A legal battle in Fall River could sink the Mashpee Wampanoag tribe's plans to build a $500 million casino in the city.
On Monday, an attorney for the Fall River Redevelopment Authority filed a notice of intent to appeal to a single justice of the Massachusetts Appeals Court, according to court records.
At issue is whether the Redevelopment Authority overstepped its bounds by selling 300 acres to the tribe for a casino on land where a gambling facility is banned by the 2002 Bioreserve Act.
"It's like putting the cart before the horse," said Lesley Rich, who is representing the 10 taxpayers who brought the initial suit. "They need to change the law before they sell the land."
Bristol Superior Court Judge Richard Moses imposed the temporary injunction last month based on the state restrictions. The judge also supported the argument that the sale of the property should have gone out to bid, a position backed by the state's inspector general.
The authority's attorneys have argued that the proposed sale doesn't violate the act because the restriction is "likely to be removed by the Legislature." Attorneys point out that the restriction was removed in legislation approved last summer, but never signed into law by the governor.
Max Stern, the lawyer representing the Fall River Redevelopment Authority, did not return repeated calls Monday seeking comment.
In May, the redevelopment authority agreed to sell the 300 acres once planned for a biotechnology park to the tribe for $21 million contingent on the Legislature approving expanded gambling in the Bay State.
In October, the redevelopment authority agreed to revise the deal, selling 60 acres to the tribe for $4.5 million with an option on the remaining land for $16.5 million.
The injunction has delayed the closing of that deal, which had been scheduled for Nov. 16.
In October, the tribe set up a corporation called Project First Light Inc., with the tribal council administrators listed as officers of the corporation, to purchase the land.
In the tribe's November newsletter, Chairman Cedric Cromwell writes that the tribe has borrowed an undisclosed amount of money from Arkana Ltd., a subsidiary of Kien Huatt, a Malaysian casino investment company, at 15 percent interest that "covers some tribal operations and Project First Light Casino pre-development budget."
Reached by phone Monday, Cromwell declined to comment on the ongoing legal battle being waged over the land sale. The tribe is not named in the suit.
On Wednesday, the redevelopment authority voted 4-0 to file the appeal.
Mayor Will Flanagan, who initially began talks with the Mashpee tribe about a casino in the financially strapped city last February, has repeatedly said a casino is needed to spur Fall River's job growth.
Despite a majority of the Fall River City Council members opposing the appeal, council Vice President Linda Pereira said the council has no authority to block the legal challenge.
"The way the mayor is touting this is, it's jobs, jobs, jobs for the people of Fall River. You don't have any guarantee that the jobs will be for the people of Fall River," said Pereira, who has been critical of the land sale. "There are just too many ifs."
Indeed, there are no guarantees this casino will ever be built. The legal battle adds another hurdle for the tribe's efforts to bring expanded gambling to Massachusetts.
The state Legislature has yet to approve casino gambling in Massachusetts. In July, the House and Senate supported a compromise bill that would have allowed two resort-style casinos and slots at two of the state's race tracks, but Gov. Deval Patrick refused to sign the legislation because he's opposed to so-called racinos.
Meanwhile, nearly two years after the U.S. Supreme Court ruled in Carcieri v. Salazar that the U.S. Department of the Interior has no authority to take land into trust for tribes recognized after 1934, there is still talk of a "fix," but no action.
U.S. Sen. Diane Feinstein, D-Calif., reportedly supports imposing stricter regulations on Interior for Indian gaming on newly acquired lands and may attach legislation to an upcoming appropriations bill.
In September, Cromwell said Feinstein's proposal would "be devastating for newly recognized and disadvantaged tribes" like the Mashpee Wampanoag.
In recent days, after tribe leaders across the country joined Cromwell in opposing Feinstein's proposal, a White House spokeswoman told Indian Country Today that the Obama administration supports a "clean Carcieri fix" — one that would put all tribes on equal footing such as the bill proposed by U.S. Sen. Byron Dorgan, D-N.D.
Cromwell said he's encouraged by Obama's strong support for the rights of all tribes no matter when they were recognized.
"We're hopeful that the Dorgan language will be supported either in the lame duck session or sometime early in 2011," he said. "We need to get this fixed on a national level."
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