A federal judge on Thursday rejected a request from a southern Arizona tribe that he order state officials to issue certificates allowing a tribal casino to open near Glendale. But the tribe still plans on opening the facility in December with slot machines that don't require the state's approval.
U.S. District Judge David Campbell refused to issue a preliminary injunction forcing the Arizona Department of Gaming to stop trying to block the Tohono O'Odham Nation's new resort near Glendale.
The judge found that the tribe hadn't shown that it would suffer irreparable harm, in part because it plans to open the casino using bingo-style machines that the tribe's consultant said will be just as profitable as gambling authorized under a full casino license.
"The Nation asserts that the state's actions will cost it substantial sums of money, and that the money constitutes irreparable harm because it cannot be recovered from the state due to sovereign immunity," Campbell wrote. "The court finds, however, that the Nation has not shown that (the) actions will cost it substantial sums."
The judge allowed part of the tribe's lawsuit against Gaming Department Director Daniel Bergin to proceed while dismissing Gov. Doug Ducey and Attorney General Mark Brnovich as defendants. The judge also dismissed a part of the lawsuit that argues that the state can't regulate "Class II" bingo-style gambling, which state attorneys concede. The tribe argues letters from the state to vendors have caused them to be afraid to work with the new casino.
The judge said he needed more information on whether the state is violating the deal it made in the 2003 agreement that regulates tribal gambling in Arizona by refusing to issue a full casino certification and plans to set further hearings on that part of the lawsuit.
Lawyers for the tribe say the $200 million casino will open in December with bingo-style machines. But the Tohono O'Odham Nation's new West Valley Resort won't be allowed to have regular slot machines or many card or other games allowed under a full casino license the state has refused to issue.
Bergin told the tribe in April that he would not certify the new operation as a casino. Bergin took the position at the urging of Ducey and Brnovich.
Ducey said in an April 8 letter to Bergin that the tribe engaged in fraud because it didn't disclose its plans for a casino in the Phoenix area while negotiating a gambling compact with the state. He also said the state might consider cancelling its entire gambling compact with the tribe.
The Tohono O'Odham tribe noted that the state conceded it can open the facility with the 1,000 bingo machines it plans. "The Nation is comfortable with the court's decision today and we remain confident that the court will ultimately rule in our favor," Chairman Edward Manuel said in a statement.
Opponents of the casino, including other tribes, say a 2002 gambling compact with the state prohibits new casinos from opening in metropolitan Phoenix. A 2013 court decision from Campbell that's currently under appeal says otherwise.
"For years, the Nation has claimed that their position is invincible in court," Gila River Indian Community Gov. Stephen Roe Lewis said in a statement. "The judge's ruling shows otherwise, handing the Tohono O'odham a clear loss and changing the momentum of this case."
The Tohono O'Odham currently operates full casinos near Tucson.
The tribe bought the site after receiving a $30 million federal settlement to replace nearly 10,000 acres of ancestral reservation land damaged by a dam. It unveiled its plans for the massive resort and casino near the University of Phoenix stadium in 2009.