PHOENIX — A federal judge on Thursday refused to immediately order state gaming officials to give the go-ahead for the Tohono O’odham Nation to operate a full-scale casino on the edge of Glendale.
Judge David Campbell said the tribe did not present enough evidence to prove state Gaming Director Daniel Bergin is acting illegally in saying he does not intend to provide the necessary certifications for the facility. The judge said that leaves him unable to conclude, at least at this point, that the tribe ultimately will win the legal battle, one of the tests for getting an injunction allowing the operation.
Campbell also pointed out that tribal officials say the casino will open on schedule in December no matter what the outcome of the lawsuit.
The only difference is that the more than 1,000 gaming machines, while they look like slot machines, actually will be playing a form of instant electronic bingo. And even attorneys for the state admit that is beyond Bergin’s authority to stop or even regulate.
Campbell said the tribe probably will be making close to as much money from this Class II operation as it would from a full-blown Class III casino complete with real slot machines. And injunctions require some proof of irreparable harm.
Thursday’s ruling is at least a temporary setback for the tribe, which eventually hopes to offer full-scale gaming, including poker and blackjack, on the site near the Arizona Cardinals stadium. But tribal Chairman Edward Manuel said officials “remain confident that the court will ultimately rule in our favor.”
It’s also an unusual loss for the O’odham: Campbell has previously rejected arguments by the state and other tribes that the terms of the 2002 voter-approved compact giving tribes the exclusive right to operate casinos precludes the O’odham from putting a facility there.
That shift did not go unnoticed by Stephen Roe Lewis, president of the Gila River Indian Community.
“For years, the (Tohono O’odham) Nation has claimed that their position is invincible in court,” he said in a prepared statement. “The judge’s ruling shows otherwise, handing the Tohono O’odham a clear loss and changing the momentum of this case.”
The Gila River tribe has a direct interest in the outcome: It currently has the closest casino to the West Valley area and stands to lose business when the Glendale casino opens.
The lawsuit focuses on a letter Bergin sent to O’odham officials earlier this year saying he does not intend to provide the necessary certifications to operate a Class III casino.
Bergin claims the tribe committed fraud in 2002 by not disclosing plans to build a casino in Maricopa County. He said state officials who negotiated the compact and the voters who approved tribal gaming were led to believe gaming would be limited to existing reservations.
Even with the injunction being denied, the question remains whether Bergin can legally follow through on his threat. All sides agree Bergin can deny the certifications only if the tribe has violated the terms of the compact.
But Bergin takes the position that the compact incorporates a state law that requires “extensive, thorough and fair regulation of Indian gaming.” And he contends that allows him to consider what he said is the tribe’s 2002 fraud.
O’odham officials have said there were no firm plans at the time. But regardless, their attorneys say the state law on which Bergin is relying is not part of the compact, leaving him powerless to cite that as a reason to deny certification.
In his ruling Thursday, the judge dismissed the tribe’s separate claim that Gov. Doug Ducey and Attorney General Mark Brnovich illegally interfered with their rights to open a casino by sending letters to Bergin urging him to deny the necessary licenses.
“There can be little doubt that these letters influenced Arizona Department of Gaming’s decision,” Campbell said. But the judge said that is not enough to sue them.
The scheduled December opening of the $200 million Glendale casino culminates events going back decades.
In 1986, Congress agreed to give the tribe $30 million to compensate for about 10,000 acres of reservation near Gila Bend that were flooded by a federal dam project. That law also gave the tribe permission to buy replacement land in Pima, Pinal or Maricopa county.
Using a fictitious name, the tribe bought the Glendale site in 2003. But the true owners — and the intent to have it made part of the reservation — were not disclosed until 2009.
Even if Campbell does decide the tribe is entitled to operate a Class III casino, there could be another hurdle. The U.S. House already has approved legislation sponsored by Rep. Trent Franks, R-Ariz., to deny the ability to open a casino on the site until 2027; the Senate has yet to take action on the measure.
