New Bedford developer sues over gambling law

New Bedford developer sues over gambling law

Calls provision for tribes an illegal “racial set-aside”

Hours after Gov. Deval Patrick signed legislation legalizing casino gambling in Massachusetts, the would-be developer of a New Bedford casino is asking a federal judge to block the law’s implementation.

KG Urban Enterprises, a development firm that wants to build a casino at the site of an abandoned power plant on New Bedford’s waterfront, sued Patrick over a provision in the casino law that gives federally recognized Native American tribes an exclusive negotiating period to seek a gaming license in southeastern Massachusetts. The Mashpee Wampanoag are the only tribe that could conceivably take advantage of this exclusive period. The developer’s lawsuit contends that this exclusive negotiating period amounts to an illegal “racial set-aside provision” that violates federal equal protection guarantees, and oversteps federal authority over tribal gaming.

KG is also seeking a preliminary injunction that would block the implementation of the new casino law until a judge can rule on the lawsuit.

New Bedford gaming supporters have been warning of an impending lawsuit since this summer, when the language concerning the tribal preference first surfaced. Tribal gaming across the country was thrown into limbo in 2009, when the Supreme Court ruled that the Department of the Interior only had the right to take land into federal trust for tribes that were recognized prior to 1934. The Supreme Court said that Congress would have to pass legislation allowing Interior to do land deals with tribes recognized after that date. No such legislation has passed.

KG’s lawsuit argues that, because the Mashpee don’t possess a federal reservation or land in federal trust, they’re unable to operate a casino under the federal Indian Gaming Regulatory Act. And, the suit argues, because the Mashpee don’t have land and can’t operate under federal tribal gaming regulations, the Massachusetts law’s tribal preferences are discriminatory.

“Race is the sole determinative factor in awarding a commercial gaming license in Southeastern Massachusetts, and completely displaces the normal competitive process that prevails in the rest of the Commonwealth,” the complaint argues. “The state has no more authority to reserve a commercial gaming license for an Indian tribe than it has to exclude tribes from competing for such licenses on equal terms with other applicants… There is no Indian gaming exception to the Equal Protection Clause.”

At the State House signing ceremony earlier today, both House Speaker Robert DeLeo and Patrick said they are confident the bill will withstand a challenge to the set-aside, although DeLeo did admit that it “could slow down the process” of permitting any casinos until it’s all sorted out.

“There’s a few things that could slow the process,” DeLeo said. “The local control option could slow it down, the challenge to a set-aside could slow it down. We’ve had counsel look at it extremely closely” in anticipation of court challenges, DeLeo added. “But someone could still file suit like they could over any legislation.”

Meet the Author

Paul McMorrow

Associate Editor, CommonWealth

About Paul McMorrow

Paul McMorrow comes to CommonWealth from Banker & Tradesman, where he covered commercial real estate and development. He previously worked as a contributing editor to Boston magazine, where he covered local politics in print and online. He got his start at the Weekly Dig, where he worked as a staff writer, and later news and features editor. Paul writes a frequent column about real estate for the Boston Globe’s Op-Ed page, and is a regular contributor to BeerAdvocate magazine. His work has been recognized by the City and Regional Magazine Association, the New England Press Association, and the Association of Alternative Newsweeklies. He is a Boston University graduate and a lifelong New Englander.

About Paul McMorrow

Paul McMorrow comes to CommonWealth from Banker & Tradesman, where he covered commercial real estate and development. He previously worked as a contributing editor to Boston magazine, where he covered local politics in print and online. He got his start at the Weekly Dig, where he worked as a staff writer, and later news and features editor. Paul writes a frequent column about real estate for the Boston Globe’s Op-Ed page, and is a regular contributor to BeerAdvocate magazine. His work has been recognized by the City and Regional Magazine Association, the New England Press Association, and the Association of Alternative Newsweeklies. He is a Boston University graduate and a lifelong New Englander.

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan, a veteran of the Boston newspaper scene for more than two decades, was most recently editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the 2003 New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's 2002 award for business for his reporting on the sale of the Boston Red Sox. He also won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

A Boston native, Jack has lived in Massachusetts all his life. He was a major in English and history with a minor in political science at the University of Massachusetts, Boston. A father and grandfather, he lives in Plymouth with his wife, Susan.

About Jack Sullivan

Jack Sullivan, a veteran of the Boston newspaper scene for more than two decades, was most recently editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the 2003 New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's 2002 award for business for his reporting on the sale of the Boston Red Sox. He also won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

A Boston native, Jack has lived in Massachusetts all his life. He was a major in English and history with a minor in political science at the University of Massachusetts, Boston. A father and grandfather, he lives in Plymouth with his wife, Susan.

Patrick said he is satisfied the law would pass constitutional muster and said the rights of Massachusetts tribes had to be considered in crafting the bill.

“It (the law) represents and respects the rights of tribes,” Patrick said.