By JEREMY HAY
THE PRESS DEMOCRAT
Foes of the casino proposed on Rohnert Park’s northwest boundary have been energized by a U.S. Supreme Court decision that creates new legal avenues for them to attempt to derail the project.
The decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak affirmed a Michigan man’s right to sue the federal government over its decision to take land into trust for a tribe that planned a casino there.
The Monday ruling also changed from 30 days to 6 years the length of time available to people to sue the government about such decisions. The Secretary of the Interior took the Graton Rancheria property into trust in 2010.
“That’s a huge, huge victory as far as we’re concerned,” said Mike Healy, a Petaluma Councilman who has authored several lawsuits challenging the casino project for the Stop the Casino 101 group.
A similar Stop the Casino 101 lawsuit was dismissed in 2010 by a court that ruled it premature.
The group in May sued the state over the agreement it signed with the Federated Indians of Graton Rancheria allowing the project to go forward. It contends that because the Graton Rancheria casino site was not historically sovereign Indian territory, the state still controls it, making the planned Las Vegas-style casino illegal.
Another lawsuit now is planned against the federal government, Healy said.
“It will be soon,” he said.
The lawsuit against the state is pending, but Sonoma County Superior Court Judge Elliot Daum denied Stop the Casino 101’s request for a temporary restraining order to prevent work on the project from starting.
Experts in Indian law agree that the Supreme Court decision gives opponents additional options as they continue years of legal attempts to stop the casino from rising on 254 acres just south of Home Depot.
“This opens a door that was not previously open to sue the Department of Interior, to claim that accepting of the land into trust was arbitrary or capricious and an abuse of discretion,” said Tony Cohen, a Santa Rosa attorney.
However, Cohen and other Indian and gambling law attorneys say there are significant differences between the Michigan tribe’s circumstances and the Graton Rancheria’s situation.
The most important, they said, is that the Michigan case alleges that the Secretary of the Interior broke the law and exceeded his authority when he took the land into trust in 2005.
In the case of the Graton Rancheria, the tribe was restored by an act of Congress, after which, on Congress’s order, the Secretary of the Interior took land into trust for it.
“Here, it’s Congress that specifically said that you must take land into trust,” Cohen said. “In this particular case, that claim (in Michigan) is completely irrelevant.”
Others note that the court decision did not assess the arguments David Patchak advanced in his 2008 lawsuit. Patchak sued the government saying it wrongly took land into trust for what is known as the Gun Lake Tribe because the tribe was not recognized when a 1934 law governing trust issues was passed.
The tribe in 2011 opened a casino financed and managed by Station Casinos, the Las Vegas-based backer of the Graton Rancheria project.
A lower court rejected Patchak’s lawsuit, a decision then reversed on appeal. The Supreme Court upheld the latter ruling.
“The Patchak decision did not reach the merits of the claim; it was a procedural question,” said George Forman, whose San Rafael firm focuses on American Indian law.
Still, the opening lays the groundwork for precisely what Stop the Casino 101 has not yet had: a hearing on the strength of their arguments, which some other experts have said are both novel and well-constructed.
“What we’ll be left with is dealing with the substantive arguments that we’ve been wanting to present in court now for several years now,” said Healy.
Station Casino’s representatives said they do not expect the ruling to alter the progress of the 3,000-slot casino project in Rohnert Park, which broke ground on Monday and is projected for completion late next year.
“We are disappointed,” said Scott Nielson, the company’s executive vice president and chief development officer. “We don’t believe, however, that the Patchak case will have any negative impact on the Graton Rancheria project.”
One factor, said Heidi McNeil Staudenmaier, a partner at Snell & Wilmer Indian and Gaming Law Practice in Phoenix, is that it will probably be “several years” until the merits of the Patchak case are decided. By then, the Graton casino will likely be open and a court would be unlikely to act against it.
“From an equities standpoint, it will make it more difficult to try and shut down the casino,” she said.
(You can reach Staff Writer Jeremy Hay at 521-5212 or email@example.com.)