Court permits Arizona to reargue core claims against West Valley casino in lawsuit

Paul Giblin
The Republic |
  • District court allows state to argue that a southern Arizona tribe sidestepped state gaming compact
  • Tohono O'odham vows to continue fight for Las Vegas-style gaming in West Valley
  • Rival tribes oppose Tohono O'odham's move to cash in on metro the Phoenix gambling market
People play games at the new Desert Diamond West Valley Casino Sunday, Dec. 20, 2015 near Glendale, Ariz.

Here's a sure bet: The legal fight over the Desert Diamond Casino West Valley will be in the court for months — perhaps even years — to come.

Fresh off a decision from the U.S. 9th Circuit Court of Appeals this week that all but green-lighted Las Vegas-style gambling at the casino, a federal District Court judge said he will allow the state to reargue some of its core claims against the Tohono O'odham Nation, which runs the facility.

Wednesday's order by Judge David Campbell is related to a separate lawsuit the Tohono O'odham brought against Arizona and Department of Gaming Director Daniel Bergin last year.

The tribe sued to force the state to provide a full gambling license and the state filed a counterclaim, alleging the tribe had committed fraud by opening the casino.

The Tohono O'odham asked Campbell to dismiss the state's counterclaims. Campbell's ruling gave the state leeway to argue some of its claims when the case goes to trial this summer.

"If the director can be forced into court and required to defend this case, he can participate as a normal litigant in the case, including by asserting counterclaims," Campbell wrote.

Bergin's chances of successfully making the fraud argument in Campbell's court seem remote, though. The opening sentence in Campbell's 22-page ruling notes that he ruled in 2013 that the state's gaming compact did not prohibit the Tohono O'odham from building a new casino in metro Phoenix.

Tohono O'odham Chairman Edward D. Manuel said in a statement that tribal leaders anticipate the court will rule in the tribe's favor when the case goes to trial.

"As the Nation has said for years, and as the 9th Circuit Court of Appeals strongly agreed in its ruling this week, the compact is crystal clear in expressly giving the Nation the right to game on its lands in the Phoenix area," he said.

There is "absolutely no merit" to the state's "misguided claims" against the tribe, he added.

The tribe opened the casino near Glendale's Westgate Entertainment District on Dec. 20, but with limited Class 2 gaming machines, because state regulators refused to grant a license for a full-scale Class 3 license.

The tribe sued, claiming federal law prevented Bergin from withholding a license for Class 3 gambling.

The state filed a counterclaim against the Tohono O'odham, arguing that the southern Arizona tribe wasn't entitled to a Class 3 license because it committed fraud by agreeing to a state gaming compact in 2003 without publicly stating its intent to open a casino outside its historic reservation land in southern Arizona.

The Tohono O'odham purchased unincorporated land at the edge of Glendale and converted it into reservation land after agreeing to the compact.

Later, the tribe announced its intention to muscle into the metro Phoenix gambling market by building a casino on the parcel. The state and other casino-owning tribes objected, triggering a flurry of legal actions.

This week, the Court of Appeals affirmed an earlier ruling by Campbell that the West Valley casino complies with federal law and that the state gaming compact allows the Tohono O'odham to operate a casino in metro Phoenix.

Gila River Indian Community Gov. Steven Roe Lewis said Cambell's ruling represented a "big win" for the state, the Department of Gaming and Gov. Doug Ducey, because it allows the Tohono O'odham to be held legally accountable for its conduct.

"All of us who oppose the Nation’s neighborhood casino today are thankful that Gov. Ducey and ADOG Director Bergin continue to pursue every legal option in this fight. Our community stands equally committed — and we hope the U.S. Congress is as well," Lewis said in a statement.

Lewis' call for Congress to act is in reference to the proposed Keep the Promise Act, which would bar the West Valley casino from operating until Arizona's current gaming compact expires in 2027.

The Senate version of the measure, introduced by Sens. John McCain and Jeff Flake, both R-Ariz., is stalled. The House version, introduced by Reps. Trent Franks and Paul Gosar, both R-Ariz., failed last fall.

Representatives for Ducey's office did not return calls seeking comment Thursday.