State gaming agency will block W. Valley casino opening

The state has warned the Tohono O'odham Nation that it will block the tribe from opening a $200 million tribal casino under construction north of Glendale's Westgate Entertainment District.

Daniel Bergin, Arizona Department of Gaming director, informed the Tohono O'odham Nation in a letter late last week that he could not allow the casino to open based on "fraud perpetuated by (the tribe) upon the state, Arizona gaming tribes and the state's voters."

"Given this evidence ... I conclude that the (gaming agency) would exceed its authority if it were to proceed with any certification or approval processes relating to the opening or operation of (the tribe's) Glendale casino," Bergin wrote.

Gov. Doug Ducey supports that position and had requested the department deny approval for the casino.

In an April 8 letter to Bergin, Ducey wrote the tribe is attempting "to force a casino on the people of Arizona, rather than allow the legal process to play out.... It also appears to be a calculated risk by Tohono O'odham that ... they are building a structure that will never qualify for its intended purpose as a gaming facility."

But the director's statement, the latest in a volley of communications going back to early February, appears to be at odds with a previous letter from an attorney with his own agency and it drew an angry response from Tohono O'odham Nation Chairman Ned Norris Jr.

"I wasn't sure it was possible, but the opposition has stooped to a new low," Norris said in a written statement. "Unbelievably, the governor and ... Attorney General (Mark Brnovich) have put (the gaming agency) in an untenable position by instructing them to ignore the law."

The Tohono O'odham Nation is building the first phase of what is planned to become a $400 million casino and resort at Loop 101 and Northern Avenue. An opening for the first phase is planned by the end of December.

The tribe so far has prevailed in a five-year legal battle with the state and other tribes over whether the state gaming compact allows another casino in metro Phoenix.

In 2013, a federal judge ruled that the state's 2002 gaming compact does not explicitly prohibit more casinos in the Valley. That ruling is under appeal at the 9th U.S. Circuit Court of Appeals.

Now, the state is saying that the tribe committed fraud by not being upfront about its plans to build the West Valley casino while negotiating its gaming compact with the state, and that such action prevents the state from certifying a casino even if the tribe legally is able to construct it.

Prior to Ducey's letter, Maria Syms, legal adviser to Brnovich, told Bergin that his agency can deny the tribe certification of its casino based on the state gaming compact.

That opinion appears to conflict with a Feb. 19 letter from Roger Banan, an assistant attorney general for the state.

Banan, who represents the Department of Gaming, assured a tribal attorney that the department would follow federal law regarding the casino and "proceed in the normal course of business" to consider certifying the casino.

To grant a certification, the department does background checks of casino employees and vendors, and inspects gaming machines as part of a review that can take nearly two years in some cases.

Seth Waxman, a Washington attorney representing the tribe, said in a letter to Bergin Wednesday that the federal court ruling made it clear the tribe did not defraud the state in negotiations on the gaming compact.

The gaming agency "which calls itself an independent regulatory body — appears to have changed its position based on improper political pressure, not reasoned decision making," said Waxman.

In 2009, the Tohono O'odham Nation unveiled its plan to develop a casino in the West Valley on property it acquired as part of a federal land settlement. The state, Glendale and the Salt River and Gila River tribes objected to the casino and took legal action to halt the project.

Glendale ended its opposition to the Tohono O'odham casino last summer and reached an agreement that will pay the city $26 million over 20 years. The tribe broke ground on the $200 million first phase of the casino in August.

As the legal fight continues, some members of the Arizona Congressional delegation are pushing legislation to block additional casinos in metro Phoenix.

Tribal chairman Norris said the tribe and about 1,300 workers will continue building the casino.

"This latest political strong-arm tactic will not deter our efforts," he said.