Since February 2009, the Tohono O’odham Nation has been involved in a battle over its right to operate a Class III casino on land it owns at 95th and Northern avenues.
In a ruling July 25, Federal District Court Judge David Campbell concluded that the Arizona Department of Gaming and the Gila River Indian Community colluded to stop the Nation from opening the casino in the West Valley.
What ADG Director Daniel Bergin did to bring about the ruling by Campbell was share documents with GRIC attorneys. Court documents in the lawsuit brought by the Nation vs. Gov. Douglas A. Ducey (the state) were minutes from the San Lucy Council District of the Tohono O’odham Nation.
ADG spokesperson Amanda Jacinto said Bergin was working on a legal strategy and the papers were never intended by Bergin to go beyond that. Still, Jacinto defended Bergin and the ADG, when it came to whatever information was contained in the documents handed over by Bergin.
“We’re talking about public records,” Jacinto said. “If they had requested it, we would have given it to them, anyway. Even the reporter, if he had requested it, we would have given it to him. This is Director Bergin’s lawyers talking with Salt River tribe’s lawyers discussing the impact on that case. As far as Director Bergin, that’s where the information stopped. It’s all public record, but it was not Director Bergin’s intention they be used, except for legal analysis.”
Judge Campbell noted that the GRIC and ADG did not identify a “common legal interest.”
“True, they share a common goal of stopping the West Valley Resort, but this common interest is not akin to those shared by parties faced with or seeking to assert the same criminal or civil claims. Gila River has a strong commercial incentive to stop the West Valley Casino. Director Bergin’s interest is not commercial. As a state regular, he seeks to bar what he views as a fraudulently procured casino operation. Despite multiple opportunities to do so, Director Bergin has been unable to locate and the Court has not found, a single case recognizing a common interest privilege in similar circumstances.”
The Nation noted that “recognition of a common interest privilege in this case would constitute a significant extension of the doctrine.”
Judge Campbell’s ruling stated, “The Court cannot find in the roots of the joint defense privilege a reasonable basis for extending the doctrine to parties who merely share a common goal with no common legal interests.”
Judge Campbell went further in the ruling, stating, “The Court also finds troubling the notion that a state regulatory body could join in a privilege-protected partnership with one of the entities it regulates to thwart expansion efforts of another entity it regulates, whether or not the regulatory body has a valid basis for opposing the expansion. That appears to be what is happening here.”
The Nation brought to the court’s attention “relevant circumstances,” including the timing of vendor letters, the Gila River’s lobbyist’s involvement, and letters to the Congressional Budget Office and the Arizona Department of Liquor Licenses and Control. (Still on the Nation’s docket is the matter of a liquor license for its Class II casino at 95th and Northern avenues. Because both parties agreed to postpone a liquor board hearing, no date has been set for that procedure.)
The Nation has asked for summary judgment in its lawsuit against the state, and is scheduled to make that motion Sept. 23 in Campbell’s courtroom. The state’s response to the Nation’s motion for summary judgment is due Nov. 4. The Nation then has until Dec. 2 to reply to the state’s response.
A motion hearing has been set for 3 p.m. Dec. 14 in Courtroom 603, 401 W. Washington St., Phoenix, before Judge Campbell. Each side will be allowed 45 minutes for argument.
Nation Chairman Edward D. Manuel released the following statement regarding the recent ruling by Judge Campbell:
“The Nation shares the same concerns raised by Judge Campbell, and we are confident of a positive outcome in this case. We look forward to offering Class III gaming at our West Valley facility in the near future.”