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Joyce Clark Unfiltered

For "the rest of the story"

Disclaimer: The comments in this blog are my personal opinion and may or may not reflect an adopted position of the city of Glendale and its city council.

I belong to an online site called nextdoor.com . This site connects neighbors to neighbors within their neighborhood as well as connecting nearby neighborhoods to one another. You can post general messages, want ads, items for sale, event notices, etc. It’s a great site and I urge you to check it out.

The other day this question was posted, “Does anyone know any updates on casino? It seems like it is in a standstill with moving forward with construction.”  It was posted to 41 neighborhoods in my general area on April 26, 2017. It was as if a bomb had gone off. It generated more replies than any other issue I have seen lately. There was not only a great deal of misinformation posted but there were replies like, “Which casino sorry Glendale?”

It’s time to offer an update on the TO casino. As of today, May 6, 2017 the last Arizona District Court minute entry was posted on February 10, 2017, 3 months ago, “MINUTE ENTRY for proceedings held before Judge David G Campbell: Telephone Conference held on 2/8/2017. Plaintiff State of Arizona request a 45 day extension of the response to 263 MOTION for Attorney Fees . Discussion held. Request granted. Response due 3/31/2017 .”

As you can see from this minute entry there are procedures and pre-trial motions that must be adjudicated (settled) before a bench trial before Judge Campbell may begin. It could be months before the case is argued before the judge. In other words, it’s at a standstill.

This case revolves around the Tohono O’odham’s (TO) attempt to get a Class III license from the State of Arizona. Until this case is settled there will be nothing but bingo (and no liquor) at the Desert Diamond Casino located on a county island in the midst of Glendale, just north of the Westgate area. The temporary casino located in the Tohono O’odham’s warehouse facility will continue as the only operation on the site. Those who have visited this casino are quick to point out that it’s not on a par with Talking Stick Casino and Resort. Factually, it will never be a Class A facility unless the TO get their Class III license. Will that occur? Only Judge Campbell will have the answer when he rules on the current case before him.

Here is the comment from a local resident who used to work at this casino, “They also want to build another one up here somewhere (on the Glendale site). I don’t remember exactly but…on the east side (of the site). I think… they are fighting for both now. When it opened they told us one year to the day we would be walking into the new one. Well that passed Dec 20th.”

This resident’s comment sparked a new round of replies, “For me it was just a crappy sneaky deal all around. As I know the facts, it was a Federal land swap. The feds didn’t ask or didn’t want to ask or didn’t care to ask what their plan was for the property and didn’t put casino restrictions on it, right across the street from the high school, and didn’t inform the local government. Everybody dropped the ball letting the tribe do whatever. I don’t know what the Grand plan and or timeframe, but if they turned the entire property into a family friendly resort with pool, water park, rides, par 3 golf, hotel, etc……. I don’t have an issue with the casino.”

Or this comment, “I’m wondering if the City of Glendale was notified. Isn’t that property within the city limits? If so??? I also wonder what land did the Fed’s swap? The issue for me is if all the tribes signed an agreement not to develop a casino in an urban area and this tribe somehow managed to have the land swapped and designated as tribal land they should not be granted a full gambling license. Just my opinion.”

I must offer a little history in answer to these comments. In 2001 the state began negotiations with all Arizona tribes to craft a gaming compact. At the same time (2001-02) the Tohono O’odham were already land shopping in urban areas of Maricopa County. They formed a shell company, Reiner, which purchased the land in Glendale. This purchase was kept secretly while the TO participated in the negotiations and paid for publicity pamphlets asking voters to approve the Gaming Act of 2002. It wasn’t until the TO publicly announced their intention in 2009 (7 years later…7 years a secret closely guarded) to build a casino on a county island within Glendale that the public or Glendale knew of their plans.

It was not a federal land swap per se. The Gila River Act of 1985 allowed the TO to purchase land in Maricopa County because the federal government had flooded their land when it built a new dam. It made the TO’s land unsustainable for agriculture. No one, except the TO, believe that it was legal to purchase land for a casino in an urban area rather than adhering to the intent of this law which was to acquire useable agricultural land to replace lands that were lost to flooding.

Glendale joined in lawsuits with virtually every Tribe in the state to fight the TO casino…until August of 2014. The city sold its soul for 30 pieces of silver. It entered into an agreement with the TO agreeing to withdraw all official opposition to the project, and would adopt a new resolution expressing support for the Tohono O’odhams’ acquisition of the property and for the casino. 

The Tohono O’odhams, in exchange, would pay for any infrastructure improvements needed in the area to accommodate the additional traffic the casino would generate. It would also give Glendale a one-time payment of $500,000, and annual payments of $1.4 million, which would increase by two percent a year.

As a Glendale city councilmember it is my obligation and duty to uphold Glendale policy. If the TO were to come to the city I have a duly sworn obligation to give them a full and fair hearing without bias. This, I would endeavor to do. On a personal level that doesn’t mean I agree with or even like this agreement.  For I do not.

Another resident comment expressed, “They won’t start building until they get a class 3 license. It is supposed to go back to court in May. The state is still fighting the casino. The state needs to give it up and let them build. They are wasting taxpayers money by fighting it.” Many feel this way but they are willing to overlook the deception and extreme breach of ethics by the TO in dealing with the state and its sister Tribes during the gambling compact negotiations and during the effort to gain voter approval for the compact in 2002. These stakeholders believe the TO lied to them by having secretly already purchased land for a casino in an urban area and that is a very difficult bridge to repair. It’s an action that is precedent setting and puts every Valley city in peril for who is to say which city will become the next host to a tribal casino?

One resident offered this link to a study on the economic impact of tribal casinos. It’s a good read:

http://www.uwyo.edu/shogren/gaming%20and%20casino%20economics.htm . Finally, I end with this resident’s comment on casinos, “Casinos are, in my opinion, a tax on people bad at math. You know who you will never see in a casino? Warren Buffet, Bill Gates, Charles Koch, Michael Bloomberg, Jeff Bezos, Larry Ellison, Mark Zuckerburg… or any of the other richest people in the USA. Because they understand math better than most of us.” Maybe it would help if we all got better at math.

© Joyce Clark, 2017               

FAIR USE NOTICE

This site contains copyrighted material the use of which is in accordance with Title 17 U.S. C., Section 107. The ‘fair use’ of any such copyrighted material as provided for in Section 107 of the US Copyright Law and who have expressed a prior interest in receiving the included information for research and educational purposes. For more information material on this site is distributed without profit to those who have not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democratic, scientific and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such material. For more information go to http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use,’ you must obtain permission from the copyright owner.

An alert for residents living along 83rd Avenue and 91st Avenue from Camelback Road to Bethany Home Road regarding the Planned Area Development application called Stonehaven. The applicant has submitted a revised Stonehaven development plan and has scheduled a formal Neighborhood meeting:

Wednesday, January 11, 2017 at 6:00 PM

Sunset Ridge Elementary School Cafeteria

8490 West Missouri Avenue, Glendale, Arizona 85305

The Glendale City Planner handling this case is the Glendale Planning Director, Jon Froke. He can be reached at 623-930-2585 or by email at jfroke@glendaleaz.com. Mr. Froke can answer your questions regarding the city review and hearing processes as well as the staff position once their report is complete. Below is a depiction of the Planned Area Development Land Use Master Plan. It is disappointing as the applicant is asking for more density while refusing to plan for large lots south of the Grand Canal and adjacent to Missouri Ranch (comprised of 10,000 SF lots). The largest lot size being proposed by the applicant is 7,000 SF. The applicant appears reluctant to listen to resident’s concerns about small lot sizes devaluing the property values of those who live near the proposed development.

 

 

 

 

 

 

 

 

 

I urge you to attend this meeting especially if you live in Missouri Ranch; 8300 to 8600 W. Cavalier Drive; Pendergast Estates; Camelback Park, and all areas on the east side of 83rd Avenue including Orange Drive and Montebello Avenue.

Casino Issue not settled as U.S. District Judge David Campbell denied the Tohono O’odham’s (TO) request that he rule in the tribe’s favor without going to trial. Judge Campbell said he needed more information about allegations of fraud on the part of the Tohono O’odham. The trial will be scheduled sometime between April and August of 2017 making it a full year since June of 2016 when the Tohono O’odham filed suit against the state for its refusal to grant the tribe a Class III gaming license.

In the meantime Governor Ducey attempted to settle the case out of court by proposing to grant the TO a Class III gaming license in return for its promise to build no new casinos in the Phoenix Metro area. That overture was rebuffed by the TO and seems to signal that the TO may have plans for another casino in the Phoenix area. Could they have once again purchased land secretly betting that they can get their Class III gaming license without promising to build elsewhere in the Valley? I would think any Valley city with county islands should be very, very nervous. Here is the link to a December 19, 2016 story in the Arizona Republic: http://www.azcentral.com/story/news/local/glendale/2016/12/19/dispute-over-desert-diamond-west-valley-casino-heading-to-trial/95634944/ .

Tax increment financing for the Coyotes new arena is by no means guaranteed passage in the Arizona Legislature. Rather than granting tax increment financing and incentives for the Coyotes the legislature would be well served to assist the Arizona Sports and Tourism Authority (AZSTA) in crafting new revenue streams for the sagging revenues it currently receives. The Authority has only paid out $49.2 million dollars in reimbursements toward a total of $220.7 million dollars owed to various Valley cities for their ballparks facility construction/renovation.  AZSTA has commitments to reimburse Surprise, Tempe and Scottsdale by 2007 and now estimates those repayments will not be completed until 2021. Mesa, Peoria, Phoenix, Glendale and Goodyear are not expected to receive their reimbursements until 2031 and beyond. Better the legislature develop a fix that enables AZSTA to meet its commitments for those facilities already constructed by a vast array of Valley cities struggling to find the money to pay off their debts for construction. Here is a link to the state’s latest audit of AZSTA: http://az-sta.com/downloads/files/financial/2015-special-audit-by-the-office-of-the-auditor-general-full-report.pdf . Below is a chart (page 23) from that AZSTA audit:

 

 

 

 

 

 

 

 

 

 

Anthony LeBlanc, CEO of the Coyotes, acknowledged that the legislature is “essential” for their plan. You can be sure they are already lobbying members of the state legislature. However, in past years Valley cities have also lobbied for Tax Increment Financing (TIF) only to be denied repeatedly. One of the plans floated last year by the Coyotes involved capturing portions of sales and/or tourism tax revenue in a tax district created in the area of their proposed arena. The Coyotes will have a difficult time pushing to the head of a line that relies on tourism sales tax revenues. The legislature would be well advised to create a financial fix for those facilities already in existence rather than diverting scarce resources to yet another new sports facility. The subsidization of sports teams and their venues is not a popular public topic when people are still hurting financially and have not derived economic benefits from the national recovery. Here is a link to a Mike Sunnicks article in the Phoenix Business Journal about the Coyotes plan to have the taxpayers and tourists subsidize their proposed arena: http://www.bizjournals.com/phoenix/news/2016/12/02/arizona-coyotes-arena-real-estate-group-eases.html

 © Joyce Clark, 2016        

FAIR USE NOTICE

This site contains copyrighted material the use of which is in accordance with Title 17 U.S. C., Section 107. The ‘fair use’ of any such copyrighted material as provided for in Section 107 of the US Copyright Law and who have expressed a prior interest in receiving the included information for research and educational purposes. For more information material on this site is distributed without profit to those who have not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democratic, scientific and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such material. For more information go to http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use,’ you must obtain permission from the copyright owner.

It has been 18 years and 42 days since the city’s pledge to build the West Branch Library.

In reviewing documents related to the casino I came across an issue about which I had previously not paid much attention. In the transcript of the December 7, 2015 oral arguments before the U.S. Court of Appeals for the Ninth Circuit in the case of State of Arizona vs. Tohono O’odham Nation the judge asked both sides a series of questions. Here is the link:  http://cdn.ca9.uscourts.gov/datastore/media/2015/12/07/13-16517 .

At issue is the ability of the Tohono O’odham Nation (TON) to place all of its permitted casinos on unincorporated land (county islands) in Maricopa County. Pratik Shah, attorney for the Gila River Indian Community, said on page 4, “under their (TON) reading, they could simply move all four casinos to Phoenix because Phoenix is 50 miles outside of Tucson.”

On page 8 of the transcript Seth Waxman, attorney for the Tohono O’odham Nation (TON) stated, “Mr. Shah is quite correct that in general what the compact says is, the nation may game on any of its Indian lands including lands covered by Section 2719.”

Further evidence of the TO’s very likely intent to locate all of its casinos in the Phoenix Metropolitan Area can be found in the March 16, 2012 deposition of Daniel Quigley, a TON attorney who has represented either the TON or its entity, the Tohono O’odham Gaming Enterprise, almost continuously since 1993. His deposition was taken with regard to one of the numerous lawsuits. In this case, it was the State of Arizona vs. Tohono O’odham Nation.

A small tutorial on lawsuits is in order. Attorneys for either side can file motions asking that something be included or excluded or for a continuance. Prior to the actual trial there is a discovery phase. Each side can request documents and take preliminary testimony from potential witnesses in the form of a deposition. The attorney representing the side that requested the deposition does the questioning.

Mr. Quigley negotiated the state gaming compact on behalf of the TO. Since 2003 he has been general counsel of their gaming enterprise entity. When he joined the law firm of Rushing Lopez & Lizardi, PLLC., the TON followed him and is currently a client of this firm. He is also the attorney for Rainer Resources, a wholly owned TO entity. It was Rainer Resources which bought the land in Glendale in 2002 and held it until the TO made their 2009 public announcement of their plans to develop a casino in Glendale.

Mr. Quigley grudgingly gave up information and often claimed attorney-client privilege. However, some of his answers were very telling. On page 19 he is asked if the TON owns other properties. Based upon the following line of questions it appears that the TON already does own additional properties. The 64 dollar questions are where? On county islands? How many? That is information the TON did not and will not give up.

  1. Q. “Other than what I’ve already asked you about,  are there any other fee lands that the Nation has an interest in?”
  2. A. “Yes.”
  3. Q. “What are those?”
  4. A. “I am aware of the property that we’ve been referring to as the West Valley Resort property in this litigation.”
  5. Q. “Anything else?”
  6. A. “I’m sure there are, but I’m not familiar with them.”
  7. Q. “How can you be sure there are if you don’t know specifically what properties they are?”
  8. A. “My best guess is that the Nation owns additional real estate beyond those.”
  9. Q. “And what do you base that on?”
  10. A. “I believe in the past, I’ve seen records of fee ownership of land.”
  11. Q. “How many additional pieces of real estate, approximately, do you believe the Nation owns?”
  12. A. “I don’t know.”
  13. Q. “How many have you seen records of?”
  14. A. “I don’t know.”
  15. Q. “Can you give me an approximate number?”
  16. A. “A couple.”

Another line of questioning on page 65 deals with the Tohono O’odham never specifically mentioning the possibility of acquiring additional land in the Phoenix metro area to be put into trust for the purpose of gaming during the time that voter approval was sought for the state compact.

  1. Q. “Because everybody knew that casinos had to be located on the Indian lands of the tribe, and the tribe had specific Indian lands in the vicinity of Case Grande, Florence, and Gila Bend. And I’m asking you, when you referred to each of those three areas, did you mean to be referring specifically to Indian lands that the tribe already had in trust?”
  2. A. “No.”
  3. Q. “How would somebody involved in those conversations have known that you were referring to something more broadly than those specific lands that the Nation already had in trust?”
  4. A. “Because the vast majority of the people who were involved in those conversations would have understood the ability to acquire additional Indian lands.”
  5. Q. “And how would they have understood about the ability to acquire additional Indian lands?”
  6. A. “Most of them would have read the IGRA (federal Indian Gaming Regulatory Act).”
  7. Q. “But that doesn’t—the IGRA doesn’t give anybody any specific right to acquire additional Indian lands. Right?”
  8. A. “No, it does not.”

On pages 87-89 the line of questioning corroborates the TON’s belief that it can locate additional casinos in the Phoenix metro area. Mr. Quigley asserts the same belief that can be found in the above reference to the judge’s questioning of the TON’s attorney Seth Waxman in December of 2015.

  1. Q. “Is it correct that under the Nation’s interpretation of the Gila Bend Act (IGRA) and the compact, it could, if it so chose, and if this made economic sense, close all of its existing facilities and locate four casinos in the Phoenix market?”
  2. A. “With the exception of the limitation on a fourth facility, if the Nation operates four facilities, the compact has no limitations on where the Nation’s Indian lands it can place its facilities other than the mile-and-a-half restriction.”
  3. Q. “So if – if, for example, the Nation were to acquire under the Gila Bend Act (IGRA) and have taken into trust parcels of land that were – it’s understood if they were taken into trust, they would be on unincorporated land on county islands or directly across the municipal limits of Chandler, Mesa, Tempe, and Scottsdale, that would be acceptable under the Nation’s view of what the compact limitation are with respect to the location of facilities?”
  4. A. “What do you mean when you say ‘that would be acceptable’?”
  5. Q. That would be legally permissible. It’s the Nation’s position that that would be allowed by the compact?”
  6. A. “If the Nation acquired lands under the Gila Bend Act (IGRA) in the locations that you specified, and if those lands were taken into trust, and if those lands were eligible for gaming, then the compact, I believe would allow the Nation to conduct gaming on those lands, assuming they met the requirements of the mile and a half between facilities and the met the requirements for the fourth facility.”

Clearly both attorneys representing the Tohono O’odham Nation, Waxman and Quigley, hold the legal opinion and have counseled their client such that the TO can establish additional casinos in the Phoenix metro area. We know that the TO owns additional land in the area. We don’t know how much or where. It may just be a matter of time. If the TO prevail against the state in court and is granted a liquor license at the Glendale casino, katy bar the door…more casinos will come.

Did you know that there are approximately 200 parcels of unincorporated land (county islands) in the Phoenix metro area? The TO used a shell company to buy the land in Glendale and they could do the same to acquire additional parcels. Are you ready to have a casino near your neighborhood in Phoenix, Scottsdale, Tempe, Chandler, Gilbert or Mesa? It may happen.

The consequences of such action would be catastrophic. It would provide incentive needed by the state legislature to open gaming to non-Tribal entities. If they were to do so the state would receive sales tax, property tax, etc. from non-Tribal casinos. It makes the prospect very attractive at a time when revenues often times do not cover all of the state’s needs. Currently there is no tax per se paid by the Tribal casinos. Under the existent compact there is what is defined as “tribal contributions.” They are distributed as follows:

  • 12% distributed by the Tribes to the cities, towns and counties of their choosing for community services and public safety programs for local governments
  • The remaining 88% of the Tribes’ total annual contribution goes to the Arizona Benefits Fund on a quarterly basis and provides funding for the Arizona Department of Gaming and the Office of Problem Gambling. The remaining funds are distributed as follows:
  • 56% to instructional improvement for schools
  • 8% to trauma and emergency care
  • 8% to Arizona tourism
  • 8% to wildlife conservation

It would blow up the existent voter approved state Gaming Compact of 2002 and would make it very difficult to negotiate and to seek voter approval on a new compact as voters would be reluctant to rely on any public statements about its provisions. After all, it was sold to the voters with the promise that “there would be no new casinos in the Phoenix Metropolitan Area.” As Mr. Quigley stated on page 177 of his deposition, “I do not think it would be a fair statement to say that one could rely on any statements in there (referring to the 2002 voter information guide) as necessarily being correct.” If the TO has a bridge to sell, would you buy it?

© Joyce Clark, 2016

FAIR USE NOTICE

This site contains copyrighted material the use of which is in accordance with Title 17 U.S. C., Section 107. The ‘fair use’ of any such copyrighted material as provided for in Section 107 of the US Copyright Law and who have expressed a prior interest in receiving the included information for research and educational purposes. For more information material on this site is distributed without profit to those who have not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democratic, scientific and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such material. For more information go to http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use,’ you must obtain permission from the copyright owner.

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