JUSTICES ON THE United States Court of Appeals for the District of Columbia (D.C. Circuit), including Chief Justice Merrick Garland, President Obama’s nomination to replace Justice Antonin Scalia on the U.S. Supreme Court, heard oral arguments for the Cowlitz case on Fri., March 18.
The federal case that could decide the fate of the Cowlitz Indian Tribe’s $510 million mega-casino near La Center is underway in Washington, D.C.
Justices on the United States Court of Appeals for the District of Columbia (D.C. Circuit), including Chief Justice Merrick Garland, President Obama’s nomination to replace Justice Antonin Scalia on the U.S. Supreme Court, heard oral arguments for the Cowlitz case on Fri., March 18.
Asked if Obama’s nomination would have any effect on the Cowlitz’ case, the tribe’s attorney, Phil Harju, said the case was expected to go on as scheduled, with a ruling sometime this summer.
The appellants, which include Clark County, the city of Vancouver, the Confederated Tribes of the Grand Ronde, the owners of the private card rooms in La Center and a group calling itself Citizens Against Reservation Shopping, argue that the U.S. Secretary of the Interior “acted unlawfully in taking land into trust for the Cowlitz Tribe to build a casino.”
The arguments being heard in the D.C. Circuit rest on a U.S. Supreme Court decision in Carcieri v. Salazar, which set limits on the Bureau of Indian Affairs’ (BIA) process for taking land into trust for tribes. The case allowed the BIA to take land into trust for tribes that were under federal jurisdiction in 1934. Because the Cowlitz Tribe, which refused to enter into treaties in the early 20th century, was federally recognized in 2002, the appellants argue that the Cowlitz are not legally able to have the BIA take land into trust near La Center.
“A landless tribe that went unrecognized until 2002 cannot have been ‘recognized’ and ‘under federal jurisdiction’ in 1934,” the appellants state in their motion.
The D.C. Circuit ruling, expected to come down some time this summer, is critical to the tribe’s casino plans. Any appeal of the D.C. Circuit is up to the discretion of the U.S. Supreme Court to hear or not to hear. If the Supreme Court decided to reject the case, the D.C. Circuit ruling would be the end of the line for the appellants and the tribe.
Despite the pending litigation, however, the Cowlitz Tribe has been moving forward with its casino construction — starting site preparation work in September of 2015; entering into agreements with Clark County Fire and Rescue for emergency services; starting the permitting process with the Environmental Protection Agency for its wastewater reclamation project; and closing in on traffic-improvement construction work at the Interstate 5 junction near La Center.
On Feb. 26, Clark County Chair Marc Boldt wrote to Cowlitz Tribal Chairman Bill Iyall and said the county was issuing a stop-work order, demanding that the tribe cease and desist all construction on the 152-acre site.
When the tribe refused to halt construction, the county sought an injunction from the D.C. Circuit, arguing that allowing the tribe to continue construction on the reservation site will do “irreparable harm” to the appellants.
“The construction is now and will continue to irreparably harm Appellants’ environmental interests and Clark County’s jurisdictional interests,” states the March 3 motion for injunction, filed by all of the appellants except the city of Vancouver, which says it is not immediately impacted by the ongoing construction at the reservation site. “The Tribe commenced construction in January, fully aware that this Court will be the first appellate court to review the SEcretary’s new interpretation of the IRA, in the wake of the Supreme Court’s decision in Carcieri v. Salazar … The Tribe decision to build as much of the casino as possible before this Court rules is calculated risk — one that also appears intended to undercut the Court’s review and limit available remedies.”
The casino opponents also asked that, if the D.C. Circuit judges denied their request for injunctive relief, they would ask the court to consider an expedited appeal.
“Appellants’ need for relief now is urgent,” the casino opponents state in their motion to halt construction on the reservation site until after the D.C. Circuit ruling comes down. “Appellants could not have realized that the Tribe would commence full construction so soon before argument.”
If the Cowlitz Tribe prevails at the D.C. Circuit level — and the U.S. Supreme Court does not hear an appeal from appellants — they will continue work on their planned 368,000-square-foot casino. Slated to open in late spring 2017, the casino is expected to have 100,000-square-feet of gaming space, 2,500 slot machines, 80 gaming tables, 15 restaurants, bars and retail shops, and to create more than 1,000 jobs at the casino itself, plus 250 union-wage construction jobs.
