People Against a Casino Town
News from PACT
PACT rallies together over second casino lawsuit

By Karen Vittek, Siuslaw News
Saturday, December 13, 2003

The lawsuit claims that the Oregon Constitution prohibits casinos
and that the governor violated the separation of powers.

People Against a Casino Town held a meeting on Thursday night to explain plans for its lawsuit against the state.  The lawsuit, filed on Wednesday in the Lane County Circuit Court, claims the governor did not have the authority under the state constitution to enter into a tribal compact allowing a casino on the Hatch Tract.

The lawsuit claims that the Oregon Constitution prohibits casinos and that the governor violated the separation of powers between the executive and legislative branches of the government by signing compacts with the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians.

The group filed a similar lawsuit at the Oregon Supreme Court level and the Supreme Court declined to hear it.

“The Supreme Court is made up of people just like you and me,” said Liam Sherlock, on of the three attorneys for PACT.  “Governor Ted Kulongoski was the attorney general for a couple of years and worked with them.  He sat on the Supreme Court for four years.  Therefore, these judges are his colleagues and he's appointed one of them to the court.

“The beauty of [declining to hear a case] is that they can make a decision without making a decision,” Sherlock said, “They knew if they took the case, they would have had to rule in PACT’s favor, which creates some issues if you have to go to a cocktail party with the governor the next weekend.  If PACT wins through [the lower courts] and it returns to the Supreme Court, they can still decline to review it without opinion.”

Sherlock also said the Supreme Court “may have had too much on its docket.”  He emphasized that declining to hear a case does not comment on the merit of the issues in the lawsuit, and that is why PACT can refile the case in the Lane County Circuit Court.  He also said that the state’s arguments in the Supreme Court case did not bring up issues of merit and instead focused on “procedural niceties.”

“Nothing in their [the governor’s] response to our writ took on our substantive points of law,” he said, “Nothing directly negated our argument.  I know they [the state] are scared and they are worried.  They’re saying, ‘We have a major, major issue on our hands.  How is it that we’ve gotten this far and finally somebody’s calling our bluff.’”

Although the lawsuit cannot prevent the tribes from building a structure out at the Hatch Tract, the goal is to prevent the use of that structure for a casino, Sherlock said.

“If you or I tried to open a casino, we’d be shut down in a heartbeat and there is nothing in the federal Indian Gaming Regulatory Act that allows the Indians to do anything the people in the state can’t do,” he said.  “In order for the [circuit court] to rule against PACT, it would be implicit in that ruling that anybody can open a casino.  That flies in the face of the constitution.”

Sherlock said that, if the court found in favor of PACT, the judicial decree would command the federal agency with jurisdiction to keep the casino from operating because the state-tribal compact would be void.

“The writ would say to that federal agency with jurisdiction that section 18 of IGRA says tribal casinos cannot operate without a compact and it would demand that the federal government uphold the prohibition against illegal gambling in a state that doesn’t allow gambling.”  Sherlock said.

Sherlock said he’s expecting that one focus of the case will be definition of the word “casino” but that has already been established in previous case law and in state practice with video lottery terminal establishments.

“The court said a ‘casino’ is as it is defined in Webster’s Dictionary.  The language in the compact refers to this as a casino and the types of activities planned are clearly casino activities,” he said.  “The state regulatory commission says that any business activity with more than 60% of its revenues from gambling is a casino and the state is clear that it doesn’t allow those establishments ... If it walks like a duck and talks like a duck, it is a duck.”

Although the case cannot stop the construction of facilities on the Hatch Tract, Sherlock suggested that no investor would want to “put any money into a sinking ship.”

He said that, should the lawsuit be successful and the hatch Tract casino compact be declared void under the constitution, the state could try to have the constitution amended to declare casinos legal.  However, Sherlock said it takes a statewide referendum to do so.

“However, we’re purposefully focusing our efforts on this particular Hatch Tract casino because we’re not ready to take on the entire state and all the casinos,” he said.

He said he feels the issue didn’t come up before because the other casinos are on reservation land and there is not a strong opposition base.  “With those eight other casinos, there wasn’t a citizen group like you to say enough is enough,” he said.

Other speakers at the PACT meeting included Susie Dewberry, who talked about the PACT steering committee.  “Without all those people and the committee’s hard work, we would have a casino in our town,” she said. 

Dewberry also talked about a trip to Washington D.C. to lobby federal representatives about federal Indian policy.  She said they’d met with more than 40 officials, including representatives of senators Gordon Smith and Ron Wyden and Representative Peter DeFazio.
 
Dewberry said Smith may be able to help with casino policy reform, especially because he is on the Indian Affairs committee.  However, he is also number five on a list of top senators receiving tribal campaign contributions, she said.

Wyden didn’t respond one way or another to their visit and request for assistance, and DeFazio recently wrote a letter to the Natural Resources Committee, which deals with Indian Affairs for the House of Representatives, criticizing the practice of ‘reservation shopping.’

Dewberry said she hopes to get help from Smith in reviewing the original application to add the Hatch Tract to the tribal trust.  “In the trust application for the Hatch Tract, the tribes said they would use the site for cultural and historical purposes and had no plans for a casino,” she said. 

Arnold Buchman spoke about the impact he feels PACT has had on the local plans for a casino.  “Eight months ago they said we were going to have a 400 slot casino with roulette tables and dice games and poker tables in a Las Vegas style casino setting and that was a ‘done deal,’” he said.  “Along with the cultural and traditional aspects of Monday’s ceremony came a down-sized casino ... Obviously this doesn’t mean that R.O.I. and the tribes have given up on the casino road, but they’re making way smaller steps.  They’ve discovered this community doesn’t roll over simply because it’s told to.”

Carol Holcombe told people about the 'PACT-10' fund, which is the fund to pay for the lawsuit.  The last theme to come out of the meeting was that the PACT members should continue to discuss the implications of providing services to the Hatch Tract with local governments, services including water, sewer and electric utilities.  “Let them all be aware we are alert to the dangers,” said Buchman.

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