MGM files 'provisional' memorandum siding with Interior in third-casino lawsuit

MGM Resorts supports the U.S. Department of the Interior’s claim that a lawsuit seeking to compel the department to act on gaming amendments between the state and the Mashantucket Pequot and Mohegan tribes is flawed because the Mashantuckets never signed a so-called “compact” with the state.

In a “provisional memorandum” submitted Monday, MGM, which is not a party to the suit, nevertheless states its position. The memorandum, attorneys for MGM write, will only be filed “if the Court subsequently grants MGM’s pending motion for leave to intervene or permits MGM to participate as amicus curiae (friend of the court).”

MGM has asked to intervene on the side of the defendants in the suit the state and the tribes filed Nov. 29 against the Interior Department and Ryan Zinke, the Interior secretary. The suit seeks to compel the department to act on amendments that reflect the tribes’ plan to jointly develop a casino in East Windsor, where it would directly compete against a resort casino MGM is building in Springfield, Mass.

Interior officials declined to act on the amendments within a 45-day period — inaction the state and the tribes contend constitutes “deemed approval” under federal regulations. Those regulations also specify that a compact deemed approved takes effect when notice of the approval is published in the Federal Register, which must occur within 90 days of submission.

Two weeks ago, attorneys for Interior moved for “partial dismissal” of the suit, arguing that the Mashantuckets lack standing in the matter because they never signed a gaming compact with the state. Instead, the tribe’s Foxwoods Resort Casino has operated under procedures approved by the Interior secretary.

“Such procedures are subject to a different legal framework than compacts, and that framework — unlike the one for compacts — does not mandate that amendments are 'deemed approved' after 45 days,” attorneys for MGM write in the provisional memorandum.

The Mohegans signed a compact with the state that governs operations at the tribe's Mohegan Sun casino. 

A spokesman for the tribes, Andrew Doba, took little heed of the MGM memorandum.

“MGM is not a party to the lawsuit so anything they submit will not be considered by the court,” he wrote in an email. “We strongly oppose the motion to dismiss for many reasons, including that the position currently taken by DOI directly contradicts the position they have taken not only for the last 2-3 years specific to this issue; but since 1991 when they published the Pequot-State compact as procedures.”

It’s been suggested that the state and the tribes could eliminate the need for Interior approval of the amendments through a change in the language of the law that authorized the East Windsor casino.

Asked about the possibility of a “legislative fix,” Doba declined to comment.

In court papers filed late last week, all parties to the suit proposed a revised schedule for filing various briefs, extending deadlines into late March.

The tribes have said they intend to proceed with demolition work at the East Windsor site by Feb. 28. Doba said that is still the plan.

A vacant Showcase Cinemas building now occupies the site, which is off Exit 45 of Interstate 91.


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