Legal wrangling continues over Senecas' Buffalo casino
By MATT CHANDLER
[email protected] | 716-541-1654
Another year has come and gone, and the legal battle over the operation of an Indian casino in downtown Buffalo remains unresolved.
Community groups, most notably Citizens for a Better Buffalo (CBB), have fought for more than seven years to block the Seneca Buffalo Creek Casino. The group filed three separate lawsuits against the Department of Interior challenging the validity of rules by which the casino operates. (CCB is unable to sue the Senecas directly because the Senecas are a sovereign nation). The current suit is in the hands of U.S. District Judge William Skretny.
In the meantime, Seneca Gaming continues to operate a temporary casino on the downtown property while moving forward with plans to build a permanent, albeit scaled-back, casino at the site. The Senecas also are at odds with the state over what both sides are claiming as violations of the compact under which Indian casinos operate. The Senecas have withheld more than $500 million in payments to the state that represent shared revenue from slot machines at the Seneca casinos.
Across the aisle, Gov. Andrew Cuomo is advancing the idea of creating non-Indian casinos across the state, including one in Niagara Falls that would compete directly with Seneca Niagara Casino. He claims private casinos could generate double the profits that the state will reap under the current agreement with the Senecas.
Citizens for a Better Buffalo invited community supporters last week to the Buffalo Transportation Pierce-Arrow Museum, near the site of the Seneca Buffalo Creek Casino, to discuss the latest lawsuit and to reiterate why it believes the casino will be an economic drain on the people of Buffalo.
Dianne Bennett is the group's leading voice. She said the current lawsuit comes down to challenging the land on which the casino is being built.
"The casino is illegal because it is not situated on Indian land," she said. "But even if it is (deemed to be) Indian land, gambling is prohibited because the land was acquired after IGRA (the Indian Gaming Regulatory Act) placed a prohibition on gambling on land acquired after a certain date, which this land was."
Seneca Gaming Corp. responds
Though Seneca Gaming Corp. declined to be interviewed for this story, it released through a public relations representative the following statement to the Buffalo Law Journal regarding the Seneca Buffalo Creek Casino:
We very much appreciate our ongoing relationship with both the City of Buffalo and our neighbors in the community surrounding the Seneca Buffalo Creek Casino. Seneca Gaming Corporation has been one of the region's leaders in private sector job creation and employment over the past decade. Our properties currently employ 350 residents of the City of Buffalo, with total annual compensation of more than $15 million, and we will continue to generate jobs for the people of Buffalo and throughout Western New York. The new Seneca Buffalo Creek Casino, a $130 million private investment, will create 600 construction period jobs, representing $32 million in wages, and 500 direct jobs, with $52 million in annual payroll, and will generate $170 million in direct and indirect spending with local companies each year. Moreover, the new facility will also complement the other exciting developments taking place in the Inner Harbor. As a local company, our interest and commitment to seeing the City and region succeed are strong, which is why, in addition to our employment and business partnerships, we have committed to other investments in the Inner Harbor, and First Ward communities, including our allocation of $1 million for a host of community beautification and improvement projects, our recent commitment to restore crumbling sidewalks on both sides of the street surrounding the Seneca Nation's Buffalo Creek Territory, and additional initiatives that will benefit the redevelopment of the Inner Harbor area of downtown Buffalo.
Bennett expressed frustration that despite "winning the first two lawsuits," the temporary casino continues to operate as the permanent facility moves closer to reality.
"People ask me all the time, 'When is Judge Skretny going to rule?' And I wouldn't take a gamble on that one," she said.
According to Bennett, during meetings with both sides at the end of last year, the judge indicated a desire to move the case along.
"So we would hope that in the scheme of a seven-plus-year lawsuit, it won't be much longer," she said.
Still, regardless of how Skretny rules, she said the losing side is certain to appeal to the Second Circuit, making a resolution to the case potentially years away.
Asked about the group's position regarding private casinos cropping up in Western New York, Bennett said there is a singular focus.
"We have taken the position that our eye is on one ball, and that is a downtown urban casino," she said. "I think you will see more opinions coming out in the future from groups that oppose Cuomo's proposal, but not from CBB itself."
Buffalo Common Council Member Michael LoCurto has been a vocal opponent of Seneca Buffalo Creek Casino and was one of three Common Council members to vote against the sale of Fulton Street to the Senecas, a move that paved the way for the casino plans to advance. He was on hand for the CBB's recent presentation and said he perceives the Senecas being less than forthcoming about their original plans. The initial plan called for about one-third of the land to be dedicated to green space and include a pond and creek.
"What they have planned now is what I call one big surface lot with a building in the middle," he said.
Gone is the tower hotel, the 2,500-space parking garage and the pond and creek that were part of the original plan. The Senecas have stated that the economic downturn necessitated scaling back construction.
"When we foreclose on people's houses who don't pay their taxes, can they say, 'Well, it's been an economic downturn. I'm just not going to pay my taxes'? Of course not," LoCurto said.
The city was duped into selling Fulton Street, he said.
"It's ironic because their argument for Fulton Street was that they needed it for a pond, which of course they aren't building anymore," he said.
Bennett said not only did the Senecas renege on promises made to Buffalo in order to secure that sale, they haven't even managed to get a scaled-back casino built.
"Right now we have nothing but a shed filled with slot machines taking money from poor people," she said.
Representatives of Seneca Gaming, including CEO Cathy Walker, declined to be interviewed for this story. Instead, they sent an email statement that reads, in part:
The new Seneca Buffalo Creek Casino, a $130 million private investment, will create 600 construction period jobs, representing $32 million in wages, and 500 direct jobs, with $52 million in annual payroll, and will generate $170 million in direct and indirect spending with local companies each year. Moreover, the new facility will also complement the other exciting developments taking place in the Inner Harbor.
The CBB and others said those numbers are smoke-and-mirrors and a far cry from what the Senecas initially put forth.
"What they promised was a false promise from the beginning," LoCurto said. "They never intended to build the original casino and they never intended to market this outside of the region. They said those things to sell the city on it."
Joe Lippes, who recently retired as the owner of Rue Franklin restaurant in downtown Buffalo, was among the 70 or so who came out to voice opposition to a downtown casino.
"I've talked to people with the New York State Restaurant Association and they all agree it is an uneven playing field," he said of the proposed casino, which will include food-and-beverage offerings. "The Senecas aren't paying sales taxes, no property taxes and they allow smoking. And it is unfair that the leadership of Buffalo has allowed this to exist in downtown Buffalo."
Sam Magavern, co-director of the Partnership for the Public Good, said that when it comes to food and beverages, the Senecas annually give away more than half of their offerings at casinos.
"How can our private restaurants be expected to compete with that?" he told the crowd? "The answer is they can't."
For more information, go to www.ppgbuffalo.org; www.senecabuffalocreekcasino.com