U.S. District Court Judge F. Dennis Saylor IV Tuesday issued a preliminary injunction that orders the Wampanoag Tribe of Gay Head (Aquinnah) to stop any work to turn its unfinished community center building into a gaming facility without first complying with the permit requirements of the town of Aquinnah, pending further order of the court.
Earlier this month, the tribe hired a contractor and said it planned to move forward with a plan to turn the 6,500-square-foot building, erected at taxpayer expense just off the entrance road to the tribal lands by two teams of Air Force reservists in 2004 and 2005 as a civil engineering community project, into a bingo parlor.
The tribe contends it does not need a building permit to proceed, because it meets federal gaming requirements.
On July 14, lawyer for the town of Aquinnah Ron Rappaport filed a motion for a temporary restraining order, and/or a preliminary injunction, against the tribe, the tribal council, and the Aquinnah Wampanoag Gaming Corporation in U.S. District Court.
The Office of the State Attorney General and the Aquinnah/Gay Head Community Association Inc. (AGHCA) filed motions in support of the town.
The preliminary injunction was a victory for the town and followed an hourlong hearing in federal court at which all sides squared off over the issues that will be fully argued in a hearing scheduled August 12 before Judge Saylor on cross-motions for summary judgement in the overarching case that began in December 2013, when Gov. Deval Patrick went to court to block the tribe from moving forward with a gaming facility on Martha’s Vineyard.
In federal court in Boston Tuesday Mr. Rappaport argued firmly that the tribe’s actions violated Aquinnah’s permitting procedures and neglected any observance of statutory building codes in an illegal renovation of an unused, derelict community center into a gaming hall.
Mr. Rappaport said the tribe had refused a town building inspection, and that current zoning for the facility does not include use as a casino.
Mr. Rappaport said that any change in the use and operation of the building must first be approved by the Martha’s Vineyard Commission.
“We care and have a public responsibility to care,” he said. “The tribe has the obligation to comply with us.”
Mr. Rappaport asked Judge Saylor to uphold what he called the status quo pending a final ruling on August 12.
Judge Saylor said, “I think the tribe argues that in effect, the Indian Gaming Regulatory Act [IGRA] trumps local permitting requirements.”
Mr. Rappaport said, “There’s a significant difference between pursuing the right and actually starting construction.”
Lawyer Scott Crowell, arguing on behalf of the Aquinnah Wampanoag Gaming Corporation, said the IGRA, a federal bill signed in 1988, gave the tribe the right to establish a licensed casino in town.
Mr. Crowell said that the town’s arguments that its inspection procedures protected public safety disguised its actual motives. “They’re using the building-permit issue to prevent gaming,” he said.
Mr. Crowell said the issue presently is not one of upholding a status quo that Mr. Rappaport named earlier, but of what Congress in 1988 believed was the status quo.
He also said that the tribe provides personnel to the fire department, and that historically Aquinnah has utilized grant money awarded to the tribe for the use of the municipality, including upgrades in the firehouse. He called the argument that the community center was not inspected by a qualified person “frustrating.”
Mr. Crowell said the tribe has met its responsibility to public safety, including the documented employment of a licensed, qualified state building inspector, just not one employed by the town.
“We’re looking to uphold the laws of town and the laws of the Commonwealth,” Mr. Rappaport said in counter-arguments.
Mr. Rappaport said that the town’s objection to the tribe’s efforts should not be characterized as a gaming issue.
Judge Saylor said the standards of the preliminary injunction had been met, and he believed the issue is quite narrow. He said he believed that public health and safety are independent of the gaming issue, but that the appropriate permits should be obtained for the hall in accordance with the town, thereby mandating an immediate postponement of all construction in the building.
In addition to the upcoming court hearing on August 12, a petition signed by 73 members of the tribe has set the stage for a vote by the tribal membership on Sunday, August 16, on whether to proceed with the bingo hall. Two earlier votes favored construction. In each case, mainland tribal residents turned the tide.
by Paul Rowley