St. Regis Mohawk Tribe Sues Interior Secretary for Abuse of Office
NEW YORK, NY, January 14, 2008. Empire Resorts, Inc. (NASDAQ: NYNY) today announced that its partner, The St. Regis Mohawk Tribe, (the Tribe) has filed a lawsuit against the United States Department of the Interior, Dirk Kempthorne, in his official capacity as Secretary of the Interior, James E. Cason, in his official capacity as Associate Deputy Secretary of the Interior, and Carl J. Artman, in his official capacity as Associate Secretary of the Interior for Indian Affairs, in federal district court in New York for unlawfully rejecting the Tribe's application under the Indian Gaming Regulatory Act of 1988 (IGRA) to place approximately 29 acres of land in Sullivan County in trust for the Tribe.
On January 4, 2008, the Tribe received a letter from Assistant Secretary James Cason indicating that the request was denied based upon regulations promulgated under IGRA relating to the need of the Tribe for additional land, the purposes for which the land would be used, and the distance of the land from the Tribe's reservation.
The Tribe alleges in its complaint that the Secretary made an unlawful decision that is not only arbitrary and capricious and an abuse of discretion, but also has no basis in law and constitutes an abuse of his position as Secretary. In addition, the Tribe alleges in its complaint that the Secretary cannot lawfully apply new requirements to the Tribe's long-standing application without giving fair notice of new federal regulations. The new rules failed to follow the Administrative Procedure Act on several counts, including ignoring the requirement to consult with tribes or provide a comment period.
"The Secretary decided to simply rewrite the law to suit his own purpose, without consulting Congress," said Empire Resorts CEO Dave Hanlon. "What we have in this instance is a Secretary who has attempted to devise a way to circumvent federal law by creating new federal guidelines for existing fee-to-trust applications.
"In reaching his decision, Kempthorne ignored ten years of administrative record and unilaterally adopted a new rationale, having no precedent, for rejecting the Tribe's application: that the proposed casino, nearly 350 miles away, was a prohibitive distance from the Tribe's territory and would result in negative impacts to the Akwesasne community," continued Hanlon. "In fact, commuting hundreds of miles for work and livelihood is an ingrained part of Mohawk life where families, permanent residences and community remain unbroken.
"Also, with these new rules, the Secretary has unilaterally and without foundation in law overturned the Department of the Interior's own determination, issued on April 6, 2000, that the proposed project would relieve the high unemployment problem on the reservation by inducing many unemployed tribal members to travel to Monticello: "Tribal members leaving for jobs at the proposed casino could reduce reservation unemployment by a substantial percentage." This fact was found by the Department of the Interior to be positive for the economic development of the Tribe and its members and was the basis for the Secretary's 2-part determination that the project was in "the best interest of the Tribe."
Hanlon added, "The problem is that the new rules disregard the required tribal consultation process and Kempthorne never bothered to give proper notice. Beyond this, we contend that his decision failed to consider the very strengths and merits of the Tribe's application and the administrative record. The Tribe is now asking the courts to require the agency to follow the rule of law and consult the record."
The Tribe also maintains that the decision contradicts previous determinations made by both Kempthorne himself and a previous Secretary, including "Findings of Fact" issued by the Department of the Interior in April 2000 that the proposed project was in "the best interest of the Tribe." Commented Hanlon, "He made this decision after Interior had received, at its own request, a letter from Governor Spitzer in February 2007 that concurred in the prior Secretarial determination that the project was in the best interest of the Tribe. In addition, the N.Y. Legislature passed a law in 2001 allowing Indian casino projects to be developed exclusively in the Catskills."
In addition to filing a lawsuit, the Tribe is communicating with other tribes to explore the collective options for Indian Country, including additional legal action and protests. In alliance with other affected tribes, Mohawk leadership will be calling for oversight hearings by the House Natural Resources Committee and the Senate Select Committee on Indian Affairs-particularly to call attention to the Department of the Interior's complete lack of consultation with Indian tribes on the new federal regulations introduced by the Department, and the failure to give fair notice of the new requirements.
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