Federal judge rules in favor of appeal of Cowlitz Casino decision

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A federal judge has hit the reset button on the 11-year battle over whether or not to allow the Cowlitz Indian Tribe to build a mega casino near the La Center I-5 junction.

In a turn of events termed “shocking’’ by participants in the case, U.S. District Court Judge Barbara Rothstein ruled March 13 that the 2010 decision by the Bureau of Indian Affairs BIA to allow the Cowlitz Tribe to enter 152 acres near the La Center I-5 junction into trust must be re-issued.

In addition to that decision, Rothstein dismissed the appeal as moot of the 2010 BIA decision by the owners and operators of La Center’s four existing cardrooms Dragonslayer Inc. and Michels Development who are joined as plaintiffs in the case by Clark County, the City of Vancouver, nearby property owners Al Alexanderson and Greg and Susan Gilbert; and Citizens Against Reservation Shopping.

“We have believed from the beginning that the federal government ignored many of our valid claims and continued to move forward,’’ said John Bockmier, a Vancouver-based consultant who represents the owners of La Center’s four existing cardrooms. “This decision today by the court clearly validates our claim and is a strong victory for what we have tried to do from the beginning.’’

While Rothstein’s decision was a clear victory for the opponents of the Cowlitz casino, Bockmier was quick to admit this wasn’t the end of the battle.

“Absolutely not,’’ Bockmier said.

Cowlitz Indian Tribe Chairman Bill Iyall expressed frustration over the latest turn in the case, but he insisted it’s just yet another hurdle that must be cleared before the tribe is able to build its casino.

“Judge Rothstein is addressing some procedural issues, but her ruling is unrelated to the substance of the legal issues before her,’’ Iyall said. “The tribe’s legal position is very strong and we remain confident of the outcome.’’

Rothstein’s decision came less than a week after she issued a key ruling in favor of the Cowlitz Tribe’s efforts, only to inform both sides hours later that she was reconsidering that decision.   

On March 7, Rothstein denied a motion by Clark County and fellow plaintiffs to throw out a revised opinion filed on behalf of the tribe last fall.

In addition to originally denying the plaintiff’s motion, then later reconsidering, Rothstein also set a briefing schedule for the case to move forward. That move pleased all parties in the appeal case, which was already two years old.

The revised opinion Rothstein was ruling on March 7, in the form of a Supplemental Record of Decision, was filed in response to a prior judge’s Oct. 5, 2012 deadline for the legal team representing the U.S. Department of the Interior to respond to his denial of their request for a remand in the case.

The Department of Interior attorneys represent the BIA, which issued a decision on Dec. 17, 2010 to allow the Cowlitz Tribe to take the 152 acres near the La Center I-5 junction into trust in order to build the mega casino.

In its motion for a remand, the attorneys acknowledged to the court that it had misplaced, or not received, key portions of the administrative record in the case and therefore did not address those elements of the matter in its record. The judge gave the attorneys until Oct. 5, 2012 to inform the court if they would proceed with the case in spite of the fact those materials weren’t addressed, or else rescind the BIA’s 2010 decision to allow the Cowlitz to take the 152 acres into trust.



Instead of choosing either of those options, the Department of the Interior legal team attempted to address the omission in its previous filings with the Supplemental Record of Decision. That strategy led to the filing of the motion to dismiss by the legal team representing the plaintiffs.

After that filing, U.S. District Judge Richard W. Roberts was replaced on the case by Rothstein, whose first action on the case was the events that took place on March 7.

Bockmier and those parties making the appeal, obviously agreed with Rothstein’s latest decision.

“Once you close the record, you can’t go back and amend it to meet your needs,’’ Bockmier said. “We’re delighted with the decision.’’

Iyall conceded there was a hole in the record submitted by the legal team representing the tribe’s interests. However, he said it should have been addressed by the court long ago.

“It probably should have been done a year ago with the prior judge Roberts,’’ Iyall said.

In her 12-page ruling on March 13, Rothstein ordered the BIA to issue a new decision of record within 60 days of the order. Those involved in the case immediately questioned whether the judge holds that power and also were skeptical that the BIA could issue a new decision of record in such a short period of time, citing the fact that it took three years to issue the 2010 decision.

Iyall believes it is possible.

“We are pleased that the judge asked for a new decision within 60 days,’’ he said. “That’s what we’re now hoping for, that there is a follow through on that from the BIA. We are confident we will get another decision and in the end it will be a stronger decision. Obviously, there were some technical issues in the prior decision as far as records detention. That won’t be the situation any longer.’’

If the BIA does re-issue the decision, neither side knows definitively what actions that will set in motion. Will the parties who appealed the 2010 decision have to re-issue a new appeal? Will they be allowed to amend, or add to, the record they’ve already established? Will a new appeal have to be filed if a new decision is issued?

There are many other questions each side’s legal team is now discussing as well. For example, the Final Environmental Impact Statement FEIS for the Tribe’s proposed project was completed May 30, 2008. Considering the fact that a FEIS usually has a shelf life of about five years, will that process have to be reset as well?

All parties agree that there are simply too many questions to answer at this point.

“It is frustrating for our tribal members having been in the process for over 10 years,’’ Iyall said. “There’s no certainty to any of this.’’