Secret meetings, destroyed notes in Desert Diamond West Valley casino dispute
Months before the Tohono O'odham Nation opened its controversial casino near Glendale in December, lawyers and lobbyists representing the state and two rival Indian communities held confidential meetings about ways to stop it, according to depositions released Wednesday.
No known records from those gatherings exist. Assistant Attorney General Roger Banan, who represented the Arizona Department of Gaming at the meetings, destroyed his "brief" notes — "less than half a page," he said during a deposition — after he updated department Director Daniel Bergin.
"They were of no further use," Banan said.
The Tohono O'odham Nation wants the U.S. District Court to sanction Bergin because his lawyer should have preserved the documents as potential evidence in an impending lawsuit. The destruction of the notes "deprived the Nation" of a record of what occurred, according to court documents.
This is the latest twist in more than six years of litigation over the Desert Diamond Casino West Valley. The Tohono O'odham Nation, based near Tucson, purchased unincorporated land near Glendale's Westgate Entertainment District in 2003.
When the tribe announced plans for a casino in 2009, a flurry of legal action ensued. The state and rival casino-operating tribes argued the new casino would be illegal under a gaming compact voters approved in 2002.
Earlier this year, the 9th U.S. Circuit Court of Appeals affirmed a ruling that the West Valley casino complies with federal law and the gaming compact.
But the Tohono O'odham Nation filed a separate lawsuit in June 2015 after the Department of Gaming refused to give the casino a full gambling license, limiting the games Desert Diamond can offer.
The state filed counterclaims, alleging the tribe committed fraud.
What was said at the meetings?
Banan revealed details about the private meetings during an Aug. 23 deposition for the Tohono O'odham lawsuit.
Banan said the state, the Gila River and Salt River Pima-Maricopa Indian communities had four meetings in 2015.
At a May 13 meeting, representatives from the governor's office, attorney general's office, Department of Gaming, Gila River Indian Community and Salt River Pima-Maricopa Indian Community signed a common-interest agreement, which provided confidentiality and "protection of shared information."
Banan said the state is "pretty much an open book," but "the tribes seemed to be the most interested in keeping (the meetings) secret."
All of the meetings occurred prior to the filing of the Tohono O'odham Nation's lawsuit on June 22. But as early as April 15, the tribe warned the state that "the Nation is prepared to exercise all available remedies to compel" the gaming department to authorize a full license, according to court documents.
Banan said that in most of the meetings, the tribes urged the state to stop the Desert Diamond Casino. The Tohono O'odham Nation broke ground on the casino in August 2014.
"A lot of what was being urged was clearly things that the Department of Gaming was not going to do," Banan said during the deposition.
Many of those requests came from Gila River Indian Community lobbyist Donald Pongrace, Banan said. Pongrace suggested the state stop water, electricity and trash services to the casino.
"I dismissed that out of hand, and I politely refused to discuss it, basically," Banan said.
Banan said he told the tribes that the state would issue letters to casino vendors, notifying them that the "Department of Gaming considered the West Valley casino to be illegal ... and that by doing business with an illegal casino, that the vendors could be placing their own state certificate in jeopardy."
The tribes did not give input on the letters, Banan said during the deposition.
He said the group discussed the status of the Keep the Promise Act — a congressional attempt to quash the casino — and the possibility of another lawsuit alleging fraud.
Representatives from the governor's office, gaming department and attorney general's office declined to comment.
"These meetings were part of ongoing discussions to finds ways to hold the Tohono O’odham accountable and keep the promises made to the people of Arizona, and as such, were fully appropriate,” said Gary Bohnee, a spokesman for the Salt River Pima-Maricopa Indian Community.
Manuel Johnson, a spokesman for the Gila River Indian Community, said in a statement that the Tohono O'odham's motion "seems like a desperate attempt to change the focus away from the fraud that Tohono O’odham committed, which if the issue of fraud is ever tried in a court of law Tohono O’odham knows they would likely lose."
Tohono O’odham Nation Chairman Edward Manuel said in a statement, “This case has uncovered a disturbing level of secret coordination between the state agency that oversees Indian gaming, and two competitor tribes that this agency is charged with regulating. Despite these questionable tactics, our primary goal remains the same – to continue providing positive jobs and economic opportunity for the Tohono O’odham Nation, the West Valley and Arizona.”
Why destroy the notes?
In his deposition, Banan said he kept brief notes on the meetings, but destroyed them after updating the director because they were of "no further use."
The meetings occurred before the Tohono O'odham Nation filed its lawsuit, which Banan said he "wasn't anticipating."
Arizona First Amendment Coalition Attorney Dan Barr said a judge can hold individuals accountable for documents destroyed prior to a formal lawsuit if there's reason to believe that a lawsuit is forthcoming.
"If you have a duty to keep certain documents and you destroy them, then the judge could consider a ... sanction," he said.
The Tohono O'odham Nation argued that the destruction of documents deprived the tribe of information about relevant discussions with rival tribes.
But Barr said it's unclear whether these documents would meet that standard, even if they still existed. Because Banan is a lawyer, and his notes were produced for his client — Bergin at the gaming department — they likely would fall under attorney-client privilege, Barr said.
However, there are rare cases where a client waives that privilege, Barr said.
The state's relationship with the tribes
Prior to Banan's deposition, U.S. District Judge David Campbell expressed concerns about the state's relationship with the Salt River Pima-Maricopa and Gila River Indian communities.
The state argued that an email between Banan and Pongrace was privileged because the state and Gila River Indian Community shared a "common interest," and should enjoy an "extension of the attorney-client privilege."
Campbell disagreed and ordered the email be released. He also questioned the state's connection to the tribes.
"The court also finds troubling the notion that a state regulatory body could join in a privilege-protected partnership with one of the entities it regulates to thwart expansion efforts of another entity it regulates, whether or not the regulatory body has a valid basis for opposing the expansion," Campbell wrote.
A motion filed by the Tohono O'odham Nation on Wednesday asked for two sanctions against Bergin.
First, it asks the court to strike two of the defenses Bergin used in legal filings alleging fraud. The court should not permit accusations that the tribe had "unclean hands" and "bad faith" when the state acted unethically by destroying documents, tribal lawyers argued.
The tribe also asked the court to infer that the two rival tribes inappropriately encouraged Bergin to send "threatening" letters to casino vendors and do other things to delay the casino's opening.