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Casino Suit: Dianne Bennett of Citizens for a Better Buffalo Provides an Update

In late March, the Seneca Nation of Indians and Seneca Gaming Corp. unveiled a re-designed $130 million Seneca Buffalo Creek Casino on the Nation’s 9.5 acre territory in the Cobblestone District.  When complete in the summer of 2013, the new casino will replace the current, slots-only casino that opened on the territory in 2007. The new design features a main stone-faced building containing the newest and highly popular slots, table games and a small, American-style restaurant and bar facility.  Surface parking and a  four-story parking ramp are also planned.

Citizens for a Better Buffalo remains opposed to a Buffalo casino and is challenging its legality.  Dianne Bennett, president of Citizens for a Better Buffalo (CBB), provides an update on the lawsuit.

What is the status of case?

There are three cases.  Judge Skretny has already ruled in the plaintiffs’ favor in two previous cases – that the approvals (gambling ordinances) issued by the National Indian Gaming Commission (NIGC) purporting to allow the Senecas to operate the casino in downtown Buffalo were illegally issued. The NIGC has appealed those rulings to the US 2nd Circuit Court of Appeals. The 2nd Circuit has put those cases on hold while Judge Skretny deals with the legality of yet a third ordinance approved by the NIGC that CBB also has challenged.

Judge Skretny ruled in favor of the plaintiffs in the prior cases and specifically held in his second decision that the land on which the proposed casino is located was not eligible for gambling because the federal law (The Indian Gaming Regulatory Act a/k/a IGRA) that allows some gambling by Indian tribes prohibits gambling on land acquired by an Indian tribe after 1988, when IGRA was enacted.

citizensbetbuff2.pngThis piece of land in Buffalo was not acquired until 2005, long after IGRA’s enactment. Judge Skretny ruled that to permit gambling on such land would be at odds with Congress’s clear purpose and he also ruled that the Senecas must “forthwith” cease gambling on the Buffalo parcel.

Yet, after the second decision against the NIGC and the Senecas, the Federal Government issued new regulations completely reversing existing law (and the Fed Gov’t’s repeated prior positions).  Based on that 180° reversal, NIGC issued their third approval, which they used to temporarily allow the Senecas to continue gambling until Judge Skretny rules yet again. CBB contends that the Government did not have the power to defy Congress and amend the law by regulation, and that Judge Skretny’s prior ruling that the prohibition applies to this land remains the law of the land.
CBB intends to make a motion shortly to declare the third ordinance and the regulations on which they were based illegal, but, before doing so, CBB is awaiting a ruling on its motion to require the Government to disclose the extent of the involvement in the Government’s decision-making process by Edith Blackwell, who worked for the Department of the Interior specializing in Indian affairs, is married to a partner in the law firm representing the Senecas, and (although the Government denies her involvement in the reversal) was the principal drafter of the post-hoc rationalization of the reversal of the Government’s position, a reversal sought by her husband’s law firm.

Until now the Government has refused to divulge the full extent of that involvement. CBB contends that Blackwell should not have been involved in any of the deliberations that dealt with the approval of the third ordinance because of her obvious conflict of interest. CBB’s motion is directed at determining the extent of her involvement and the effect that had in the government’s bald face attempt to reverse its regulatory position to clear a path for the Senecas to conduct gambling.

Once the Court rules on these motions, it is likely the losing party will pursue an appeal to the US 2nd Circuit, and that that appellate court will consolidate that appeal with the other two still on hold.
Why is CBB pursuing this?  Economic, moral, bad location, other?

CBB is pursuing this case because of 1) the rule of law, and 2) economics.  First, the machinations used to continue Seneca-sponsored gambling in downtown Buffalo are a pernicious attempt to circumvent the law and reach a pre-determined end, and, in the process, completely circumvent the intent of Congress.   Second, based on all independent economic analysis, a downtown casino would drain money out of Buffalo.  This downtown casino would be a disincentive to Buffalo development.  Every independent study (see Grinnols, Siegel, Partnership for the Public Good, for example) clearly demonstrates that.

CBB does not take a position on the morality of gambling.  We do take note that the location of the casino in this case is particularly devastating because it is next door to public housing and in one of the poorest census tracts in the State.  The money flowing into the casino is coming principally from the poor of Buffalo.

Is CBB also concerned about the State’s recent efforts to legalize seven new casinos- perhaps even in Buffalo?  Will you fight any new casinos in Buffalo?

CBB’s mission is to stop the operation of casino gambling in downtown Buffalo based on its illegality.  We have decided at this time not to extend our mission beyond that.
What about the argument that gambling is here- at the racetrack, in Niagara Falls, and elsewhere?  Why shouldn’t Buffalo host a casino and get some of the benefit?

The type of casino proposed here is designed to capture people, entertainment and money in a closed environment.  It will put other businesses out of business (as independent economic studies demonstrate).  It is a devastating economic model for all but the casino owners.  Niagara Falls is certainly no model for city development.  We look at Niagara Falls, Detroit, Atlantic City.  Where are these cities?  We are trying to prevent the same fate for Buffalo.
Has Buffalo been hoodwinked?  Have the Senecas lived up to their compact terms and promises?  Any idea on the percentage of local gamblers in the downtown casino?

The government of the City of Buffalo has been treated like a non-entity since it gave the Senecas Fulton Street and infrastructure.  The City has done nothing but lose money in this so-called agreement.  The SNI (Seneca Nation of Indians) clearly have not lived up to that agreement, and apparently have no intention to do so.  They roll out plan after plan without any renegotiation with the City.  It’s a one-sided, unilateral operation that violates many laws.

The SNI do not release any figures on their operations, and now that they no longer file documents with the Securities and Exchange Commission, the citizens of Buffalo have no way of knowing what the economics of the operations are.  It appears the City has totally neglected its obligation to obtain data from the SNI, and the SNI certainly has not volunteered it.  From everything we saw in prior SEC filings and from observations by those who have visited the site, gambling is virtually all local.  There is little or no tourism in the existing or planned casino operations.
What do you envision happening if Sketny rules the casino is illegal?  Does the casino close immediately?  Gets appealed to a higher court?  What about the land?

See the answer to the first question above.


newcasino.jpg Any comment on the new design and plans for only a small restaurant and no hotel so as to “benefit” the city?
First, the new design violates the SNI agreement with the City.  Second, there is no commitment to containing this casino.  Third, it is designed so that people never have to venture outside – they park there, and never leave.  The idea that casinos “benefit” a city has been disproved time and again.  Buffalo should not want the fate of Detroit.
When the compact between the State and Senecas expires- what then?  Will there be a campaign to urge the State and City not to renew?

CBB’s understanding is that the parties are committed to renegotiate in good faith.  But given that the SNI has never involved the City in its constant reworking of its plans, CBB believes the City should take the position that the SNI gave up good faith negotiation long ago.  Certainly CBB would support a campaign that there be no renewal of the compact – it’s a bad deal and now even the politicians seem to be seeing the light on that – since none of them showed up at the last rollout of yet another SNI “grand” plan  – perhaps just more rusting steel girders?  How much evidence of decay and destruction do the politicians need? 

Written by WCPerspective


Buffalo and development junkie currently exiled in California.

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