A federal judge has slapped down much of the effort by the state to force the Tohono O’odham Nation to produce more documents in Arizona’s fight to stop the tribe from opening a new casino near Glendale.
In a broad-based order, U.S. District Court Judge David Campbell rejected several demands by the Attorney General’s Office for more disclosure from the tribe. The judge said some of the state’s requests were overly broad while others were outright “overly burdensome.”
But the judge said the state is entitled to some information the tribe did not want to cough up, including audited financial statements and estimates of what the Tohono O’odham could earn from the project if casino-style gaming is prohibited.
The effort by the state to demand more documents comes as the tribe has asked Campbell to rule that Arizona has no legal right to block the tribe from opening its proposed casino as scheduled later this year despite.
Attorneys for the state insist they need the information for a hearing set for September. But Campbell said much of what the state insists it needs is unnecessary, at least at this point.
Campbell has previously sided with the tribe in multiple lawsuits designed to kill the project.
Now state Gaming Director Daniel Bergin, at the behest of Gov. Doug Ducey, is trying a new tactic to kill the casino: Claim that the tribe engaged in fraud in 2002 when the state and officials from tribes around the state negotiated the terms of a deal that gives the tribes exclusive right to operate casinos in exchange for a share of the revenues.
Bergin contends that the nation is guilty of fraud because it never disclosed during negotiations that it was interested in opening a casino far from the traditional reservation even as it was looking to purchase land near Glendale. He said that makes the tribe legally unfit to conduct gaming operations.
The tribe sued last month, asking Campbell to declare the state’s latest action illegal. The state has responded by demanding more information from the tribe.
For example, one seeks supporting documentation for the assertion by the tribe that roughly 40 percent of those who would be employed at the casino and associated resort would be Native American, with three-quarters of those being members of the Tohono O’odham Nation. The tribe responded with its own reports of expected hiring and recent data of tribal members at other casinos.
Campbell said that was sufficient and rejected the state’s demand for more.
“If taken literally, (it could) require plaintiff to search a vast array of documents concerning tribal employment patters generally and employment details at other casinos,” the judge wrote.
The judge was no more inclined to force the tribe to produce all documents and studies about impacts the casino will have on Maricopa County.
“Read literally, it would call for thousands of documents that relate in any way to impacts the casino could have on surrounding lands, businesses, cities, safety, infrastructure, the environment, etc.,” Campbell wrote.
And he rejected the state’s request for more data on the tribe’s contention of how much it will lose if it cannot operate casino-style gaming on the site.
The tribe has produced non-privileged reports prepared by outside consultants projecting income and expenses for the project, going back to 2009 when plans were first announced. And tribal lawyers pointed out that the Department of Gaming itself has public reports showing that casino in Arizona generated more than $1.8 billion a year, or more than $75 million per casino on average.
But Campbell did order the tribe to produce any estimates it has of what will happen if he rules it cannot operate casino games on the site. That would limit it to things like bingo which the state cannot forbid.
And the judge also agreed the state is entitled to copies of the tribe’s complete audited financial statements going back to 2009.
All those must be turned over by noon on Wednesday.
Mia Garcia, spokeswoman for Attorney General Mark Brnovich, said her office has no comment on Campbell’s rulings. But she said her agency remains “confident in our case.”
Campbell has previously ruled in favor of the tribe in several other lawsuits, including one which argued that the planned casino runs afoul of that 2002 contract and voter-approved.
The judge said it may very well be that voters – and even Jane Hull who was governor at the time – were led to believe that casinos would be located only on existing reservations. And the Tohono did not acquire the land until after the vote; it did not acquire reservation status – a precursor for casino gaming – until last year.
But the judge said the contract negotiated and signed by state officials gives the tribe the right to do exactly what it is planning.