Poker News

I. Nelson Rose

On February 5, 2008, Californians will vote on whether four tribes can triple the number of slot machines in their casinos, from 8,000 to 25,000.

But, no matter who wins, the losers will sue. And they will have good arguments on their side.

Opponents, primarily unions and competing tribal casinos and racetracks, believe this legal mess was created by underhanded attempts to guarantee that these four tribes would get their slots, even if the voters disapproved.

I believe the problems were the result of federal and state bureaucrats following what they thought was the letter of the law, without using common sense.

This particular fight started a couple of years ago, when Gov. Schwarzenegger signed compacts giving these tribes more slots in exchange for the state receiving up to 25 percent of the net gaming revenue. The compacts had to be approved by the State Legislature. The Senate approved immediately. But opponents stalled the approvals in the Assembly until the tribes agreed to a few additional terms in side agreements. This creates the first legal question: Are side agreements between the state and tribes enforceable, when they are not part of the compact?

The opponents did not give up. They launched referenda campaigns and got enough signatures to put the compacts on the February 5 ballot. Meanwhile, Gov. Schwarzenegger, with approvals in hand from the State Legislature, signed the compacts and gave them to state Secretary of State Debra Bowen to forward to the federal Department of the Interior. That she did, because she read state law as requiring her to do so.

This creates the second set of lawsuits. California law does require her to forward approved compacts. But were the compacts approved? Technically, the State Legislature’s approval has to be in the form of a statute. Statutes normally don’t take effect until January 1 of the following year. So, maybe Bowen sent the compacts too soon.

Plus, under California law, normal statutes do not take effect at all, once they have been challenged by a referendum. Opponents argue the approvals only take effect if the voters say they do in February. The Secretary of Interior is not supposed to rubber-stamp these compacts. The Indian Gaming Regulatory Act requires that he review them to see that they meet all legal requirements. But government bureaucrats being bureaucrats, his office apparently misplaced the compacts. No big deal … except the Act also says that the compacts are “deemed approved” if the Secretary fails to take any action on them for 45 days.

These compacts were big news. Anyone in the Dept. of Interior with common sense would have treated them with special care. And the Secretary should have returned them to California, or at least asked questions whether the approvals by the State Legislature were still valid. Even after screwing up for 45 days, the Secretary should have done something, such as ask for guidance from the courts. Instead, he announced that the compacts had been deemed approved.

In the uproar that followed, someone noted that federal law requires more than an announcement by the Secretary. To be official, the Secretary’s approval must be published in the Federal Register. So, all the Secretary had to do was not publish his approval until after the February election.

On December 19, this Bush appointee published his approval in the Federal Register.

When asked why he did such a bonehead thing, his reply was pure bureaucratese: Once deemed approved, the law required him to publish the approval.

So one way to look at the February referenda is not that it will decide whether there is a massive expansion of tribal casino gaming. Rather, it is a make-work project for lawyers.

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