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Judge revokes permission for city casino Rules federal commission failed to consider whether property qualifies as 'Indian land'

A federal judge Friday threw a huge roadblock in front of plans by the Seneca Nation of Indians for a Buffalo casino, ruling that a federal agency erred in 2002 when it approved the proposal and, therefore, must reconsider its decision.

While the Senecas say they hope to begin operating a temporary casino in the city in April, the ruling by U.S. District Judge William M. Skretny will prevent the casino from opening until the National Indian Gaming Commission reconsiders its ruling that permits gambling on land the Senecas bought in Buffalo.

Casino opponents said Skretny's ruling will prevent the Seneca Buffalo Creek Casino from ever opening, but the Senecas issued a statement saying they were confident the new federal review eventually would allow the project to go forward. In the meantime, the tribe said, construction will continue on the casino site east of HSBC Arena.

In the 45-page ruling, Skretny threw out the commission's approval of the tribe's gambling ordinance and ordered the commission to reconsider whether gambling can be conducted on the lands purchased by the Senecas. The judge said the commission's chairman failed to properly examine whether the property can be legally considered "Indian lands," where a casino can be operated.

"[The] court has no basis upon which it can conclude that the chairman's approval of the ordinance was the result of reasoned decision-making," Skretny wrote. He said the commission acted in an "arbitrary and capricious" manner.

Casino opponents were ecstatic about Skretny's ruling.

"It's a very positive decision for us," said Joseph M. Finnerty, attorney for a group that challenged the legality of the casino. "As it stands now, the Seneca Nation cannot conduct gambling in Buffalo, period. The federal defendants and the Seneca Nation gambled on Buffalo, and they lost."

But the Senecas said they hadn't lost yet.

In a statement, Seneca Nation President Maurice A. John said, "We understand that further federal review is forthcoming, and we are confident that the National Indian Gaming Commission will reach the same conclusion that the U.S. Department of the Interior and the U.S. Department of Justice have already reached that, as a result of how they were acquired, the lands in question are indeed Seneca lands again."

Preparation work has been under way for more than two months on the site at Michigan Avenue and Perry Street, which was once part of a Seneca reservation that covered much of Erie County.

The tribe purchased that land under the 1990 Seneca Nation Settlement Act, which resolved a lease controversy about Indian land in Salamanca. The act, adopted by Congress, allowed the Senecas to buy land in or near territory the tribe originally occupied.

But under federal law, the National Indian Gaming Commission had to approve an ordinance before the Senecas could build a gambling facility.

The commission took action Nov. 26, 2002. But in a lawsuit filed a year ago, casino opponents argued that the land did not meet the definition of "Indian lands" set in the 1988 federal law regulating tribal gambling.

In Friday's ruling, Skretny noted that "prior to approving an ordinance, the [commission] chairman must confirm that the site of proposed gaming is Indian lands."

If it doesn't qualify as Indian land, the commission can't approve a tribe's proposed gambling ordinance, he added.

The judge ordered the federal agency to review the Seneca gambling ordinance once again and determine whether the site qualifies as Indian land.

But whether Skretny's ruling will kill the $125 million casino project or simply slow it down remained unclear.

"If it's a bump in the road, it's an enormous one that will be difficult to overcome," said retired Rep. John J. LaFalce, D-Town of Tonawanda, who has been one of the leaders of the fight against the casino. "I'm not ready to declare 'Mission Accomplished' just yet."

Erie County Executive Joel A. Giambra, nevertheless, declared the casino dead.

"Today is a historic day. There will be no casino in the City of Buffalo," he said.

Many people in the area do support a Buffalo casino. A poll commissioned by The Buffalo News last February found that 55 percent of city residents felt the casino would be good for the city, while 45 percent opposed it. A poll commissioned by the Senecas over the summer produced similar results.

Buffalo city officials, who have strongly supported the project, warned against reading too much into the ruling.

"Judge Skretny did not make any determination as to whether gaming could be prohibited in Buffalo, and he did not stop construction of the proposed casino," said Alisa Lukasiewicz, city corporation counsel.

John, the Seneca's president, added, "While we continue to review today's decision, we are pleased that the plaintiff's motion has been dismissed."

Indeed, Skretny threw out the lawsuit filed by Citizens Against Casino Gambling in Erie County and other casino opponents, saying the issues raised in it are "moot" because the federal government now has to reconsider the casino project.

Finnerty said casino opponents can file a new lawsuit if the commission again decides to allow a Buffalo casino.

"I'm telling you that the commissioner has no legal basis on which to make a determination that these are Indian lands," Finnerty said. "And if they do make that determination, we'll see them back in court."

Their original federal lawsuit argued that the project would have "negative environmental, health and social consequences" for the city.

Casino opponents also got some good news in a related case in the state courts.

A state appellate court agreed to speed an appeal of a lower court ruling that allowed the sale of city-owned land to the Seneca Gaming Corp.

The land, a two-block portion of Fulton Street, is considered essential to the Senecas' plans for the casino complex.

"We're encouraged that the appellate division has acknowledged the importance of this issue to the community," said Robert E. Knoer, a lawyer for anti-casino forces.

The Appellate Division of State Supreme Court in Rochester will review the lower court ruling rejecting the anti-casino group's bid for an injunction.

The appellate tribunal will hear oral arguments Feb. 22 and is expected to issue a ruling shortly thereafter. The city approved the sale last year, and title to the land has been transferred.

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