing a new MOU, CARS has a few stipulations to suggest:
The MOU was invalidated in 2007, but the county had appealed that ruling. On Wednesday the board voted unanimously to drop its appeal, which commissioners said they had pursued because they disagreed with the state’s involvement in the matter.
The county-tribe MOU was an abysmal document developed before the tribe’s developers had defined the nature of their project. The county was spooked into signing it prematurely, and the result is a document that would never come close to mitigating the problems a mega-casino would bring to Southwest Washington.
The good news is this: A high-level federal decision-maker told CARS that the absence of an MOU could be a deal breaker for the Cowlitz project, and the Department of the Interior has affirmed in a guidance memorandum that it looks for valid intergovernmental agreements in casino applications. (Dropping the appeal also frees the county to apply for low-interest state loans for public works, but that’s another story.)
The bad news is this: For many months the county has been in quiet negotiations with the tribe for a new MOU.
CARS is very concerned that a new MOU could send the message that public support for the proposed casino is growing. We discourage the county from further negotiations.
However, if the county, which passed a resolution against the casino in 2008, insists on pursuing a new MOU, CARS has a few stipulations to suggest:
- Any adjoining land the tribe or casino developers might purchase in addition to the 152 acres they currently seek for reservation and casino development must be subject to the terms of the new MOU.
- The tribe should guarantee that any payments it promises in lieu of property taxes (because if taken into trust, the land would be removed from the tax rolls) would be in lieu of taxes on the developed land.
- The tribe’s contribution to problem gambling assistance should be increased significantly from the $50,000 (enough maybe to fund one extra counselor) it offered in the 2004 MOU.
While we’re on the topic of problem gambling, here are a few additional terms (with thanks to the Muskogee Phoenix) for the commissioners to consider:
- The casino should be required to post the odds of winning on each machine.
- A notice should flash on the screen of the machines periodically telling players how long they have been playing and how much money they have lost.
- The casino should not be allowed to have an ATM machine or to cash checks.
- The casino should be required to send monthly statements detailing wins and losses to its players.
Make no mistake. This MOU is essential to the casino proposal, and the Cowlitz casino developers are the ones who need it the most.
Contact your commissioners. Congratulate them for killing the MOU—and encourage them to keep it dead.
Clark County Board of Commissioners: (360) 397-2232
Marc.Boldt@clark.wa.gov
Tom.Mielke@clark.wa.gov
Steve.Stuart@clark.wa.gov
boardcom@clark.wa.gov
Read today's Columbian story, "County drops defense of 2004 casino deal."
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